Petition for Writ of Certiorari — Ronald Calzone, Petitioner v. Eric Olson, Superintendent, Missouri State Highway Patrol

No. _________

================================================================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------RONALD CALZONE,

Petitioner,

v.

ERIC T. OLSON, in his official capacity as

Superintendent of the Missouri State Highway Patrol,

Respondent.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

-----------------------------------------------------------------PETITION FOR A WRIT OF CERTIORARI

-----------------------------------------------------------------DAVID E. ROLAND

FREEDOM CENTER OF MISSOURI

P.O. Box 693

Mexico, Missouri 65265

(573) 567-0307

dave@mofreedom.org

Counsel for Petitioner

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

1) Does the “closely regulated industry” exception to

the Fourth Amendment apply to persons who have

not chosen to involve themselves in any business connected with a closely regulated industry?

2) Does the Fourth Amendment allow executive or

administrative officers in the field to exercise unlimited discretion as to whom the officers will subject to a

warrantless search or seizure?

ii

PARTIES TO THE PROCEEDINGS BELOW

The Petitioner is Ronald Calzone.

The Respondent is Eric T. Olson in his official capacity as the Superintendent of the Missouri State

Highway Patrol.

RELATED CASES

• State of Missouri v. Ronald J. Calzone, Case No.

700761140, Phelps County Circuit Court. Nolle Prosequi entered April 4, 2014.

• Ronald Calzone v. Chris Koster, et al., Case No. 4:15cv-869 SNLJ, United States District Court for the

Eastern District of Missouri, Southeastern Division.

Judgment entered July 28, 2016.

• Ronald Calzone v. Josh Hawley, et al., Case No. 163650, Eighth Circuit Court of Appeals. Judgment entered August 7, 2017.

• Ronald Calzone v. Sandra Karsten, Case No. 4:15cv-869 SNLJ, United States District Court for the

Eastern District of Missouri, Southeastern Division.

Judgment entered March 9, 2018.

• Ronald Calzone v. Eric T. Olson, Case No. 18-1674,

Eighth Circuit Court of Appeals. Judgment entered

July 26, 2019.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..................................

i

PARTIES TO THE PROCEEDINGS BELOW ......

ii

RELATED CASES ..................................................

ii

TABLE OF CONTENTS ........................................

iii

TABLE OF AUTHORITIES ...................................

v

PETITION FOR A WRIT OF CERTIORARI .........

1

OPINIONS BELOW ...............................................

1

JURISDICTION .....................................................

1

CONSTITUTIONAL AND STATUTORY

PROVISIONS ...................................................

2

STATEMENT .......................................................

4

REASONS FOR GRANTING THE PETITION .....

9

I. The Eighth Circuit’s ruling disregards this

Court’s stated rationale for the “closely regulated industry” exception to the Fourth

Amendment’s protections and dramatically

expands its scope ......................................... 10

II. This Court should resolve the split among

circuit courts as to whether the Fourth

Amendment allows law enforcement officers to exercise unlimited discretion regarding whom they will subject to warrantless

searches and seizures .................................. 13

III.

This case is an ideal vehicle for clarifying

these issues.................................................. 18

CONCLUSION .......................................................

