Opposition Brief — Ronald Calzone, Petitioner v. Eric Olson, Superintendent, Missouri State Highway Patrol

No. 19-551

________________________________________

IN THE

Supreme Court of the United States

________________________

RONALD CALZONE,

Petitioner,

v.

ERIC T. OLSON,

Respondent.

________________________

On Petition for a Writ of Certiorari

To the Eighth Circuit Court of Appeals

________________________________________

BRIEF IN OPPOSITION

________________________________________

ERIC S. SCHMITT

Attorney General of

Missouri

OFFICE OF THE

MISSOURI ATTORNEY

GENERAL

P. O. Box 899

Jefferson City, MO

65102

Peter.Reed@ago.mo.gov

(314) 340-7366

D. JOHN SAUER

Solicitor General

PETER T. REED*

Deputy Solicitor General

*Counsel of Record

DEBORAH BELL YATES

Assistant Attorney General

Attorneys for Respondent

________________________________________

i

QUESTIONS PRESENTED

(1) Does the Fourth Amendment exception

allowing warrantless stops of commercial motor

vehicles apply to the heavy commercial vehicle

Petitioner uses in support of his commercial

enterprise?

(2) Does the Fourth Amendment allow random

roadside inspections of commercial motor vehicles?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

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

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

INTRODUCTION ........................................................1

STATEMENT ..............................................................3

REASONS FOR DENYING THE PETITION ............ 5

I. The Eighth Circuit’s opinion falls squarely

in line with many other cases upholding

warrantless searches of heavy commercial

vehicles..................................................................... 5

A. The lower courts all agree that

warrantless searches of heavy commercial

vehicles are constitutional. .................................5

B. A warrantless search of Calzone’s heavy

commercial vehicle falls comfortably in line

with the decisions of other courts. ......................7

C. Calzone’s arguments turn on fact-bound

and state-law issues. ......................................... 10

II. The Fifth and Ninth Circuits agree that

random inspections are constitutional in the

commercial-vehicle context. .................................. 11

A. The Fifth and Ninth Circuits have upheld

random inspections of heavy commercial

vehicles. .............................................................. 11

B. The more generalized split Calzone

identifies is largely illusory and certainly not

implicated here. ................................................. 15

C. Significant vehicle problems weigh

against granting review. ................................... 18

CONCLUSION .......................................................... 19

iii

TABLE OF AUTHORITIES

Cases

City of Los Angeles, Cal. v. Patel,

135 S. Ct. 2443 (2015) .............................................6

Colonnade Catering Corp. v. United States,

397 U.S. 72 (1970) ................................................... 6

Contreras v. City of Chicago,

119 F.3d 1286 (7th Cir. 1997) ............................... 18

Donovan v. Dewey,

452 U.S. 594 (1981) ..................................... 6, 12, 16

Matter of Henry,

941 F.3d 147 (5th Cir. 2019) ................................. 17

New York v. Burger,

482 U.S. 691 (1987) ....................................... passim

State v. Rodriguez,

877 S.W.2d 106 (Mo. banc 1994) .............................8

Tarabochia v. Adkins,

766 F.3d 1115 (9th Cir. 2014) ................... 17, 18, 19

United States v. Biswell,

406 U.S. 311 (1972) ................................................. 6

United States v. Delgado,

545 F.3d 1195 (9th Cir. 2008) ....................... passim

United States v. Dominguez–Prieto,

923 F.2d 464 (6th Cir. 1991) ............... 5, 7, 8, 12, 13

iv

United States v. Fort,

248 F.3d 475 (5th Cir. 2001) ............. 5, 7, 12, 14, 15

United States v. Maldonado,

356 F.3d 130 (1st Cir. 2004) .............. 5, 7, 13, 18, 19

United States v. Mitchell,

518 F.3d 740 (10th Cir.) ........................................ 18

United States v. Raub,

637 F.2d 1205 (9th Cir. 1980) ............................... 15

United States v. Ruiz,

569 F.3d 355 (8th Cir. 2009) ...................................5

United States v. Vasquez–Castillo,

258 F.3d 1207 (10th Cir. 2001) ........................... 5, 7

V-1 Oil Co. v. Means,

94 F.3d 1420 (10th Cir. 1996) ............................... 13

Zadeh v. Robinson,

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

Statutes

42 U.S.C. Section 1983 ................................................3

Mo. Rev. Stat. Section 301.010(9) ...............................8

Mo. Rev. Stat. Section 304.230 ........................... 3, 4, 9

Mo. Rev. Stat. Section 307.350.1(4) ............................ 9

Regulations

49 C.F.R. Section 390.5 ...............................................8

1

INTRODUCTION

Calzone raises two questions arising from the

application of well-established legal holdings to the

particular facts of this case. These splitless, factbound questions do not warrant review.

