On February 8, 2019, the Fifth Circuit Court of Appeals decided the United States v. Richmond[i], in which the court examined whether tapping on the outside of a vehicles tire, to determine if the tire was concealing any objects inside, was a search under the Fourth Amendment. The relevant facts of Richmond, taken directly from the case, are as follows:
Texas State Trooper Manuel Gonzales was patrolling U.S. Highway 77 in south Texas when he saw a blue pickup Jennifer Richmond was driving. He drove alongside the truck and saw that the tires were “shaking,” “wobbly,” and “unbalanced.” He was concerned that the tires were a potential danger to the public. After the truck drove across the fog line between the right lane and the shoulder of the highway, Gonzales initiated a traffic stop. When the vehicle came to a stop, Gonzales saw that one of the truck’s brake lights was broken. He ran the license plate and learned the truck was registered two days earlier in nearby Brownsville.
When he approached the vehicle, Gonzales explained the reason for the stop—that Richmond crossed the fog line—and also told her about the brake light. Richmond apologized and, without prompting, stated that she was from Arizona. She avoided eye contact, and Gonzales noticed that her hands were “trembling,” her mouth was “dry,” and her lips had “a white coating.”
In response to questioning, Richmond said that she was from Tucson but was traveling to Brownsville, where she was moving with her husband. Gonzales asked Richmond to exit the truck so that he could show her the broken brake light. Richmond complied.
As Gonzales walked to the rear of the truck, he looked at the passenger-side rear tire and observed that the bolts “had been stripped as [if] they had been taken off numerous times.”
This is when the challenged conduct occurred. Gonzales pushed on the tire with his hand. The resulting sound was not what “a normal tire with air” would produce; instead there was a “solid thumping noise” that indicated something besides air was inside. Gonzales, who already was concerned about the tires because he had seen them bouncing before the stop, became more suspicious that they might contain drugs.
After tapping the tire, Gonzales resumed asking Richmond about her personal history and itinerary. She could not readily recall her age, date of birth, or husband’s name. Richmond asserted that she was traveling to Dallas to visit a friend, but did not know the friend’s phone number or address. Stranger still, she said she intended to use Google to learn the friend’s address and would return home if that search came up empty.
When Gonzales went back to his car to check Richmond’s license and the vehicle’s registration, he discovered that, contrary to her story about driving from Arizona, the truck had entered Mexico the day before. It had crossed back into the United States only a few hours before the traffic stop.
Gonzalez then obtained Richmond’s consent to search the truck. After finding suspicious items inside the vehicle, Gonzales “let some air out [of the tires] and [ ] smelled some kind of chemical cleaning odor coming out of them.” At least one of the tires did not release air. Gonzales checked beneath the truck and saw “fingerprints [ ] on the inside of . . . the rims” and an atypical amount of weight placed on the tires to try to balance them. When he removed the tires, they seemed unusually heavy and solid.
Gonzales decided to take the truck to a local car dealership and have the tires examined. Technicians at the dealership discovered secret compartments that contained methamphetamine.[ii]
Richmond was charged with drug violations under federal law. She filed a motion to suppress the methamphetamine, which was denied by the district court. She then pleaded guilty with the right to appeal the denial of the motion to suppress. Richmond filed an appeal of the denial of the motion to suppress in the Fifth Circuit Court of Appeals.
The issue on appeal was whether the trooper conducted a search, within the meaning of the Fourth Amendment, when he physically tapped on the outside of vehicle tire to determine if objects were concealed within the tire. If the court determines this was a search, then the court must decide whether the search was reasonable under the Fourth Amendment.
Richmond argued that the officer committed a trespass on her vehicle when he tapped the tire, and this trespass constituted a search under the Fourth Amendment.
The court of appeals began its analysis by discussing Supreme Court precedent. Under the United States v. Katz[iii], the Court held that a technical trespass under property law, does not implicate the Fourth Amendment if the person to whom the police committed a trespass does not possess a reasonable expectation of privacy in the place searched. Thus, the question to answer when determining if a police officer’s conduct was a search under the Fourth Amendment first involved determining if a person had a reasonable expectation of privacy in the area searched. If not, then no Fourth Amendment search occurred. This was the longstanding legal principle under which law enforcement operated.
However, in 2012 and 2013, the Supreme Court opened up the trespass theory as an alternate analysis regarding Fourth Amendment searches. In 2012, the Court decided the United States v. Jones[iv], in which they held that attaching a GPS to a car to conduct long term tracking of the car as it drove on public roads constituted a search under the Fourth Amendment and thus required a warrant (unless an exception to warrant requirement applied). The court held that a Fourth Amendment “search” occurs when the government (1) trespasses on a person, house, paper or effect (2) for the purpose of gathering information.
In 2013, the Supreme Court decided Florida v. Jardines[v], in which the Court held that officer’s violated the Fourth Amendment when they took a trained narcotics canine onto Jardines’s front porch to sniff the exterior for drugs. The court noted that there is implied permission enter a person’s property, walk up to the front door, knock and request to speak to the resident, but, in this case, the officers entered with an intent to discover if drugs were in the residence by the use of narcotics canine. As such, they held that a search under the Fourth Amendment occurred.
