FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF

AMERICA,

Plaintiff-Appellee,

v.

VICTOR OROZCO,

Defendant-Appellant.

No. 15-10385

D.C. No.

3:13-cr-00048-MMD-WGC-1

OPINION

Appeal from the United States District Court

for the District of Nevada

Miranda M. Du, District Judge, Presiding

Argued and Submitted October 20, 2016

San Francisco, California

Filed June 1, 2017

Before: A. Wallace Tashima and Milan D. Smith, Jr.,

Circuit Judges, and Edward R. Korman,* Senior District

Judge.

Opinion by Judge Korman

* The Honorable Edward R. Korman, Senior District Judge for the

U.S. District Court for the Eastern District of New York, sitting by

designation.
2 UNITED STATES V. OROZCO

SUMMARY**

Criminal Law

The panel reversed the district court’s denial of a motion

to suppress, vacated a conviction for two counts of drug

possession arising from a stop of a tractor-trailer driven by

the defendant, and remanded for further proceedings.

Nevada Highway Patrol troopers made the stop in order

to investigate criminal activity, even though they lacked the

quantum of evidence necessary to justify the stop. The panel

held that the stop was not justified under the administrative

search doctrine, which permits stops and searches, initiated in

furtherance of a valid administrative scheme, to be conducted

in the absence of reasonable suspicion or probable cause. 

The panel held that an administrative scheme allowing

Nevada law enforcement officers to make stops of

commercial vehicles and conduct limited inspections without

reasonable suspicion was valid on its face because its purpose

was to ensure the safe operation of commercial vehicles. The

objective evidence in this case, however, established beyond

doubt that the stop of the defendant’s vehicle was a pretext

for a stop to investigate information of suspected criminal

activity short of that necessary to give rise to reasonable

suspicion. The stop would not have been made in the absence

of a tip that the defendant was possibly carrying narcotics. 

Accordingly, the stop was a pretextual stop that violated the

Fourth Amendment. The panel emphasized that the presence

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. OROZCO 3

of a criminal investigatory motive, by itself, does not render

an administrative stop pretextual, and nor does a dual

motive—one valid and one impermissible. Rather, the

defendant must show that the stop would not have occurred

in the absence of an impermissible reason.

COUNSEL

Justin J. Bustos (argued), Dickinson Wright PLLC, Reno,

Nevada, for Defendant-Appellant.

William R. Reed (argued), Assistant United States Attorney;

Elizabeth O. White, Appellate Chief; United States

Attorney’s Office, Reno, Nevada; for Plaintiff-Appellee.

OPINION

KORMAN, District Judge:

This appeal arises out of the stop of a tractor-trailer,

driven by defendant-appellant Victor Orozco, on a highway

in Nevada. The Nevada Highway Patrol troopers made the

stop in order to investigate criminal activity, even though

they lacked the quantum of evidence necessary to justify the

stop. Ultimately, the stop led to a consent search, during

which officers found heroin and methamphetamine, which

served as the basis for Orozco’s indictment and conviction on

two counts of possession. The question in this appeal is

whether the stop was justified under the administrative search

doctrine, which permits stops and searches, initiated in

furtherance of a valid administrative scheme, to be conducted

in the absence of reasonable suspicion or probable cause.
4 UNITED STATES V. OROZCO

Nevada law enforcement officers may make stops of

commercial vehicles and conduct limited inspections without

reasonable suspicion “[t]o enforce the provisions of laws and

regulations relating to motor carriers, the safety of their

vehicles and equipment, and their transportation of hazardous

materials and other cargo.” Nev. Rev. Stat. § 480.360. This

administrative scheme is valid on its face because its purpose

is to ensure the safe operation of commercial vehicles—not

to provide cover for criminal investigatory purposes, such as

drug interdiction, for which reasonable suspicion or probable

cause is lacking.

In practice, however, this administrative scheme mayalso

be used as a pretext for conducting stops to investigate

criminal activity. Indeed, one of the Nevada troopers

involved in the stop at issue here testified that it was

“common knowledge that if you suspect criminal activity,

that you can use your administrative powers to make a stop.” 

With respect to the stop of the vehicle at issue here, the

Nevada trooper testified that he may have had a discussion

with his colleague, and possibly his sergeant, as to how “you

could utilize the administrative inspection to stop this truck

that you believed was hauling marijuana–or

methamphetamine.” Specifically, he said, “I don’t know if

we had a discussion, but it’s common knowledge that we can

do that, yes.”

Under these circumstances, it does not matter that the

Nevada administrative scheme was valid on its face, where

the objective evidence—detailed below—establishes beyond

doubt that this stop was a pretext for a stop to investigate

information of suspected criminal activity short of that

necessary to give rise to reasonable suspicion. The stop

would not have been made in the absence of the tip that
UNITED STATES V. OROZCO 5

Orozco was possibly carrying narcotics in his tractor-trailer. 