19

iv

TABLE OF CONTENTS—Continued

Page

APPENDIX

Opinion, United States Court of Appeals for the

Eighth Circuit, filed July 26, 2019 .................. App. 1

Opinion, United States District Court for the

Eastern District of Missouri, filed March 9,

2018 ................................................................ App. 10

Opinion, United States Court of Appeals for the

Eighth Circuit, filed August 7, 2017 .............. App. 24

Opinion, United States District Court for the

Eastern District of Missouri, filed July 28,

2016 ................................................................ App. 35

v

TABLE OF AUTHORITIES

Page

CASES

Almeida-Sanchez v. U.S.,

413 U.S. 266 (1973) ........................................... 11, 14

Camera v. Municipal Court of the

City and County of San Francisco,

387 U.S. 523 (1967) .................................................14

City of Los Angeles v. Patel,

135 S.Ct. 2443 (2015) ..............................................12

Colonnade Catering Corp. v. U.S.,

397 U.S. 72 (1970) ...................................................11

Com. v. Bizarria,

578 N.E.2d 424 (Mass. Ct. App. 1991) ....................16

Delaware v. Prouse,

440 U.S. 648 (1979) .................................................15

Donovan v. Dewey,

452 U.S. 594 (1981) ........................................... 11, 15

Marshall v. Barlow’s, Inc.,

436 U.S. 307 (1978) ........................................... 11, 15

New York v. Burger,

482 U.S. 691 (1987) ............................... 11, 13, 14, 16

State v. McClure,

74 S.W.3d 362 (Tenn. Crim. App. 2001) ..................16

State v. Landrum,

739 N.E.2d 1159 (Ohio Ct. App. 2000) ....................16

State v. Hone,

866 P.2d 881 (Ariz. Ct. App. 1993) ..........................16

vi

TABLE OF AUTHORITIES—Continued

Page

Tarabochia v. Adkins,

766 F.3d 1115 (9th Cir. 2014) ..................................15

U.S. v. Biswell,

406 U.S. 311 (1972) .................................................11

U.S. v. Branson,

21 F.3d 113 (6th Cir. 1994) ......................................16

U.S. v. Fort

248 F.3d 475 (5th Cir. 2001) ....................................17

U.S. v. Steed,

548 F.3d 961 (11th Cir. 2008) ............................ 16, 17

Zadeh v. Robinson,

928 F.3d 457 (5th Cir. 2019) .............................. 15, 17

CONSTITUTIONAL PROVISIONS

Fourth Amendment to the U.S. Constitution..... passim

STATUTES AND REGULATIONS

28 U.S.C. § 1254(1) ........................................................1

49 C.F.R. § 390 ..............................................................8

49 C.F.R. § 392 ..............................................................8

49 C.F.R. § 393 ..............................................................8

Mo. Stat. § 300.550 .......................................................8

Mo. Stat. § 301.010(27) .................................................4

Mo. Stat. § 301.030.3 ....................................................8

Mo. Stat. § 301.058.1 ....................................................8

vii

TABLE OF AUTHORITIES—Continued

Page

Mo. Stat. § 303.024 .......................................................3

Mo. Stat. § 303.025 .......................................................3

Mo. Stat. § 304.170 ............................................... 2, 3, 8

Mo. Stat. § 304.230 ............................................... 5, 6, 7

Mo. Stat. § 304.230.1 ....................................................2

Mo. Stat. § 304.230.2 ....................................................3

Mo. Stat. § 304.230.7 ....................................................3

Mo. Stat. § 304.232 ................................................... 2, 3

Mo. Stat. § 307.400.1(1) ................................................8

Mo. Stat. § 307.400.1(2) ................................................9

1

PETITION FOR A WRIT OF CERTIORARI

Ronald Calzone petitions for a writ of certiorari to

review the judgment of the United States Court of

Appeals for the Eighth Circuit in this case.

------------------------------------------------------------------

OPINIONS BELOW

The United States District Court for the Eastern

District of Missouri entered an unpublished opinion in

Calzone v. Koster, which is included in the Appendix at

pp. 35-49. The United States Court of Appeals for the

Eighth Circuit entered an opinion affirming in part,

reversing in part, and remanding, which is reported

at Calzone v. Hawley, 866 F.3d 866. See App. 24-34.

On remand, the United States District Court for the

Eastern District of Missouri entered an opinion which

is reported at Calzone v. Karsten, 316 F.Supp.3d 1085.

See App. 10-23. The United States Court of Appeals

for the Eighth Circuit then entered an opinion which

is reported at Calzone v. Olson, 931 F.3d 722. See App.

1-9.

