In United States v. Orozco, --- F.3d ---, No. 15-10385 (9th Cir. 2017), the Court considered "whether [a pretextual] 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." The Court concluded it was not.
In this case, Nevada Highway Patrol troopers stopped a tractor-trailer to investigate criminal activity. Specifically, they had a tip that the driver might be transporting drugs. After the stop, the driver eventually consented to a search. The troopers found drugs.
The district court denied the defendant's suppression motion. The Ninth Circuit reversed.
The Court did "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." Instead, it assumed "there was no reasonable suspicion."
The Court thus turned to whether the stop could be justified under Nevada's administrative inspection scheme for commercial vehicles. The Court explained:
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,” would become a license to undertake pretextual stops of commercial vehicles for evidence of criminal activity or any other impermissible reason, such as the race or nationality of the driver.
On the record before it, "[t]he 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." Thus, it was pretextual in violation of the Fourth Amendment.