This fits the classic definition of a pretextual stop that

violates the Fourth Amendment.

The consent to search that was obtained after the driver of

the truck, Victor Orozco, had been detained for

approximately an hour was the fruit of the unlawful stop. So

too was the evidence found pursuant to the consent search. 

We now proceed to a more thorough discussion of the

relevant factual background and legal principles.

BACKGROUND

I. Nevada’s Administrative-Search Scheme

Because the argument in support of the validity of the

stop of Orozco’s tractor-trailer is intertwined with the

administrative scheme that Nevada has adopted to regulate

commercial motor vehicles, we begin with a discussion of

that regulatory scheme. The Nevada Legislature has charged

the Nevada Transportation Authoritywith regulation of motor

carriers such as the tractor-trailer driven by Orozco. It is the

duty of the Department of Public Safety, and its subsidiary

arm, the Nevada Highway Patrol, to enforce the regulations

adopted by the Authority. Nev. Rev. Stat. § 706.151(1). 

Nevada law provides for the Authority to “employ

compliance enforcement officers whose duties shall include,

without limitation, enforcement activities to ensure motor

carriers are operating in compliance with state statutes and

regulations, conducting operational inspections of motor

carriers and investigating complaints against motor carriers.” 

Nev. Rev. Stat. § 706.176(4). These officers may “examine,

at any time during the business hours of the day, the books,

papers and records of any fully regulated carrier, and of any
6 UNITED STATES V. OROZCO

other common, contract or private motor carrier doing

business in this State to the extent necessary for their

respective duties.” Nev. Rev. Stat. § 706.171(1)(d).

Nevada has also enacted a Commercial Vehicle Safety

Plan (“CVSP”), which complies with the Motor Carrier

Safety Assistance Program’s requirements for receiving

federal highway funding by, inter alia, requiring Nevada

Highway Patrol troopers to conduct inspections in a manner

consistent with “the North American Standard [“NAS”]

Inspection procedure.” 49 C.F.R. § 350.211(d). The Motor

Carrier Safety Assistance Program “is a Federal grant

program that provides financial assistance to States to reduce

the number and severity of accidents and hazardous materials

incidents involving commercial motor vehicles.” 49 C.F.R.

§ 350.101(a). Nevada’s CVSP provides that the Nevada

Highway Patrol’s “enforcement activities” will include

“scheduled and unannounced roadside inspections.” STATE

OF NEVADA, COMMERCIAL VEHICLE SAFETY PLAN 7 (2011)

(emphasis supplied), available at http://nhp.nv.gov/

uploadedFiles/nhpnvgov/content/CE/CVSP2011.pdf

[https://perma.cc/P6VZ-R4F9]. A “NAS Level III”

inspection—the inspection at issue here—includes not only

a stop of a vehicle, but an entry into the cab for a full review

of the driver’s papers, although it excludes any inspection of

the mechanical fitness of the vehicle. It is geared toward

preventing and deterring dangerous driving by, for example,

including a review of the driving log, which would reveal

whether a driver had exceeded the maximum time allowed on

the road, among other possible safety violations.

Nevertheless, “compliance enforcement officers” include

Nevada Highway Patrol troopers who are trained to conduct

NAS inspections but are also charged with enforcement of
UNITED STATES V. OROZCO 7

Nevada’s criminal laws, including “[m]aking arrests for

crimes committed in their presence or upon or adjacent to the

highways of this State.” Nev. Rev. Stat. § 480.360(1)(b). 

This merger of administrative and law enforcement

responsibilities in Nevada Highway Patrol troopers,

combined with the unconstrained discretion they have in

selecting which vehicles to stop and search, accounts for the

candid admission by the troopers who conducted the stop of

Orozco’s truck that it was “common knowledge that if you

suspect criminal activity, that you can use your administrative

powers to make a stop.”

Notwithstanding the temptation for law enforcement

officers to use their administrative powers as a pretext to

investigate criminal activity, we previously held that a

comparableMissourischeme involving random,suspicionless

inspection stops of commercial vehicles was valid. See

United States v. Delgado, 545 F.3d 1195 (9th Cir. 2008). We

based our holding in part on the fact that “[t]he privacy

expectations of commercial truck drivers are markedly less

than those of the public in general. The trucking industry is

highly regulated and drivers have long been subjected to

federal regulation of their qualifications.” Id. at 1201 n.3

(internal quotation marks omitted).

Prior to Delgado, the Supreme Court, in Delaware v.

Prouse, 440 U.S. 648 (1979), held that even though

automobiles are subject to “pervasive and continuing

governmental regulation and controls,” South Dakota v.