------------------------------------------------------------------

JURISDICTION

The Eighth Circuit entered its most recent judgment in this case on July 26, 2019. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

------------------------------------------------------------------

2

CONSTITUTIONAL AND

STATUTORY PROVISIONS

The Fourth Amendment to the U.S. Constitution

provides:

“The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or

affirmation, and particularly describing the

place to be searched, and the persons or things

to be seized.”

In relevant part, Mo. Stat. § 304.230.1 states:

“[L]aw enforcement officers that have been

approved by the Missouri state highway patrol under section 304.232, members of the

Missouri state highway patrol, commercial vehicle enforcement officers, and commercial vehicle inspectors . . . shall have the authority

to conduct random roadside examinations or

inspections to determine compliance with sections 304.170 to 304.230, and only such officers shall have the authority, with or without

probable cause to believe that the size or

weight is in excess of that permitted by sections 304.170 to 304.230, to require the driver,

operator, owner, lessee, or bailee, to stop, drive,

or otherwise move to a location to determine

compliance with sections 304.170 to 304.230.

Notwithstanding the provisions of this subsection, a law enforcement officer not certified

under section 304.232 may stop a vehicle that

3

has a visible external safety defect relating to

the enforcement of the provisions of sections

304.170 to 304.230 that could cause immediate harm to the traveling public. Nothing in

this section shall be construed as preventing

a law enforcement officer not certified under

section 304.232 from stopping and detaining

a commercial motor vehicle when such officer

has probable cause to believe that the commercial motor vehicle is being used to conduct

illegal or criminal activities unrelated to sections 304.170 to 304.230.”

In relevant part, Mo. Stat. § 304.230.2 states:

“Any peace officer approved under section

304.232 or any highway patrol officer is hereby

given the power to stop any such conveyance

or vehicle as above described upon the public highway for the purpose of determining

whether such vehicle is loaded in excess of the

provisions of sections 304.170 to 304.230[.]”

In relevant part, Mo. Stat. § 304.230.7 states:

“The superintendent may also appoint members of the patrol who are certified under the

commercial vehicle safety alliance with the

power to conduct commercial motor vehicle

and driver inspections and to require the operator of any commercial vehicle to stop and

submit to said inspections to determine compliance with commercial vehicle laws, rules,

and regulations, compliance with the provisions of sections 303.024 and 303.025, and to

submit to a cargo inspection when reasonable

grounds exist to cause belief that a vehicle is

4

transporting hazardous materials as defined

by Title 49 of the Code of Federal Regulations.”

------------------------------------------------------------------

STATEMENT

Ron Calzone is a farmer. He is not a professional

commercial trucker.

Calzone and his wife own Eagle Wings Ranch near

Dixon, Missouri, where they raise horses and cattle. He

owns a 1992 International Harvester dump truck that

he occasionally uses to carry materials related to the

operation of his ranch. The truck is registered as a “local commercial vehicle” and as a “farm vehicle;” the

license plate is marked with an “F” to reflect this registration. App. 2. Under Missouri law, these designations sharply limit Calzone’s use of the vehicle—he

may only use it within 50 miles of his farm and its use

must be confined solely to the transportation of Calzone’s own property, to or from his farm, and the property transported must be “for use in the operation of

such farm.” Mo. Stat. § 301.010(27).

As the July 26, 2019 Opinion issued by the Eighth

Circuit recognized, due to the limited uses to which

the farm truck may be put Calzone is not required to

have a commercial driver’s license to operate it. App. 7.

He is not subject to the state regulations that govern

operators who are “motor carriers” under Missouri

law. App. 7. He is exempt from all driver qualification

regulations. App. 7. He is excepted from regulations

5

governing hours for drivers. App. 7. He is also exempt

from regulations requiring motor carriers to inspect,

repair, and maintain commercial vehicles under their

control. App. 7-8.