First, the Eighth Circuit’s application of the closely

regulated industry exception falls comfortably in line

with decisions from other circuits. Six circuit courts

have held that heavy commercial vehicles may be

subject to warrantless roadside searches under the

closely regulated industry exception to the Fourth

Amendment. Given their size and weight, heavy

commercial vehicles present unique safety concerns

that justify pervasive regulation—to ensure the safety

of other motorists, to protect public roads and hold

infrastructure costs in check, and to regulate what

commodities may be safely transported on public

thoroughfares. The Eighth Circuit rightly applied

this well-established rule to the 54,000-pound

commercial dump truck that Calzone uses “in

furtherance of his private commercial venture.” Pet.

App. 2. “By choosing to operate a heavy truck in

furtherance of a commercial venture, Calzone subjects

himself to a pervasive regulatory scheme and has a

reduced expectation of privacy.” Pet. App. 8.

Moreover, Calzone’s petition shows that this

question turns on fact-bound and state-law issues. He

insists he did not “choose” to subject himself to

pervasive regulation, but the Eighth Circuit

disagreed. He suggests his vehicle is just a “farm

truck,” but the Eighth Circuit found it was a

commercial motor vehicle. And he insists that he falls

largely outside Missouri’s regulatory scheme, but the

Eighth Circuit rejected his reading of Missouri law.

These questions do not warrant this Court’s review.

2

Second, Calzone’s perceived split between the

Eighth Circuit and the Fifth and Ninth Circuits over

random inspections does not exist. Both of those

courts have expressly upheld random warrantless

inspections of heavy commercial vehicles just as the

Eighth Circuit did here. In fact, the Ninth Circuit has

specifically upheld Missouri’s inspection statute

against a similar legal challenge. The cases Calzone

cites in support of the perceived split are from other

contexts and cannot carry the weight he puts on them.

In both instances, the language Calzone cites is only

dicta.

That dicta does not say that random

inspections are impermissible; it merely says that

officer discretion must be cabined in some way. The

Eighth Circuit agreed and found that standard met

here. Missouri’s statute is an adequate substitute for

a warrant because it “provide[s] notice” to drivers of

commercial vehicles of the possibility of roadside

inspections. Far from giving officers “unfettered

discretion,” the Missouri statute carefully “limit[s]”

their discretion by prescribing the acceptable scope of

the search. As both the Fifth Circuit and Ninth

Circuit have recognized in other cases, these two

safeguards are constitutionally sufficient.

In addition, significant vehicle problems weigh

against review of this question as well.

The Court should deny review.

3

STATEMENT

In June 2013, a Missouri State Highway Patrol

corporal stopped Petitioner Ronald Calzone while he

was driving a heavy dump truck on United States

Highway 63. Pet. App. 25. Calzone uses the dump

truck “in support of his cattle and horse ranch.” Pet.

App. 2. The truck doors are marked with the name of

that business operation, “Eagle Wings Ranch.” See

Pls. Stat. of Uncontroverted Material Facts at ¶ 38.

The dump truck has Missouri plates marking it as a

54,000-pound vehicle for local commercial use, and as

a farm vehicle with an “F.” Pet. App. 2.

The Highway Patrol corporal asked Calzone if he

could inspect the truck. Pet. App. 25. Calzone

refused. Id. The Highway Patrol corporal explained

that Mo. Rev. Stat. § 304.230 expressly authorizes the

stop and inspection of commercial vehicles even

without probable cause, and noted that the refusal to

comply could result in a citation. Id. Calzone again

refused. Id. The corporal issued the citation, which

was later dismissed for lack of prosecution. Id.

Calzone then filed this 42 U.S.C. § 1983 suit

alleging that Mo. Rev. Stat. § 304.230 is

unconstitutional on its face and as applied. Pet. App.

26. The district court granted summary judgment to

the State on the facial challenge and judgment on the

pleadings on the as-applied challenge. Pet. App. 4748.