Opperman, 428 U.S. 364, 368 (1976), the police could not,

absent reasonable suspicion, stop individual vehicles for the

purpose of checking the driver’s license and the registration

of the automobile. Prouse, 440 U.S. at 663. Prouse,

however, made clear that it was not “preclud[ing] the State of
8 UNITED STATES V. OROZCO

Delaware or other States from developing methods . . . that

involve less intrusion or that do not involve the unconstrained

exercise of discretion. Questioning of all oncoming traffic at

roadblock-type stops is one possible alternative.” Id.

Moreover, as Justice Blackmun observed in his concurring

opinion, other alternatives include “not purely random stops

(such as every 10th car to pass a given point) that equate

with, but are less intrusive than, a 100% roadblock stop.” Id.

at 664 (Blackmun, J., concurring). Thus, Prouse holds “only

that persons in automobiles on public roadways may not for

that reason alone have their travel and privacy interfered with

at the unbridled discretion of police officers.” Prouse,

440 U.S. at 663 (emphasis supplied). What Prouse therefore

requires “are neutral selection criteria within a system which

does not carry with it any significant chance of undetectable

subterfuge.” 5 WAYNE R. LEFAVE, SEARCH AND SEIZURE,

410–11 (5th ed. 2012).

The stop of Orozco’s commercial truck demonstrates

why, as a practical matter, such “neutral selection criteria”

may in fact be necessary to withstand the temptation for law

enforcement officers to use their administrative powers as a

pretext, and to defend against a claim that a search was

pretextual.

II. The Stop of Orozco’s Commercial Truck

At some point in spring 2013, Trooper Adam Zehr

stopped a commercial trucker, who indicated that he had

information relating to a trucking company that could

possibly be transporting drugs. Zehr put this tipster in contact

with Detective Sergeant Chris Brewer, of the Nevada

Division of Investigations. Shortly thereafter, on April 26,

Brewer received a call from the tipster regarding a specific
UNITED STATES V. OROZCO 9

commercial truck that “may possibly have controlled

substances.” The tipster told Brewer that this truck was red,

with a white box trailer and Michigan license plates.

The next day, April 27, 2013, the tipster again contacted

Brewer to provide an approximate time when the tractortrailer would be traveling through White Pine County,

Nevada, where Brewer was stationed. After receiving this

information, Sergeant Brewer “immediately” contacted

Trooper Zehr to “advise[] him of the vehicle and its location,”

and told him “that he would have to develop his own

probable cause to get the vehicle stopped” because “there

could possibly be drugs in the vehicle,” but “[t]here was

nothing solid.” Trooper Boynton testified that, at the time of

the stop, he knew “through some hearsay that there was a tip

about some possible transportation of narcotics.” Moreover,

Trooper Zehr testified that at least one of the reasons that he

made the stop was because he had been advised that Orozco’s

vehicle was “possibly engaging in criminal activity and could

possibly have drugs in the vehicle.”

After Zehr’s conversation with Brewer, Zehr and Trooper

Boynton “knew to be on the lookout for” Orozco’s truck. 

They drove out to Mile Post 37 in White Pine County to wait

for it. When the truck arrived, Zehr had to pull out behind a

different commercial truck and drive past it in order to pull

over Orozco’s truck. Indeed, Troopers Zehr and Boynton

acknowledged that, even before they saw the truck, they

planned to stop it. Thus, Zehr gave the following testimony:

Q: Do you recall what your conversations

were with Trooper Boynton about locating

and stopping this truck?
10 UNITED STATES V. OROZCO

A: Yes.

Q: And what were those?

A: If the truck is located, we’ll both stop

it, or one of us will stop it, or one of us

will be close for backup for a more high

risk traffic stop.

Around 4:30 PM, as expected, they saw a red truck with

Michigan license plates drive past Mile Post 37. Zehr, taking

the lead, pulled the truck over. Boynton also pulled his car

behind the truck and assisted Zehr in questioning Orozco.

Although the troopers chose to target Orozco’s truck

because of the information in the tip, Zehr and Boynton went

through the motions of performing a NAS Level III

paperwork inspection. Notwithstanding numerous violations

of the commercial vehicle regulations discovered in the

course of the paperwork inspection, they did not issue a

citation. Instead, while the inspection was ongoing, Zehr

instructed Trooper Kelly Barney (“Barney”), another police

officer who was stationed nearby with a drug-sniffing dog, to

call the El Paso Intelligence Center (“EPIC”) (an inter-agency

facilitythat provides intelligence support to law enforcement)

regarding Orozco’s truck. Barney called EPIC, and learned

that Orozco had made several recent border crossings. Zehr

and Barney also discussed the possibility of performing a

canine sniff of the tractor-trailer, using the drug-sniffing dog. 