At about 10:00 on the morning of June 3, 2013,

Calzone took his farm truck to an inspection station

authorized by the Missouri State Highway Patrol for

its regular Missouri Motor Vehicle Inspection. His

truck passed the inspection and a couple of hours later

he began driving the truck to a nearby quarry to purchase gravel for use in his daughter’s chicken coop. The

bed of the truck was empty and Calzone was being

careful to obey all traffic laws. A Missouri State Highway Patrol vehicle fell in behind Calzone and signaled

for him to pull over. When the officer approached his

window Calzone asked why the officer had stopped

him. The officer acknowledged that he had not observed any violation of the law, but stated that

§ 304.230 authorizes highway patrol officers to stop

commercial vehicles and inspect them even if the officer has no reason to believe that any law has been

violated.1 Describing himself as a “hard-headed constitutionalist,” Calzone insisted that the Fourth Amendment prohibits such suspicionless stops; he refused to

consent to the search and the officer issued him a citation for failure to submit to a commercial vehicle inspection.

1

The officer that initiated the stop had unlimited discretion

to decide which commercial vehicles he would seize and attempt

to search.

6

The Phelps County Prosecuting Attorney initially

pursued a misdemeanor charge against Calzone, but

terminated the prosecution via nolle prosequi after

Calzone filed a motion to dismiss. Calzone then filed

this lawsuit in the United States District Court for

the Eastern District of Missouri, asserting that three

subsections of Mo. Stat. § 304.230 violated the Fourth

Amendment both facially and as applied to Calzone.

The Complaint named as defendants the Governor, the

Attorney General, and the Superintendent of the Missouri State Highway Patrol. Calzone contended that

§ 304.230 was facially unconstitutional because it authorizes the roving seizure of almost any type of vehicle—not just commercial vehicles—“with or without

probable cause” to believe that the vehicle is in violation of any law. In a separate count Calzone alleged

that the June 3, 2013 stop violated the Fourth Amendment as applied to him, in part because the highway

patrol officer was given unlimited discretion to choose

which commercial vehicles he would subject to roving,

suspicionless seizures and searches.

The government defendants filed a motion for

summary judgment as to Count I (Calzone’s facial

challenge) and a motion for judgment on the pleadings

as to Count II (Calzone’s as-applied challenge). Calzone filed a motion for summary judgment as to both

counts. The district court ruled for the government as

to Calzone’s facial challenge, holding that the statute

could constitutionally be applied to the commercial

trucking industry. App. 47. The district court also

granted the government’s motion for judgment on the

7

pleadings as to Calzone’s as-applied challenge, holding

that Calzone had failed to name a proper party as a

defendant for Count II. App. 48. On appeal the Eighth

Circuit affirmed the holding that § 304.230 could constitutionally be applied to “participants in the commercial trucking industry.” App. 32. Regarding Calzone’s

as-applied challenge, however, the Eighth Circuit held

that the Superintendent of the Missouri State Highway Patrol was a proper defendant and remanded the

case to the district court for determination as to

whether Calzone’s use of his farm vehicle made him a

participant in the commercial trucking industry. App.

33.

On remand the district court held that even

though Calzone is not engaged in a business tied to the

professional commercial trucking industry, he is nonetheless a participant in that industry because driving

a commercial truck makes him subject to certain regulations. App. 14. The district court also held that because § 304.230 notified drivers that they would be

subject to random, suspicionless stops the fact that

there were no standards, guidelines, or policies in place

to limit the discretion of the inspecting officers in deciding which vehicles to stop did not violate the Fourth

Amendment App. 22. Calzone appealed again, but the

Eighth Circuit affirmed the district court’s judgment.

App. 9. The Eighth Circuit acknowledged that Calzone

was exempt from a wide swath of state and federal

regulations that apply to those doing business as professional commercial truckers, but it justified its conclusion that Calzone and his farm truck were nonetheless

8

“closely regulated” because he is subject to the following smattering of statutes and regulations:

•

General Federal rules applicable to commercial motor vehicles. 49 C.F.R. § 390. App. 8.

•

Federal rules applicable to driving commercial motor vehicles. 49 C.F.R. § 392. App. 8.

•

Federal rules establishing parts and accessories necessary for safe operation of commercial motor vehicles. 49 C.F.R. § 393. App. 8.