On appeal, the Eighth Circuit affirmed on the

facial challenge, but remanded the as-applied

challenge for a decision on the merits. Pet. App. 3334. The court ruled that Missouri closely regulates

commercial trucking, so it may lawfully conduct

warrantless inspections of commercial trucks even

without probable cause. Pet. App. 31-32. The court

4

also explained that the statute was an adequate

substitute for a warrant because it gave drivers notice

that random inspections could occur, and

appropriately prescribed the scope of such a search.

Id. Calzone did not appeal this ruling.

On remand, the district court granted summary

judgment to the State on the merits of Calzone’s asapplied challenge. Pet. App. 22-23. First, the court

held that Calzone is subject to Missouri’s commercial

motor vehicle regulations: he has a commercial

driver’s license, his truck is registered for local

commercial use, and the truck meets Missouri’s

statutory definition of a commercial motor vehicle.

Pet App. 14-16. Second, the court held that the

commercial trucking industry is closely regulated

even as applied to Calzone, despite some statutory

and regulatory exemptions for farm vehicles. Pet.

App. 16-21. Third, the court held that Mo. Rev. Stat.

§ 304.230, as applied in this case, is an adequate

substitute for a warrant. Pet. App. 21.

The Eighth Circuit affirmed. Pet. App. 9. Calzone

had argued that he was “exempt from the lion’s share”

of Missouri’s regulations aimed at commercial

trucking. Pet. App. 5. But the Eighth Circuit

disagreed, holding that Calzone’s “proposed

interpretation cannot be squared with the structure of

the state statute.” Pet. App. 6, 7-8. Moreover, the

court noted that just because Missouri “tailors its

system to fit different types of commercial motor

vehicles does not mean that Calzone is outside of the

‘closely regulated’ industry of commercial trucking.”

Pet. App. 8. He still operates a heavy commercial

vehicle “in support of a commercial enterprise.” Id.

“By choosing to operate a heavy truck in furtherance

of a commercial venture, Calzone subjects himself to

a pervasive regulatory scheme and has a reduced

5

expectation of privacy.” Id. The court also rejected

Calzone’s arguments about officer discretion, noting it

had already rejected “these same arguments” when

considering the facial challenge. Pet. App. 9.

Calzone’s petition to this Court followed.

REASONS FOR DENYING THE PETITION

I.

The Eighth Circuit’s opinion falls squarely

in line with many other cases upholding

warrantless searches of heavy commercial

vehicles.

Calzone asserts that the Eighth Circuit’s opinion

is a “dramatic and dangerous expansion” of the

closely-regulated industry exception. Pet. 10-12. But

a closer look shows the Eighth Circuit’s opinion closely

aligns with this Court’s cases and the relevant

decisions of other circuits regarding closely-regulated

industries. Indeed, Calzone cites no split on this

point, and there is none.

A. The lower courts all agree that

warrantless

searches

of

heavy

commercial vehicles are constitutional.

Six different circuit courts unanimously agree that

regulatory schemes providing for the warrantless

inspection of heavy commercial vehicles are

constitutional under the closely-regulated industry

exception. United States v. Ruiz, 569 F.3d 355, 357

(8th Cir. 2009); United States v. Delgado, 545 F.3d

1195, 1202 (9th Cir. 2008); United States v.

Maldonado, 356 F.3d 130, 135–36 (1st Cir. 2004);

United States v. Fort, 248 F.3d 475, 481 (5th Cir.

2001); United States v. Vasquez–Castillo, 258 F.3d

1207, 1211 (10th Cir. 2001); United States v.

Dominguez–Prieto, 923 F.2d 464, 468–69 (6th Cir.

1991).

6

This well-established principle follows from this

Court’s cases governing closely regulated industries.

Administrative searches of closely regulated

industries are an “exception to the warrant

requirement.” City of Los Angeles, Cal. v. Patel, 135

S. Ct. 2443, 2452 (2015). This exception recognizes

that some activities present such “a clear and

significant risk to the public welfare” as to justify

pervasive regulation.

Id. at 2454.

Pervasive

regulation, in turn, means that ‘“no reasonable

expectation of privacy . . . could exist’” for those

engaged in such activities. Id. (citation omitted). This

Court has noted three factors to measure the

reasonableness of such regulatory schemes: (1) a

substantial governmental interest must motivate the

regulatory scheme; (2) warrantless inspections must

be “necessary to further the regulatory scheme”; and

(3) the statute’s inspection program must provide “a

constitutionally adequate substitute for a warrant.”

New York v. Burger, 482 U.S. 691, 702–703 (1987)

(citations and quotation marks omitted).