Although they did not issue a citation, they did ask for, and

obtain, consent to search the tractor-trailer. Barney then

arrived with the dog, who made a positive alert as to the

presence of drugs, which was confirmed when the troopers

found a duffel bag containing twenty-six pounds of
UNITED STATES V. OROZCO 11

methamphetamine and six pounds of heroin in the sleeper

compartment.

III. The Motion toSuppress and The District Court’s

Ruling

Prior to trial, Orozco moved to suppress the drug evidence

on the ground that the NAS level III inspection was an

impermissible pretext “motivated by a desire to search for

evidence of drug trafficking, rather than to conduct a

commercial vehicle inspection.” United States v.Orozco, No.

3:13-cr-48, 2015 WL 370091, at *3 (D. Nev. Jan. 28, 2015). 

The district court acknowledged that information from an

informant that Orozco was possibly carrying narcotic drugs

“was part of the reason Trooper Zehr stopped Orozco’s

vehicle for an administrative inspection.” Id. Nevertheless,

because Zehr testified that he also initiated the stop “to

conduct a safety inspection,” the district judge framed the

question presented as “whether such dual purposes render an

otherwise valid administrative stop illegal.” Id. She did so

without undertaking an analysis of the objective evidence to

determine that Zehr’s testimony was credible. Thus, she went

on to hold that “an officer having dual motives does not make

a warrantless search pretextual, so long as it is conducted

pursuant to a lawful administrative scheme with a

constitutionally permissible motivation.” Id. at *4. Because

NAS Level III safety inspections are part of a facially valid

administrative scheme, the district judge held that the stop of

Orozco’s truck was lawful.

On this appeal from a judgment convicting him of two

counts of possession with intent to distribute a controlled

substance for which he was sentenced to 192 months in

prison, Orozco argues that the district court erred by denying
12 UNITED STATES V. OROZCO

his motion to suppress on the ground that the “NAS Level III

inspection” was a pretext to investigate criminal activity. We

agree with the district court that a dual motive for a

suspicionless stop does not necessarily render it

impermissible. Nevertheless, we reverse the denial of

Orozco’s motion to suppress and vacate his judgment of

conviction, because the objective evidence clearly

demonstrates that, but for the officers’ belief that Orozco

might be carrying drugs, the stop never would have

happened.

DISCUSSION

The Fourth Amendment protects against “against

unreasonable searches and seizures.” U.S. Const. amend. IV. 

“It is well established that a vehicle stop . . . effectuates a

seizure within the meaning of the Fourth Amendment.” City

of Indianapolis v. Edmond, 531 U.S. 32, 40 (2000); see also

Brower v. Cty. of Inyo, 489 U.S. 593, 596–97 (1989) (holding

that a Fourth Amendment seizure occurs “when there is a

governmental termination of freedom of movement through

means intentionally applied”). Where the circumstances of

a vehicle stop, viewed objectively, are sufficient to justify the

detention based on either reasonable suspicion or probable

cause that a crime has been committed, the subjective intent

of the law enforcement officers is irrelevant. See Ashcroft v.

al-Kidd, 563 U.S. 731, 736 (2011).

We do not decide whether the Nevada troopers had

reasonable suspicion for the stop, because the U.S. Attorney

waived this argument by failing to address it in his answering

brief. See United States v. Gamboa-Cardenas, 508 F.3d 491,

402 (9th Cir. 2007) (holding that an argument not addressed

in an answering brief is waived). For the purposes of this
UNITED STATES V. OROZCO 13

appeal, we assume there was no reasonable suspicion for the

stop.

A different rule applies to “special-needs and

administrative-search cases, where ‘actual motivations’ do

matter.” Id. (quoting United States v. Knights, 534 U.S. 112,

122 (2001) (emphasis supplied). Significantly, in New York

v. Burger, 482 U.S. 691 (1987), the Supreme Court upheld

a regulatory scheme allowing for warrantless inspection of

automobile junkyards. Such inspections required neither

probable cause nor reasonable suspicion because the New

York Legislature had a “proper regulatory purpose[] for

enacting the administrative scheme” authorizing warrantless

inspections of vehicle dismantling businesses, and because

the statute authorizing the search “was not . . . a ‘pretext’ to

enable law enforcement authorities to gather evidence of

penal law violations.” Id. at 716–17 n.27. More

significantly, the Burger Court observed that there was “no

reason to believe” that the inspection in that case “was

actually a ‘pretext’ for obtaining evidence of respondent’s

violation of the penal laws.” Id. (citations omitted).