•

A Missouri statute allowing cities to deny

commercial vehicles the use of certain streets.

Mo. Stat. § 300.550. App. 8.

•

A Missouri statute requiring commercial vehicles to be registered with the state. Mo. Stat.

§ 301.030.3. App. 8.

•

A Missouri statute requiring commercial vehicle owners to pay an annual registration fee.

Mo. Stat. § 301.058.1. App. 8.

•

Missouri statutes making all vehicles (not just

commercial vehicles) subject to height, weight,

and length restrictions. Mo. Stat. §§ 304.170.230. App. 8.

•

A Missouri statute requiring “[e]very commercial motor vehicle and trailer and all parts

thereof [to] be maintained in a safe condition

at all times[.]” Mo. Stat. § 307.400.1(1). App. 8.

•

A Missouri statute requiring “[a]ccidents arising from or in connection with the operation

of commercial motor vehicles and trailers [to]

be reported to the department of public safety

9

in such detail and in such manner as the director may require.” Mo. Stat. § 307.400.1(2).

App. 8.

Calzone has timely filed this petition seeking a

writ of certiorari.

------------------------------------------------------------------

REASONS FOR GRANTING THE PETITION

The Court should grant this Petition for a Writ of

Certiorari for two reasons:

First, the Eighth Circuit’s decision blatantly disregards this Court’s precedents regarding the purpose

and intended limits of the “closely regulated industry”

exception to the Fourth Amendment’s protections.

Second, the Eighth Circuit’s decision deepens a

split among five federal circuit courts and at least four

state appellate courts as to whether the Fourth Amendment permits executive and administrative officers to

exercise unlimited discretion as to whom they will subject to warrantless searches and seizures.

Both of these issues are matters of great national

importance, directly affecting the ability of a large

portion of the American public to enjoy essential constitutional protections against improper exercises of

governmental authority.

10

I.

The Eighth Circuit’s ruling disregards this

Court’s stated rationale for the “closely regulated industry” exception to the Fourth

Amendment’s protections and dramatically

expands its scope.

It has been clear from the outset of this litigation

that Calzone has not chosen to do business as a professional commercial trucker. In light of this undisputed

fact, the critical question the lower courts had to address was whether this Court’s precedents allowed

Calzone to be treated as part of the “professional commercial trucking industry” based solely on his decision

to purchase and use a piece of property—in this case a

farm truck—that was subject to a limited set of regulations. Although nothing in this Court’s precedents

suggests that a citizen surrenders their Fourth

Amendment rights merely by owning a piece of property, that is precisely the impact of the Eighth Circuit’s

decision. That conclusion ignores this Court’s precedents, extends the “closely regulated industry” exception far beyond its proper, limited scope, and if other

lower courts follow the Eighth Circuit’s lead a large

number of Americans could find themselves inadvertently stripped of their constitutional protections

against warrantless searches and seizures.

This Court’s cases discussing the “closely regulated industry” exception consistently state that the

application of this exception is properly limited to

those who have chosen to do business in industries

that required special governmental permission before

11

one could lawfully do business in them. See Colonnade

Catering Corp. v. U.S., 397 U.S. 72 (1970) (business

owner held state license to sell and serve alcoholic

beverages); U.S. v. Biswell, 406 U.S. 311 (1972) (business owner held federal license to sell firearms and

ammunition); Donovan v. Dewey, 452 U.S. 594 (1981)

(mining company required to obtain state permit prior

to excavations); New York v. Burger, 482 U.S. 691 (1987)

(junkyard owner required to hold state license). Even

in cases in which the Court held that the “closely regulated industry” exception did not apply, it emphasized

that the exception depended on an individual’s choice

to pursue a certain kind of business opportunity. See

Marshall v. Barlow’s, Inc., 436 U.S. 307, 313 (1978)

(exception applies where one has “voluntarily chosen

to submit himself to a full arsenal of government regulation”); Almeida-Sanchez v. U.S., 413 U.S. 266, 271

(1973) (exception inapplicable because subject “was

not engaged in any regulated or licensed business”).