As Patel notes, safety concerns are often the

motivating factor behind pervasive regulatory

schemes. Patel, 135 S. Ct. at 2454. This court has

upheld warrantless inspections in four such areas:

liquor sales, Colonnade Catering Corp. v. United

States, 397 U.S. 72, 77 (1970); firearms dealing,

United States v. Biswell, 406 U.S. 311, 315 (1972)

(noting the statutory scheme was “of central

important to federal efforts to prevent violent crime”);

mining, Donovan v. Dewey, 452 U.S. 594, 602 (1981)

(describing the mining industry as “among the most

hazardous in the country”); and running an

automobile junkyard, Burger, 482 U.S. at 709 (noting

such junkyards “provide the major market for stolen

vehicles and vehicle parts”). The circuit courts have

added several more, including child day care

7

providers, pawnbrokers, pharmacies, securities

traders, horse racing, and (as here) heavy commercial

vehicles. See 79 Corpus Juris Secundum, Searches

§ 138 (Dec. 2019).

Significant safety concerns motivate the pervasive

regulation of heavy commercial vehicles. Missouri,

like other states, “has a substantial interest in

ensuring the safety of the motorists on its highways

and in minimizing damage to the highways from

overweight vehicles.” Pet. App. 31. Regulating

commercial trucking is important “to ensure traveler

safety,” hold infrastructure “costs in check,” and

“restrict what commodities may be transported” on

public roads. Maldonado, 356 F.3d at 135; Fort, 248

F.3d at 480 (“[T]he state has a substantial interest in

traveler safety and in reducing taxpayer costs that

stem from personal injuries and property damage

caused by commercial motor carriers.”); United States

v. Vasquez-Castillo, 258 F.3d at 1211 (‘“The state

clearly has a substantial interest in regulating

commercial carriers to protect public safety on the

highways.’”) (internal brackets and citations omitted);

Dominguez-Prieto, 923 F.2d at 468 (“[T]he safe

operation of large commercial vehicles is critical to the

welfare of the motoring public.”). Although particular

uses or particular cargo may present additional

dangers, these safety concerns arise from the heavy

commercial vehicle itself.

B. A warrantless search of Calzone’s heavy

commercial vehicle falls comfortably in

line with the decisions of other courts.

The Eighth Circuit’s decision fits comfortably

within this line of cases. Calzone voluntarily chose to

use a heavy 27-ton dump truck on public roads and in

support of a commercial enterprise. Pet. App. 8. That

decision implicated the State’s regulatory scheme and

8

public safety interests, and

expectation of privacy. Id.

reduced

Calzone’s

Contrary to his assertions, Calzone’s vehicle is no

ordinary “farm truck.” Pet. 10. His heavy dump truck

has a gross vehicle weight rating of 54,000 pounds,

Pet. App. 2—several times the weight rating of the

heaviest pickup trucks. This weight rating easily

meets the definition of a “commercial motor vehicle”

under both state and federal law. Mo. Rev. Stat.

§ 301.010(9); 49 C.F.R. § 390.5 (including all vehicles

over 10,000 pounds). Calzone owns a horse and cattle

ranching operation. Pet App. 2. He uses the heavy

dump truck “in support of” this “commercial venture.”

Id. The name of the business even appears on the side

of the truck. Pl. SUMF at ¶ 38.

The same safety concerns that justify closely

regulating other heavy commercial vehicles also

justify regulating Calzone’s vehicle. Again, “Missouri

has a substantial interest in ensuring the safety of the

motorists on its highways and in minimizing damage

to the highways from overweight vehicles.” Pet. App.

31; State v. Rodriguez, 877 S.W.2d 106, 109 (Mo. banc

1994) (“[Missouri’s] interest in stopping, weighing and

inspecting vehicles is the product of concern for the

safety of those travelling a state’s highways and the

necessity of minimizing the destructive impact of

overweight vehicles on those highways.”). Those

safety interests apply regardless of whether Calzone

is driving a heavy dump truck or a tractor-trailer. The

act of driving the commercial vehicle creates the

safety concerns that justify close regulation. If

anything, commercial vehicles not owned by an

established motor carrier may be more likely to be out

of compliance with state safety requirements. See

Delgado, 545 F.3d at 1198 (citing testimony to this

effect).