Indeed, in Whren v. United States, the Supreme Court

acknowledged its past “disapproval of police attempts to use

valid bases of action against citizens as pretexts for pursuing

other investigatory agendas.” 517 U.S. 806, 811 (1996). 

Thus, it observed that, “in Florida v. Wells, 495 U.S. 1, 4

(1990), we stated that ‘an inventory search must not be a ruse

for a general rummaging in order to discover incriminating

evidence’; that in Colorado v. Bertine, 479 U.S. 367, 372

(1987), in approving an inventory search, we apparently

thought it significant that there had been ‘no showing that the

police, who were following standardized procedures, acted in

bad faith or for the sole purpose of investigation’; and that in
14 UNITED STATES V. OROZCO

New York v. Burger, 482 U.S. 691, 716–717 n. 27 (1987), we

observed, in upholding the constitutionality of a warrantless

administrative inspection, that the search did not appear to be

‘a “pretext” for obtaining evidence of . . . violation of . . .

penal laws.’” Id. (ellipses in original).

Similarly, the Supreme Court held in South Dakota v.

Opperman, 428 U.S. 364 (1976), that “there is no suggestion

whatever that this standard [inventory search] procedure,

essentially like that followed throughout the country, was a

pretext concealing an investigatory police motive.” Id. at

376. And again, in Edmond, decided after Whren, the

Supreme Court took cognizance of its disapproval of

pretextual searches that were undertaken pursuant to valid

administrative schemes. 531 U.S. at 45. More recently, the

Supreme Court held that although “[a] judicial warrant and

probable cause are not needed where the search or seizure is

justified by special needs, beyond the normal need for law

enforcement,” al-Kidd, 563 U.S. at 736 (internal quotation

marks omitted), “those exceptions do not apply where the

officer’s purpose is not to attend to the special needs or to the

investigation for which the administrative inspection is

justified.” Id. at 737 (emphasis supplied).

Because of this “reluctan[ce] to recognize exceptions to

the general rule of [requiring] individualized suspicion where

governmental authorities primarilypursue their general crime

control ends,” Edmond, 531 U.S. at 43, the Supreme Court,

in Edmond, extended the inquiryinto purpose from individual

stops to checkpoint programs themselves. Thus, Edmond did

not involve a challenge to a particular administrative search

on the ground that the administrative rationale was a pretext. 

Instead, the plaintiffs sought injunctive relief to stop the City

of Indianapolis from conducting a program of roadblock
UNITED STATES V. OROZCO 15

stops, for which reasonable suspicion was not required. Id.

at 36. This scheme had the primary programmatic purpose of

“the discovery and interdiction of illegal narcotics.” Id. at 34. 

Stops made for this purpose, the plaintiffs argued, could only

be made based on reasonable suspicion or probable cause. 

The City argued that the intrusion occasioned by such a stop

was the same as if the roadblocks were designed solely to

check for a license or the intoxication of the driver—and

therefore could be justified without reasonable suspicion as

a special needs or administrative search. Id. at 47–48. The

City argued that “where the government articulates and

pursues a legitimate interest for a suspicionless stop, courts

should not look behind that interest to determine whether the

government’s ‘primary purpose’ is valid.” Id. at 45 (internal

quotation marks omitted).

The Supreme Court rejected this argument and held that

the programmatic purpose of an administrative scheme “may

be relevant to the validity of Fourth Amendment intrusions

undertaken pursuant to a general scheme without

individualized suspicion.” Id. at 45–46. An inquiry into

programmatic purpose was necessary because, “in

determining whether individualized suspicion is required, we

must consider the nature of the interests threatened and their

connection to the particular law enforcement practices at

issue.” Id. at 42–43. Ultimately, after considering the nature

of the interest threatened—“the severe and intractable nature

of the drug problem,” id. at 42— the Supreme Court held that

the narcotics detection could not be justified as a valid

administrative purpose.

While Edmond had no occasion to address directly the

purpose of law enforcement officers who act to enforce a

valid administrative scheme, there is one arguablyambiguous
16 UNITED STATES V. OROZCO

sentence at the end of the opinion in which the Supreme

Court cautioned that “the purpose inquiry in this context is to

be conducted only at the programmatic level and is not an

invitation to probe the minds of individual officers acting at

the scene.” Id. at 48. We do not read this dictum as

undermining the long line of Supreme Court cases

demonstrating a concern for pretext, even where searches or

seizures are undertaken by those charged with enforcing a

valid administrative scheme. Instead, it appears to apply, as

the Supreme Court said, “in this context”—namely, in the

context of an invalid programmatic scheme like the one at

issue in Edmond. In this context, because the drug

checkpoint scheme violates the Fourth Amendment, the fact

that the individual officer is not looking for evidence of crime

will not salvage the validity of a suspicionless stop.

The present case involves the inverse of Edmond.