Based on Jones and Jardines, the court stated that a search under the Fourth Amendment occurs when there is (1) a trespass combined with (2) “an attempt to find something or obtain information.”[vi]
The court of appeals explained that merely touching a car on a traffic stop by leaning on the vehicle while talking to a driver is not a search, because the officer is not attempting to obtain information from touching the vehicle in that situation. However, in Richmond’s case, the trooper’s tapping of the tire was intended to determine if objects were concealed inside the tire. Thus, the second element from the rule above was satisfied.
The court then set out to determine if tapping the tire was a “trespass.” The court of appeals compared the officer’s conducted in Jones (attaching a GPS device) to the troopers conduct in the case at hand (tapping a tire). The court stated
[I]n concluding that attaching a GPS to the exterior of a vehicle was a trespass, Jones relied on its reading of the common law of trespass as it existed in 1791 when the Fourth Amendment was ratified. In terms of the physical intrusion, we see no difference between the Jones device touching the car and an officer touching the tire. Nor, apparently, does the government, as it does not dispute that the tire tap was a trespass. Of course, the GPS device remained attached for a longer period and gathered a lot more information compared to a tire tap, but Jones found a trespass because of the physical contact the device made with the car at the moment it was affixed. Indeed, Justice Alito’s opinion in Jones critiques the majority’s trespass approach because it “largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car’s operation).” The also “relatively minor” act of tapping tires is thus a trespass. Because that trespass occurred to learn what was inside the tires, it qualifies as a search…It may also seem troubling that the brief touching of a tire reveals far less information than other lawful conduct, like a dog sniff, that is not considered a search. That critique, however, views the search question through the invasion-of-privacy mindset. Rightly or wrongly, Jones held that a trespassory search implicates the Fourth Amendment even if it does not offend privacy interests. Under that property-based approach, Gonzales’s tapping of the tire was a search regardless of how insignificant it might seem.[vii] [internal citations omitted] [emphasis added]
Having determined that the act of tapping the exterior of Richmond’s tire to determine if it concealed objects inside was a search under the Fourth Amendment, the court next set out to determine if that warrantless search was reasonable under the Fourth Amendment.
The government’s first argument in support of the search was that the trooper had probable cause to believe the tire contained contraband at the time he tapped it, therefore, the automobile exception to the search warrant requirement would apply. In analyzing this argument, the court of appeals stated
The information Gonzales had by that time—the wobbly tires, stripped bolts, Richmond’s nervousness, and the new registration on an older vehicle stopped in a trafficking corridor—certainly gave him the reasonable suspicion of drug trafficking needed to justify extending the traffic stop to investigate further. United States v. Brigham, 382 F.3d 500, 507 (5th Cir. 2004) (en banc). But probable cause is a higher rung on the probability ladder than reasonable suspicion. See Navarette v. California, 572 U.S. 393, 397 (2014) (explaining that the evidence required for reasonable suspicion “is obviously less than is necessary for probable cause” (citation omitted)). Demonstrating the greater showing required for probable cause, evidence rising to that level would be enough to have supported an arrest of Richmond for drug trafficking or a grand jury indictment charging that crime. See United States v. Watson, 423 U.S. 411 (1976) (holding that probable cause supports warrantless arrest of a suspect); U.S. CONST. amend. V. We doubt the information Gonzales had prior to tapping the tire rose to that level.[viii]
Thus, the court held the trooper lacked probable cause to believe contraband was inside the tire. However, the government’s second argument in support of the reasonableness of tapping the tire was more persuasive to the court.
The second argument in support of the search was that the fact that the trooper observed the tire wobbling, the vehicle veering outside of it’s lane, and the stripped lug nuts gave the trooper right to inspect the tire to ensure it was safe to be operated the road. The court then stated
Indeed, the wobbly tires, the truck veering outside its lane, and the stripped bolts gave a reasonable officer probable cause to believe that the tire posed a safety risk. TEX. TRANSP. CODE § 547.004(a) (making it a misdemeanor to operate a vehicle that is “unsafe so as to endanger a person”). On that basis, the tapping of the tire was justified. It does not matter that Gonzales also wanted to find out if drugs were in the tire. See Whren v. United States, 517 U.S. 806, 813 (1996).
Pulling back from the discrete Fourth Amendment doctrines we have examined, finding no constitutional violation makes sense in terms of the overall Fourth Amendment balance. The government’s interest in making sure that a loose tire does not pose a safety threat strongly outweighs the intrusiveness of an officer’s tapping the tire for a second or two.[ix] [emphasis added]
Therefore, the search was reasonable, because the subjective intent of the officer regarding the search does not matter; rather, if the search was “objectively reasonable,” there is no Fourth Amendment violation.
As such, the court of appeals affirmed the denial of the motion to suppress.
[i] No. 17-40299 (5th Cir. Decided February 8, 2019)
[ii] Id. at 2-3
[iii] 389 U.S. 347 (1967)
[iv] 565 U.S. 400 (2012)
[v] 569 U.S. 1 (2013)
[vi] Richmond at 7
[vii] Id. at 8-10
[viii] Id. at 11
[ix] Id. at 11-12