The Eighth Circuit’s opinion below represents a

dramatic and dangerous expansion of the “closely regulated industry” doctrine. Absent any evidence that

Calzone was engaged in business related to the professional commercial trucking industry, the court relied

upon the fact that his farm truck is subject to a mishmash of state and federal regulations to conclude that

Calzone had surrendered his Fourth Amendment protections. Even though the Eighth Circuit candidly

acknowledged that Calzone was exempt from a vast

swath of the regulations applicable to those who

transport people and property for hire, the court placed

12

no importance on this fact and instead leaped to the

conclusion that Calzone was subject to the “closely regulated industry” exception.

The Eighth Circuit’s conclusion cannot be reconciled with this Court’s reasoning in City of Los Angeles

v. Patel, 135 S.Ct. 2443 (2015). The hotel owners in that

case had made the choice to engage in a business that

required compliance with a range of regulations, including requirements to maintain a business license,

collect taxes, conspicuously post their rates, and ensure sanitary standards. But having reviewed this list

of regulatory burdens this Court held that that it was

“more akin to the widely applicable minimum wage

and maximum hour rules that the Court rejected” in

Barlow’s Inc. Id. at 2455. “If such general regulations

were sufficient to invoke the closely regulated industry

exception, it would be difficult to imagine a type of

business that would not qualify.” Id. This Court concluded that even though these hotel owners had voluntarily consented to these regulations, there was no

reason to infer that the owners had surrendered their

Fourth Amendment protections.

The regulations applicable to the hotel owners in

Patel were more extensive, more coherent, and more

relevant to their business operations than the assortment of regulations the Eighth Circuit identified as

being applicable to Calzone and his farm truck. Consequently, the Eighth Circuit’s ruling in the instant case

represents a dramatic and indefensible departure from

this Court’s guidance.

13

II.

This Court should resolve the split among

circuit courts as to whether the Fourth

Amendment allows law enforcement officers to exercise unlimited discretion regarding whom they will subject to warrantless

searches and seizures.

The Eighth Circuit’s decision deepened a jurisdictional split as to whether the Fourth Amendment

permits executive and administrative officers to exercise unlimited discretion when deciding whom they

will subject to warrantless seizures and searches. The

Sixth, Eighth, and Eleventh Circuits have concluded

that the Fourth Amendment requires no restraint as

to the process through which these officers select targets for warrantless inspections. The Ninth Circuit and

at least four state appellate courts have reached the

opposite conclusion, holding that the Fourth Amendment requires there to be some law or policy in place

to limit the discretion of those officers empowered to

conduct suspicionless searches. In an unusual development, the Fifth Circuit has shifted its stance on this

question, recently clarifying its position that granting

these officers unlimited discretion in choosing whom to

subject to warrantless searches is inconsistent with

the Fourth Amendment. This split in opinion is now

well developed and this case presents a clean fact pattern in which to address the question.

In New York v. Burger, this Court articulated a

three-part test to gauge whether a particular warrantless inspection in the context of a “closely regulated industry” could be considered “reasonable” or whether

14

the inspection would violate even the reduced limitations of the Fourth Amendment. The third prong of the

Burger test asks whether the inspection program in

question (1) adequately notifies the owner of the property to be searched that the search is being made pursuant to law and has a properly defined scope, and

(2) limits the discretion of the inspecting officers. Id. at

703. Lower courts all over the country are divided over

the extent to which the Fourth Amendment requires

laws or policies that will limit an inspecting officer’s

discretion when determining which persons or properties the officer will inspect.