Because the programmatic purpose of the Nevada inspection

scheme may be valid, a stop undertaken in furtherance of that

purpose does not violate the Fourth Amendment, even if

reasonable suspicion or probable cause is lacking. 

Nevertheless, it could hardly be that a suspicionless stop

made for reasons unrelated to the programmatic purpose of

the scheme is valid simply because it is undertaken by those

charged with enforcing that scheme. Indeed, that is why, as

we have shown, when the Supreme Court has upheld

particular administrative or special needs programs, it has

consistently observed that those programs, and the searches

and seizures conducted pursuant to them, did not appear to be

pretexts for obtaining evidence of criminal activity. 

Otherwise, a valid programmatic purpose, as in the present

case, which confers “unbridled discretion [on] police

officers,” Prouse, 440 U.S. at 663, would become a license to

undertake pretextual stops of commercial vehicles for
UNITED STATES V. OROZCO 17

evidence of criminal activity or any other impermissible

reason, such as the race or nationality of the driver. Cf.

United States v. Carrizoza-Gaxiola, 523 F.2d 239, 240 (9th

Cir. 1975) (listing as one of the reasons for a stop that the

driver “appeared to be Mexican”).

The Supreme Court’s express concern that programmatic

searches not be used as a pretext necessarily requires an

inquiry into an officer’s purpose in conducting a stop or

search without reasonable suspicion or probable cause, when

such an intrusion is sought to be justified pursuant to the

administrative search doctrine, and where the defendant has

come forward with objective evidence to suggest that the

intrusion was not made for the purpose of enforcing the

administrative inspection scheme. Indeed, our precedents

support the need for such an inquiry. Thus, while we have

declined to inquire into an officer’s subjective purpose in the

absence of “objective evidence supporting a charge of

pretext,” United States v. Wilson, 7 F.3d 828, 833 (9th Cir.

1993); see also United States v. Soyland, 3 F.3d 1312, 1314

(9th Cir. 1993); United States v. Koshnevis, 979 F.2d 691,

694 (9th Cir. 1992); United States v. Barnett, 935 F.2d 178,

181 (9th Cir. 1991), we have found pretext where the police

officers admitted that their subjective purpose was to find

evidence of crime. See United States v. Hellman, 556 F.2d

442, 444 (9th Cir. 1977) (“Here it is clear from the testimony

of the searching officer that the citation, the impounding and

the inventorying [of the defendant’s vehicle] all were for ‘an

investigatory police motive.’ This alone is sufficient to

conclude that the warrantless search of the car was

unreasonable.”).

We emphasize that the presence of a criminal

investigatory motive, by itself, does not render an
18 UNITED STATES V. OROZCO

administrative stop pretextual. See United States v. Tsai,

282 F.3d 690, 695 (9th Cir. 2002); see also United States v.

Goldfine, 538 F.2d 815, 819 (9th Cir. 1976) (declining to

adopt rule that agent can only conduct search if and only if he

had no reason to suspect a possible violation of law). Nor

does a dual motive—one valid, and one impermissible. 

“More is involved than the mere expectation that

incriminating evidence might be found; the pretext arises out

of the fact that the evidence is found in a search which would

not have occurred at all . . . .” 3 WAYNER. LEFAVE, SEARCH

AND SEIZURE 902 (5th ed. 2012). Thus, “[w]e apply an

objective test to determine whether a stop made for an

ostensibly legal reason is a pretext for what is, in reality, an

impermissible reason.” United States v. Maestas, 2 F.3d

1485, 1489 (10th Cir. 1993) (citations omitted). More

specifically, “we ask whether the officer would have made the

stop in the absence of the invalid purpose. Thus, in order to

prove that a stop is unreasonably pretextual, a defendant must

show that the stop would not have occurred in the absence of

an impermissible reason.” Id. (citations omitted) (emphasis

in original). Orozco has met his burden of making such a

showing here.

The objective evidence clearly establishes that the only

reason for the stop was the officers’ belief that Orozco could

possibly be hauling marijuana or methamphetamine in his

tractor-trailer. We focus on two such sources of evidence. 

First, the manner in which the stop itself was conducted

strongly suggests that it was wholly pretextual. Briefly, as

discussed above, after receiving a tip about the location of

Orozco’s truck, Sergeant Brewer “immediately” contacted

Trooper Zehr to “advise[] him of the vehicle and its location.” 

After this conversation, the troopers drove out to Mile Post 37

in White Pine County, to “be on the lookout for” Orozco’s
UNITED STATES V. OROZCO 19

truck. Thus, but for the tip, the officers would not even have

been in position to stop the truck. When the truck arrived,

Zehr had to pull out behind a different commercial truck and

drive past it in order to pull over Orozco’s truck. Indeed,

arrangements had apparently been made for a drug-sniffing

dog to be stationed less than a mile away.