9

Calzone should have known that using his heavy

truck on public roads subjected him to a range of

safety regulations—including warrantless safety

inspections. Calzone admits that his dump truck is a

commercial vehicle and that he registered the vehicle

for local commercial use and paid a fee based on the

vehicle’s weight rating. Pet. App. 2, 5. Calzone also

took his heavy truck in for safety inspections, which

are required for all commercial vehicles registered at

over 24,000 pounds. Mo. Rev. Stat. § 307.350.1(4).

And the Eighth Circuit noted that Calzone’s vehicle is

subject to a wide range of safety regulations. Pet. App.

5-7. Missouri law gives drivers notice that such

vehicles also may be subject to warrantless roadside

safety inspections given their size. Mo. Rev. Stat.

§ 304.230. Contrary to Calzone’s Petition, then,

driving a heavy commercial vehicle on public roads

does require “governmental permission.” Pet. 10. And

it should: heavy vehicles are dangerous whether used

by motor carriers, big box stores, gas stations,

construction companies, landscape businesses, or

farming operations.

Thus, when Calzone chose to drive his 54,000

pound dump truck on Missouri roads, he acquiesced

to warrantless safety inspections. Calzone made a

decision to engage in a closely regulated activity. Pet.

App. 2, 5. That decision changed his expectation of

privacy under the Fourth Amendment. Pet. App. 8.

“By choosing to operate a heavy truck in furtherance

of a commercial venture, Calzone subjects himself to

a pervasive regulatory scheme and has a reduced

expectation of privacy.” Id. Calzone could not ‘“help

but be aware’” that his heavy truck was a commercial

vehicle ‘“subject to periodic inspections undertaken

for specific purposes.’” Burger, 482 U.S. at 703

(citation omitted).

10

C. Calzone’s arguments turn on fact-bound

and state-law issues.

Calzone tries to position himself outside the

commercial trucking industry, Pet. 10–11, but this

attempt simply confirms that his case is a poor vehicle

to address any broader legal questions.

First, Calzone’s perceived “dramatic[] expan[sion]”

of precedent is not about legal standards at all, but

the application of established principles to the

undisputed facts. He insists that he has “not chosen

to do business as a professional commercial trucker,”

Pet. 10, but the Eighth Circuit noted that he drove his

heavy dump truck for commercial purposes as part of

his profession. Pet. App. 2. Calzone did in fact make

a “choice to pursue a certain kind of business

opportunity” that subjected him to close regulation.

Pet. 11. He also insists that his vehicle is just a

harmless “farm truck.” Pet. 10. But the Eighth

Circuit disagreed, finding that it was a commercial

motor vehicle in every sense of the term. Pet. App. 89. This Court does not grant certiorari to reweigh

these kind of fact-bound questions alleging the

“misapplication of a properly stated rule of law.” Sup.

Ct. Rule 10.

Second, Calzone’s perception that he falls outside

Missouri’s regulatory scheme (or at least on its

periphery) turns largely on his reading of Missouri

law. The Eighth Circuit dedicated most of its opinion

to rejecting Calzone’s claim that he was “not part of

the ‘closely regulated’ industry” because he was

“exempt from the lion’s share” of Missouri’s

regulations. Pet. App. 5-8. Indeed, much of Calzone’s

briefing before the Eighth Circuit involved exhaustive

analysis of each Missouri statute to determine

whether Calzone’s vehicle primarily fell within or

without Missouri’s regulatory scheme. The first issue

11

raised by Calzone’s petition would, at least on his

theory of the case, turn on a similar blow-by-blow

analysis of Missouri’s regulatory scheme as applied to

Calzone.

This Court typically does not grant

certiorari to resolve such state-law-bound issues.

Sup. Ct. Rule 10.

II. The Fifth and Ninth Circuits agree that

random inspections are constitutional in the

commercial-vehicle context.

Nor does Missouri’s statute give officers “unlimited

discretion,” Pet. 13-19. Missouri’s law carefully

prescribes the parameters of the search. Calzone’s

second argument only addresses the decision to

conduct random roadside inspections. Id. (seeking

review of “whether . . . officers . . . exercise unlimited

discretion when deciding whom” to search).

On that narrow point, Calzone asserts that the

Eighth Circuit’s opinion “deepened a jurisdictional

split” with the Fifth Circuit and Ninth Circuit about

whether officers may conduct random inspections in

closely-regulated industries. Id. But those very

courts have upheld random inspections in the

commercial-motor-vehicle context.

Any more

generalized split is both illusory and not implicated

here. Significant vehicle problems also weigh heavily

against granting review.