This is a constitutional question the importance of

which this Court has repeatedly emphasized. Long

before it issued its opinion in Burger, this Court explained that one of the purposes of the “warrant machinery contemplated by the Fourth Amendment” was

to insulate property owners from overzealous government intrusion—requiring a disinterested third party

to “warrant” the need for a search meant that property

owners would not be “subject to the discretion of

the officer in the field.” Camera v. Municipal Court of

the City and County of San Francisco, 387 U.S. 523,

532 (1967). Concurring with the majority opinion in

Almeida-Sanchez v. U.S., Justice Powell cautioned that

the Fourth Amendment “does not contemplate the executive officers of Government as neutral and disinterested magistrates,” insisting that “those charged with

. . . investigative and prosecutorial duty should not be

the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks.” Id. Years later

15

this Court again warned that “[t]he authority to make

warrantless searches devolves almost unbridled discretion upon executive and administrative officers,

particularly those in the field, as to when to search and

whom to search.” Barlow’s, Inc., 436 U.S. at 323; see also

Delaware v. Prouse, 440 U.S. 648, 661 (1979) (describing “standardless and unconstrained discretion . . . of

the official in the field” to stop “apparently safe drivers”

as an evil worthy of constraint).

The Ninth Circuit has ruled that the Fourth

Amendment requires limits on inspecting officers’ discretion, holding unconstitutional a roving vehicle stop

by Fish and Wildlife officers of commercial fishermen

for the purpose of inspecting their catch. Tarabochia v.

Adkins, 766 F.3d 1115 (9th Cir. 2014). The panel confirmed that commercial fishing is a closely regulated

industry, but noted that for a warrantless search to be

valid the government still needed to show not only that

a statute authorized such a search, but also that the

statute appropriately limited officers’ discretion to

search. Id. at 1123-24. Although the administrative officials in Tarabochia claimed that a particular statute

authorized their actions, the court pointed out that

even if the cited statute conferred the authority the officials claimed, the search would still be improper because the statute “does not provide any standards to

guide inspectors . . . in their selection of [automobiles]

to be searched[.]” Id. at 1124 (citing Donovan, 452 U.S.

at 601).

The Fifth Circuit recently came to a similar conclusion in Zadeh v. Robinson, 928 F.3d 457 (5th Cir.

16

July 2, 2019), when applying the Burger test to a statute that authorized the warrantless inspection of pain

management clinics. The statute at issue limited the

inspecting officers’ discretion in several ways—the target of the inspection must be a pain management

clinic, the regulatory board itself would perform the inspection, and the search had to focus on determining

compliance with the rules applicable to pain management clinics. But the court nonetheless ruled that the

inspection scheme was unconstitutional because it “did

not limit how the clinics inspected are chosen.” Id. at

468.

The Sixth and Eleventh Circuits have come to the

opposite conclusion when it comes to the third prong of

the Burger test. In U.S. v. Branson, 21 F.3d 113 (6th

Cir. 1994), the Sixth Circuit reversed a district court’s

decision that an administrative inspection scheme did

not adequately restrict the inspectors’ discretion, holding instead that the officers’ reasons for inspecting the

subject property were not material. Id. at 117. In U.S.

v. Steed, 548 F.3d 961 (11th Cir. 2008), the court observed that four state appellate courts2 had struck

down inspection statutes for failure to limit officers’

discretion regarding which vehicles to inspect, but concluded that it was “difficult to reconcile” those cases

with Burger because the record in Burger did not

2

State v. McClure, 74 S.W.3d 362, 373-76 (Tenn. Crim. App

2001); State v. Landrum, 739 N.E.2d 1159, 1165 (Ohio Ct. App.

2000); State v. Hone, 866 P.2d 881, 883 (Ariz. Ct. App. 1993);

Com. v. Bizarria, 578 N.E.2d 424, 429 (Mass. Ct. App. 1991).

17

reveal why the officers had decided to inspect his business. Id. at 974.