Second, we find significant Trooper Boynton’s testimony

regarding the use of administrative inspections as a pretext to

investigate criminal activity, and more specifically, his

testimony regarding “common knowledge.” We disagree

with the district court’s suggestion that it was common

knowledge only that Troopers Zehr and Boynton, as opposed

to Nevada troopers in general, understood that they could use

administrative inspections to investigate criminal activity.

That reading simply cannot be reconciled with the language

Boynton used: when law enforcement officers testify that it

is “common knowledge that you can do that,” they are

obviously referring to knowledge of practices possessed by

those officers charged with enforcing the administrative

scheme.

Moreover, even if the “common knowledge” were limited

to the practice followed by Zehr and Boynton, the failure of

their superiors to stop them from using the scheme in this

way may be sufficient to elevate it to a policy and practice

that precludes reliance on an otherwise valid administrative

scheme. As Judge Kozinski has observed, citing cases

relating to 42 U.S.C. § 1983,1 which impose liability on

1

See City of St. Louis v. Praprotnik, 485 U.S. 112, 130 (1988)

(plurality opinion) (potential section 1983 liability “if a series of decisions

by a subordinate official manifested a ‘custom or usage’ of which the

supervisor must have been aware”); Gillette v. Delmore, 979 F.2d 1342,
20 UNITED STATES V. OROZCO

municipalities and supervisory officers for their policies,

customs, and practices, “[w]hile these cases arise in a

somewhat different context, they provide an apt analogy to

our situation. Because administrative searches are so easily

diverted from their narrowly defined purposes, government

officials have an affirmative responsibility to keep them from

being misused. Acquiescence in a custom or practice that

routinely disregards the limits of particular administrative

searches might itself be sufficient to establish a breach of this

responsibility.” United States v. Soyland, 3 F.3d 1312, 1318

n.11 (9th Cir. 1993) (Kozinski, J., concurring in part and

dissenting in part).2 Nevertheless, even under the crabbed

construction the district judge placed on Boynton’s testimony

regarding “common knowledge,” it significantly adds to the

objective evidence that the stop in this case was pretextual.

Indeed, our conclusion that the stop was pretextual is

buttressed by the Assistant U.S. Attorney’s oral concession

that, but for the tip, the officers would not have stopped the

1349 (9th Cir.1992) (custom or informal policy may be proven through

“evidence of repeated constitutional violations for which the errant

municipal officials were not discharged or reprimanded”); Oviatt by and

through Waugh v. Pearce, 954 F.2d 1470, 1477 (9th Cir.1992)

(policymaker’s inaction in face of problemconstituted policy for purposes

of section 1983 liability).

2 The Soyland majority did not take issue with Judge Kozinski’s

argument. Instead, it observed that “[the defendant] does not argue and

no objective evidence demonstrates” that the Border Patrol, “in

establishing the checkpoint, intended to search for illegal drugs under the

pretext ofsearching for undocumented aliens.” 3 F.3d at 1314. Under the

circumstances, it had “no occasion to address the issue of whether

checkpoint officers routinely overstep their authority by conducting

pretextual narcotics searches.” Id. Judge Kozinski argued that the

defendant was entitled to discovery on this issue. Id. at 1319.
UNITED STATES V. OROZCO 21

defendant’s truck. United States Court of Appeals for the

Ninth Circuit, 15-10385 USA v. Victor Orozco, YOUTUBE

(Oct. 20, 2016), https://www.youtube.com/watch?v=MUC

AvREwbTs, at 18:30–19:30. In a post-argument letter, he

sought to retract that concession in a way that only reinforced

it, writing: “I would have been correct to say that the officers

had no other specific reason to choose defendant’s truck for

an administrative inspection.” ECF No. 44.

United States v. McCarty, 648 F.3d 820 (9th Cir. 2011),

as amended (Sept. 9, 2011), upon which the district court

relied, does not hold that a pretextual stop is valid simply

because law enforcement officers can point to a valid

programmatic scheme that they are charged with enforcing. 

In that case, McCarty checked bags that were subject to a

mandatory TSA screening process. They were scanned using

a CTX 5500 DS security x-ray machine, which alerted TSA

officials that one of the bags had an unusually dense item

that, under TSA policy, automatically required further

inspection. Id. at 824. In one of the envelopes in the bag, a

screener found photographs that looked “improper” because

they depicted nude children. Id. at 836–37. One of the

screeners also read lines from newspaper clippings and letters

in McCarty’s bag in order to determine whether children had

been harmed. Id.

