Fifth Circuit: Tapping a Car Tire Is a Search under Common Law Trespass Test

Last week, the Fifth Circuit utilized the common-law trespass test to find that a state trooper’s tapping of a car tire was a search.

Texas State Trooper Manuel Gonzales was on patrol in south Texas when he saw a blue pickup. Trooper Gonzales drove alongside the truck and saw the tires were shaking, wobbly, and unbalanced. The truck then crossed the fog line, and Trooper Gonzales initiated a traffic stop. When the truck came to a stop, Trooper Gonzales saw that one of the brake lights was also broken. Trooper Gonzales ran the license plate and learned the truck was registered two days earlier.

Trooper Gonzales approached the vehicle, which was driven by Jennifer Richmond. Trooper Gonzales stated to Richmond that he pulled over the vehicle because she crossed the fog line. Richmond apologized and volunteered that she was driving from Arizona. Richmond was also trembling. Trooper Gonzales told Richmond about the broken brake lights, and asked her to exit the truck so that he could show it to her. Richmond complied with this instruction.

As Trooper Gonzales walked to the rear of the truck, he looked at the passenger-side rear tire and observed that the bolts were stripped. Trooper Gonzales then pushed on the tire with his hand, and it produced a solid thumping noise. This indicated to Trooper Gonzales that something besides air was inside the tire.

Trooper Gonzales then asked Richmond about her personal history and itinerary. Richmond could not recall her age, date of birth, or husband’s name. She stated that she was traveling to Dallas to visit a friend, but did not know his number or address. Trooper Gonzales then went back to his car to check Richmond’s license and the truck’s registration. Trooper Gonzales discovered that contrary to Richmond’s statement that she was traveling from Arizona, the truck entered Mexico the previous day and crossed back into the United States hours before the traffic stop.

Trooper Gonzales obtained Richmond’s consent to search the truck. He then let some air out of the tires and smelled a chemical odor emit from them. One of the tires did not release air. Trooper Gonzales removed the tires and found them to be unusually heavy and solid. Trooper Gonzales decided to take the truck to a local car dealership and have the tires examined. The technicians at the dealership discovered secret compartments that contained methamphetamine.

Richmond was charged with trafficking meth and moved to suppress its discovery. Richmond challenged the lawfulness of the stop and its length. The district court rejected those arguments, concluding that reasonable suspicion of a traffic violation supported the stop and that Richmond’s suspicious statements and demeanor raised sufficient concerns about drug trafficking to support extending the stop. The motion was denied and Richmond entered a guilty plea that allowed her to appeal the suppression ruling. However, before sentencing, Richmond filed an amended motion to suppress that argued that Trooper Gonzales’s tap of her tire was a search not supported by probable cause. At sentencing, the district court considered but rejected the amended motion, and stated that “as the law stands now, tapping tires is not a search.”

Richmond appealed the district court’s decision on her amended motion to suppress to the U.S. Court of Appeals for the Fifth Circuit. The focus of the appeal was Trooper Gonzales’s tap of her tire. Richmond contended that touching the tire was a trespass that counts as a search under the Supreme Court’s decisions in Florida v. Jardines, 569 U.S. 1 (2013) and United States v. Jones, 565 U.S. 400 (2012). Richmond did not challenge the initial stop or that there was reasonable suspicion of drug trafficking to extend the stop.

The government contended that the Fifth Circuit previously held that similar law enforcement conduct was not a search. In United States v. Muniz-Melchor, 894 F.2d 1430 (5th Cir. 1990), a border patrol agent used a pocket knife to tap the side of a propane tank mounted in the bed of a pickup truck, and the court of appeals noted that the tapping “may have constituted a technical trespass” but explained that Katz v. United States, 389 U.S. 347 (1967), rejected the notion that what constitutes a trespass under property law constitutes a search under the Fourth Amendment.

Richmond disputed the use of this precedent because at the time of Muniz-Melchor a physical intrusion did not on its own constitute a search. The court of appeals agreed with Richmond. In 2012, Jones revived the property approach that most courts thought Katz jettisoned. In Jones, the Supreme Court relied on the “common-law trespassory test.” The court of appeals noted that lower courts recognized Jones as a “sea change.”

The court of appeals stated that Jones therefore required it to consider the trespass test that Muniz-Melchor did not think was sufficient to establish a search but now is. The court stated that a trespass must be conjoined with an attempt to find something or obtain information to be consistent with a search. Here, the court found that the “relatively minor” act of tapping tires is still trespass. The court then found that because the trespass occurred to learn what was inside the tires, it qualifies as a search. 

The court of appeals noted that the ultimate question is whether the search was reasonable. The government first argued that the search complied with the Fourth Amendment because Trooper Gonzales had probable cause to believe drugs were inside the vehicle. The court found that the wobbly, tires, stripped bolts, Richmond’s nervousness, and the new registration gave Trooper Gonzales reasonable suspicion of drug trafficking to extend the stop and investigate further, but did not give him the probable cause necessary to tap the tire.

The government also contended that the physical inspection of the tire served another interest – “ensuring that vehicles on the road are operated safely and responsibly.” The court of appeals agreed that tapping the tire was justified on this basis. The court found that the wobbly tires, the truck veering outside its lane, and the stripped bolts gave Trooper Gonzales probable cause to believe the tire posed a safety risk.

Thus, the Fifth Circuit affirmed the judgment of the district court.

Read the full case: United States v. Richmond.

This case law update was written by Michael J. Sgarlat, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update


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