A. The Fifth and Ninth Circuits have upheld

random inspections of heavy commercial

vehicles.

Calzone asserts that the Eighth Circuit’s decision

below conflicts with opinions from the Fifth and Ninth

Circuits. Pet. 13-19. But the Fifth and Ninth Circuits

have specifically upheld randomized, warrantless

searches of commercial motor vehicles—in complete

agreement with the Eighth Circuit’s opinion here and

12

the opinions of every court to address the question.

See Delgado, 545 F.3d at 1202–03 (9th Cir.) (rejecting

argument that Missouri’s statute gives officers

“unfettered discretion”); Fort, 248 F.3d at 481 (5th

Cir.) (upholding “random, suspicionless stops and

inspections of commercial trucks”). At least in this

specific context, these circuits are in complete

agreement.

Calzone’s contrary position “imports into the

Burger analysis a requirement that Burger does not

mandate.” Delgado, 545 F.3d at 1202-03. Burger says

that a regulatory scheme must provide ‘“a

constitutionally adequate substitute for a warrant.’”

Burger, 482 U.S. at 703 (citation omitted). This

means the statute must give notice to regulated

parties and must cabin the discretion of the inspecting

officers to a “properly defined scope.” Id. A regulatory

scheme can constitutionally allow randomized

searches and still “limit the discretion of the

inspecting officers” as to the things or places to be

searched. Burger, 482 U.S. at 703. Indeed, this Court

upheld a mining statute providing that “no advance

notice of an inspection shall be provided to any

person.” Donovan, 452 U.S. at 603 (citation omitted).

It has also upheld a statute providing for inspections

at any time during regular business hours. Burger,

482 U.S. at 711.

In the commercial-vehicle context in particular,

“effective enforcement would be nearly impossible

without impromptu, warrantless searches.” Pet. App.

31. Commercial vehicles are inherently transitory—

making warrants infeasible and scheduled stops

impractical. Id. Commercial vehicles also operate

around the clock. So cabining officer discretion to

specific times would “render the entire inspection

scheme unworkable and meaningless.” Dominguez–

13

Prieto, 923 F.2d at 470 (“Trucks operate twenty-four

hours a day and the officers must, necessarily, have

the authority to conduct these administrative

inspections at any time.”). Moreover, regulatory

violations are “difficult[]” to detect “by routine

observation.” Pet. App. 31; Maldonado, 356 F.3d at

136 (“[B]ecause violations of the regulatory scheme

often are not apparent to a patrolling officer,

inspections are sometimes the only way in which

violations can be discovered.”). Whether a truck’s load

is properly secured, its brakes are up-to-date, or it is

carrying the proper safety equipment may be hard to

determine without a stop. And scheduled stops are

not as effective as random stops. See V-1 Oil Co. v.

Means, 94 F.3d 1420, 1426 (10th Cir. 1996) (“Trucks

can easily avoid fixed checkpoints and, by use of

citizens’ band radios, can avoid temporary

checkpoints.”). Many courts have held that these

factors make such stops even “more compelling” here

than “in Burger.” Dominguez–Prieto, 923 F.2d at 469

(6th Cir. 1991) (“Like the stolen cars and automobile

parts which pass quickly through an automobile

junkyard, trucks pass quickly through states and out

of the jurisdictions of the enforcement agencies”);

Maldonado, 356 F.3d at 136 (1st Cir. 2004) (holding

that “effective enforcement of the regulatory regime

would be impossible in the absence of impromptu

inspections”); Means, 94 F.3d at 1426 (10th Cir. 1996)

(holding that “it could reasonably be concluded that

random truck safety inspections are necessary” to

further the State’s interest in “public safety on the

highways”).

Such searches are an adequate substitute for a

warrant because the statutory scheme provides many

other safeguards. The statute “provide[s] notice” to

drivers of commercial vehicles “of the possibility of

roadside inspection by a designated law enforcement

14

officer.” Pet. App. 32. And far from giving officers

“unfettered discretion,” the statute specifically and

carefully “limit[s] the scope of the officer’s

inspections.” Pet. App. 32. This is exactly what

Burger requires. See Delgado, 545 F.3d at 1203.

Contrary to Calzone’s assertions, Pet. 15, the

Ninth Circuit agrees with the Eighth Circuit on these

points. In fact, the Ninth Circuit upheld Missouri’s

regulatory scheme from a very similar challenge.