Lower courts’ confusion as to what, precisely, the

third prong of the Burger test requires is perhaps best

indicated by the fact that before the Fifth Circuit held

in Zadeh that a warrantless inspection scheme must

restrict the inspectors’ discretion as to whom would be

subjected to such a search, it seemed to indicate the

opposite conclusion in U.S. v. Fort, 248 F.3d 475 (5th

Cir. 2001). In Fort the Fifth Circuit was analyzing a

statute similar to § 304.230, which authorized warrantless vehicle stops along Texas highways. The Fort

court first noted that the statute provided vehicle owners adequate notice that inspectors could seize and

search their vehicles, adding that the statute “limits

the discretion of the inspecting officers.” But the court

then proceeded to say that the statutes “are subject to

criticism for failing to provide specific limitations on

the officer’s discretion in making the decision to stop.”

Id. at 482. Whatever criticism the court might have

thought appropriate, however, it upheld (based on

“background testimony”) the constitutionality of the

warrantless stop at issue in that case. The Zadeh court

faintly acknowledged that its conclusion on this point

was inconsistent with the outcome in Fort, but appears

not to have directly repudiated the earlier case. Zadeh,

928 F.3d at 470.

In the course of this litigation Calzone plainly

and repeatedly insisted that the stop of his vehicle

was unconstitutional in part because it was initiated

by a highway patrol officer exercising unlimited

18

discretion as to which commercial vehicles he would

seize and search. App. 22. The Eighth Circuit’s July 26,

2019 opinion gave short shrift to this argument. App.

9. There is no question, however, that Calzone raised

the issue in his Complaint and continued to press the

argument throughout this litigation. Due to the growing division among this nation’s lower courts as to

whether the Fourth Amendment allows investigative

officers in the field to have unlimited discretion when

it comes to whom they will seize and search, this Court

needs to squarely consider and resolve this issue.

III. This case is an ideal vehicle for clarifying

these issues.

The record and the legal issues in this case are

cleanly presented. There is no dispute over any of the

material facts as the lower courts granted the government summary judgment as to Count I of Calzone’s

Complaint and judgment on the pleadings as to Count

II of his Complaint.

The record confirms that Calzone does not do business as a professional commercial trucker, and the

lower courts acknowledged that because of the limitations on how Calzone uses his truck, he and his truck

are subject to only a relative handful of regulations. If,

as Calzone has argued, this Court’s precedent limits

the “closely regulated industry” exception to circumstances in which a person has chosen to do business in

the relevant industry, then Calzone enjoyed the full

protections of the Fourth Amendment when he was

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subjected to the suspicionless seizure of his farm vehicle on June 3, 2013.

The second question presented is similarly free

from any factual dispute. When the highway patrol officer decided to initiate the roving, suspicionless stop

of Calzone’s truck he had not observed any violation of

the law and he had unlimited discretion to stop any

commercial vehicle he desired. This Petition has shown

that the Fifth and Ninth Circuits have held that the

Fourth Amendment forbids an executive or administrative officer to exercise this sort of unlimited discretion in initiating a warrantless, suspicionless search or

seizure, while the Sixth, Eighth, and Eleventh Circuits

have held that this level of discretion is constitutionally permissible. The Court should grant this Petition

for the purpose of resolving this circuit split and ensuring the uniform application of this constitutional principle throughout the nation.

------------------------------------------------------------------

CONCLUSION

This Court has quite properly insisted that the

“closely regulated industry” exception to the Fourth

Amendment must not be allowed to swallow the general rule that persons have the right be free from

unreasonable searches and seizures. This case demonstrates that the nation’s lower courts are struggling to

understand and enforce the proper boundaries of this

exception, and it also offers the Court a prime opportunity to provide needed clarification. This case also

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presents an opportunity for the Court to resolve a significant circuit split on the question of whether the

Fourth Amendment permits executive or administrative officials in the field to exercise unlimited discretion as to which persons or property they will subject

to a suspicionless search and seizure. This Court

should grant certiorari in this matter for the purpose

of addressing these important constitutional questions.

Respectfully submitted,

DAVID E. ROLAND

FREEDOM CENTER OF MISSOURI

P.O. Box 693

Mexico, Missouri 65265

(573) 567-0307

dave@mofreedom.org

Counsel for Petitioner