This conduct persuaded the district court in that case that

the TSA screener “searched the photographs in the envelope

not for sheet explosives but for evidence of child

pornography.” United States v. McCarty, 672 F. Supp. 2d

1085, 1097 n.8 (D. Haw. 2009), vacated, 648 F.3d 820 (9th

Cir. 2011), as amended (Sept. 9, 2011). Significantly, it

accepted testimony “that a packet of photographs may cause

a dense item alarm and TSA protocol requires the TSA
22 UNITED STATES V. OROZCO

employee to ensure that the photographs do not include any

sheet explosives.” Id. at 1098. Nevertheless, it found that the

testimony “does not establish that [the TSA employees]

examined the photographs for sheet explosives—rather, after

they noticed the photographs that were initially visible they

inspected the content of additional photographs for the

purpose of determining their criminal nature.” Id. (emphasis

in original).

We agreed with the district court in that case that “the

scope of the permissible search—mandated by the TSA

protocol—was defined by the point at which the screener was

convinced the bag posed no threat to airline safety.” 

McCarty, 648 F.3d at 836. More specifically, a TSA screener

is “required to leaf or thumb through the stack of photographs

until she is sure there are no sheet explosives.” Id. at 825

(emphasis supplied). Nevertheless, we reversed as clearly

erroneous the district court’s finding that the TSA screener

“searched the photographs in the envelope not for sheet

explosives but for evidence of child pornography,” McCarty,

672 F. Supp. 2d at 1097 n.8—a finding for which we could

find “no support in the record.” McCarty, 648 F.3d at 836. 

Once the district court’s factual finding was reversed,

McCarty became an easy case.3 Thus, even an “unlawful

secondary search purpose” does not “invalidate [an]

otherwise lawful administrative . . . search” when, as in

3 Our finding in McCarty was comparable to the factual finding in

Colorado v. Bertine, where the Supreme Court emphasized that “the trial

court found that the Police Department’s procedures mandated the

opening of closed containers and the listing of their contents.” 479 U.S.

at 374 n. 6. And that, accordingly, an inventory search conducted

pursuant to the mandated procedures complied with the Supreme Court’s

consistently articulated “requirement that inventories be conducted

according to standardized criteria.” Id.
UNITED STATES V. OROZCO 23

McCarty, “the searching officer’s actions would have been

the same regardless of his true motivation.” Id. at 833

(citations and internal quotation marks omitted); see also

United States v. Bowhay, 992 F.2d 229, 231 (9th Cir. 1993)

(“When the police conduct would have been the same

regardless of the officer’s subjective state of mind, no

purpose is served by attempting to tease out the officer’s

‘true’ motivation.”) (citing Horton v. California, 496 U.S.

128 (1990)).

We observe that our inquiry into the purpose of the search

of the photographs would have been unnecessary if the

purpose of the TSA screener was irrelevant simply because

the justification proffered for the search was that it had been

undertaken pursuant to a valid administrative program—a

position that McCarty appeared to have accepted at an earlier

point in its discussion of the applicable law. There, we read

City of Indianapolis v. Edmond as suggesting that where “the

search is ‘undertaken pursuant to a general scheme without

individualized suspicion,’” al-Kidd, 131 S.Ct. at 2081

(quoting Edmond, 531 U.S. at 45–46, 121 S.Ct. 447),

consideration of the government actor’s actual motivation has

been limited to an inquiry into the programmatic purposes

motivating the search.” Id. at 832–33 (emphasis in original). 

Our discussion of Edmond, above, analyzed this dictum. 

Nevertheless, to the extent that McCarty suggests that the

Edmond dictum precludes an inquiry into pretext, that view

would beg the question of whether a particular search was in

fact “undertaken pursuant” to a valid administrative scheme,

or whether the invocation of the scheme was wholly

pretextual—an inquiry that a line of Supreme Court and

Ninth Circuit cases say is necessary, and that McCarty

actually undertook.
24 UNITED STATES V. OROZCO

Turning back to the case at hand, the only purpose of the

stop of Orozco’s truck was to investigate criminal activity. 

There was no secondary administrative purpose at all—only

a charade to camouflage the real purpose of the stop. Indeed,

the present case is distinguishable from McCarty principally

because it involved a seizure that would not have taken place

were it not for the fact that the officers intended to search for

evidence of criminal activity. While we reject the district

judge’s finding the Nevada troopers had a “dual motive” for

stopping Orozco’s truck, her holding that “having dual

motives does not make a warrantless search pretextual”

avoids the critical question whether the stop of Orozco’s

truck would have been made at all if the Nevada troopers

were not acting on the information that it was “possibly”

carrying drugs. The objective evidence demonstrates that the

answer to that question is no.

CONCLUSION

The judgment of conviction is REVERSED, and the case

is REMANDED for further proceedings consistent with this

opinion.