Delgado, 545 F.3d at 1202-03. Like Calzone, Delgado

asserted that “the Missouri statute is an inadequate

substitute for a warrant because it provides

enforcement officers with unfettered discretion.” Id.

at 1202. The Ninth Circuit disagreed, noting that the

statute in Burger “functioned as a proper warrant

substitute” even though it ‘“was unclear . . . why . . .

Burger’s junkyard was selected for inspection.’” Id. at

1203 (quoting Burger, 482 U.S. at 694 n.1). This

showed that understanding why a particular stop

occurred is not essential to the analysis. Id. As in

Burger, it was enough that Missouri’s statute “informs

operators of commercial vehicles that they are subject

to inspection” and cabins the “permissible scope” of

the inspections to “regulatory compliance.” Id. This

remains true today.

Calzone is mistaken about the Fifth Circuit too.

Pet. 15-16. The Fifth Circuit has upheld officers’

“unfettered discretion in deciding to make the stop in

order to perform the inspection.” Fort, 248 F.3d at

481. Fort cited the same two justifications relied on

by the Eighth Circuit here. “Because of the transitory

nature of the commercial trucking industry, we

conclude that the need for warrantless stops and

inspections is even more compelling than the

warrantless inspections of automobile junkyards

upheld in Burger.”

Id. (citations omitted).

15

Randomized vehicle safety inspections were also

necessary to identify “problems that may not be

apparent to officers on patrol.” Id. at 481. Texas’s

scheme for “random, suspicionless stops and

inspections of commercial trucks,” therefore, was

constitutional. Id.

Because the circuit courts agree that random

searches of commercial motor vehicles are

appropriate, this case does not implicate any more

generalized split identified by Calzone. Whatever the

Fifth and Ninth Circuits have said in other contexts,

they wholly agree with the Eighth Circuit in this

context.

B. The more generalized split Calzone

identifies is largely illusory and certainly

not implicated here.

In addition, a closer look at the more generalized

split identified by Calzone shows it is largely illusory.

Calzone says that three circuits have upheld random

inspections in closely-regulated industries. Pet. 13.

But, he asserts, the Ninth Circuit and Fifth Circuit

disagree. Id. This argument over-reads the recent

decisions of those circuits.

The Ninth Circuit case Calzone cites, Pet. 15, ruled

on statutory grounds, not constitutional grounds. See

Tarabochia v. Adkins, 766 F.3d 1115 (9th Cir. 2014).

The Ninth Circuit had previously held that the fishing

industry is closely regulated and subject to

warrantless inspections. See United States v. Raub,

637 F.2d 1205, 1209 (9th Cir. 1980). But the

“authority to search” in Raub applied “only to fishing

vessels within conventional waters.” Id. at 1210. In

Tarabochia, state officials did not stop a fishing vessel

or even inspect the catch at the docks, but instead

conducted a suspicionless stop of an ordinary vehicle

16

driving on public roads. Tarabochia, 766 F.3d at 1119.

The state argued the searches were authorized by

statutes providing for warrantless inspections of those

“engaged in fishing” and reasonable inspections of

fishers’ “premises, containers, fishing equipment, fish

. . . and records.” Id. at 1123-24. The Ninth Circuit

held that neither statute applied—dryly noting that

one could not be ‘“engaged in fishing’ while driving on

a highway.” Id.

In dicta, the Court went on to say that even if the

statutes could be read in the unnaturally broad way

urged by the state, such a statute would not fall within

the closely-regulated industry exception.

“[A]

commercial fisher is unlikely to be aware that this

provision could subject him or her to a stop or search

while” driving on the highway because that possibility

was not evident from the statutes’ plain text. Id. at

1123. Moreover, the state’s reading lacked any

limiting principle: it would “authorize inspection of

any automobile possibly containing fish or wildlife at

any time, . . . and any location, even if hundreds of

miles from the closest fishing grounds.” Id. at 1123.

Calzone cites this dicta to support the Ninth

Circuit’s purported split from other circuits. Pet. 15.

Tarabochia, however, relied on a distinction already

made by this Court in Donovan, 452 U.S. at 601. A

regulatory scheme that does not cabin officer

discretion at all—“either in their selection of

establishments to be searched or in the exercise of

their authority to search”—does not provide sufficient

notice to the regulated party and is unconstitutional.

Id. at 601. But a regulatory scheme may be upheld if

it makes the regulated party “aware that he ‘will be

subject to effective inspection”’ and cabins the scope of

the search. Id. at 603 (citation omitted).

This distinction explains the Ninth Circuit’s

17

decisions in both Tarabochia and Delgado.

In

Tarabochia, the state’s overbroad reading of the

statute was so facially implausible that it provided no

notice or limiting principle. 766 F.3d at 1123. In

Delgado, Missouri’s regulatory scheme properly

“inform[ed] operators of commercial vehicles that they

are subject to inspection” and limited the “permissible

scope” of the inspection to “regulatory compliance.”

Delgado, 545 F.3d at 1203. This case is like Delgado

since both cases are about Missouri’s regulatory

scheme. And this case is unlike Tarabochia.

As for the Fifth Circuit, Pet. 15-16, the case

Calzone relies on simply held that the warrantless

search in question did not violate clearly established

law. Zadeh v. Robinson, 928 F.3d 457, 468-70 (5th

Cir. 2019). In dicta, the Court opined that the medical

profession was not a closely regulated industry. Id. at

466. It also suggested that Texas’s regulatory scheme

did not provide a proper substitute for a search

warrant. Id. at 467-68. But this dicta did not overrule

Fort and could not have done so. See Matter of Henry,

941 F.3d 147, 151 (5th Cir. 2019) (‘“[A] panel of this

court can only overrule a prior panel decision if such

ruling is unequivocally directed by controlling

Supreme Court precedent’”) (citation omitted). To the

contrary, Zadeh recognized that Fort “upheld an

administrative search” where “there were not clear

limits on an officer’s discretion as to whom to stop.”

Zadeh, 928 F.3d at 470. Fort upheld the scheme

anyway because it placed “limits on the conduct of an

officer after” the stop. Id. Calzone’s case is like Fort

and unlike Zadeh.

Accordingly, neither the Ninth Circuit’s decision in

Tarabochia nor the Fifth Circuit’s decision in Zadeh

created a circuit split. Even if they had, this case does

not implicate or contribute to that split because the

18

more specific decisions in Delgado (9th Cir.) and Fort

(5th Cir.) wholly agree with the Eighth Circuit’s

holding here.

C. Significant vehicle problems

against granting review.

weigh

Significant vehicle problems also weigh against

review. As Calzone acknowledges, his argument

about officer discretion goes to Burger’s third factor:

whether “the rule governing the inspections” is “a

constitutionally adequate substitute for a warrant.”

Pet. 14 (quoting Burger, 482 U.S. at 703).

But Burger’s third factor applies to the regulatory

scheme as a whole, not to each individual search.

That is, Calzone’s decision to raise this argument as

part of his as-applied challenge “reflects a

misunderstanding of Supreme Court doctrine.”

Maldonado, 356 F.3d at 136. In Maldonado, the

driver asserted that Burger’s factors were not met

because law enforcement “was trolling for drugs, not

for administrative violations.” Id. The First Circuit

explained that “[t]he Burger criteria apply to a

regulatory scheme generally, not to the particular

search at issue.” Id. Other circuits have adopted this

approach as well. See United States v. Mitchell, 518

F.3d 740, 751 (10th Cir.) (refusing to apply the Burger

factors to an as-applied challenge when the statutory

scheme was previously upheld); Contreras v. City of

Chicago, 119 F.3d 1286, 1290 (7th Cir. 1997)

(explaining that “Burger . . . require[s] only that

warrantless searches in general must be necessary”

and that courts do not have to evaluate “the necessity

of each particular aspect of a regulatory scheme”).

The same is true here. Maldonado shows that

Calzone cannot raise an argument about Burger’s

factors as part of an as-applied challenge. That is the

19

procedural posture of this case. True, the Eighth

Circuit rejected the same argument as part of

Calzone’s prior appeal of his facial challenge. Pet.

App. 9 (“nothing about the nature of his as-applied

challenge changes the answer”). But Calzone did not

appeal that ruling back in 2017. Pet. App. 32. Thus,

the issue is not properly before the Court. See

Maldonado, 356 F.3d at 136.

CONCLUSION

The Court should deny the writ of certiorari.

Respectfully submitted,

ERIC S. SCHMITT

Attorney General

D. JOHN SAUER

Solicitor General

PETER T. REED*

Deputy Solicitor General

*Counsel of Record

DEBORAH BELL YATES

Assistant Attorney General

OFFICE OF THE MISSOURI

ATTORNEY GENERAL

P. O. Box 899

Jefferson City, MO 65102

Peter.Reed@ago.mo.gov

(314) 340-7366

Attorneys for Respondent

December 18, 2019