Petition for Writ of Certiorari — Hieu Minh Le, Petitioner v. United States

No. ______

In the

Supreme Court of the United States

__________________

HIEU MINH LE,

v.

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

__________________

PETITION FOR WRIT OF CERTIORARI

__________________

Robert L. Sirianni, Jr., Esq.

Counsel of Record

BROWNSTONE, P.A.

P.O. Box 2047

Winter Park, Florida 32790-2047

(o) 407-388-1900

robertsirianni@brownstonelaw.com

Counsel for Petitioner

June 23, 2023

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTIONS PRESENTED FOR REVIEW

Whether the Eighth Circuit erred in holding a

North American Standard Inspection Level II

inspection is an adequate substitute for the warrant

requirement and a constitutional administrative

search?

Whether the United States District Court For The

Southern District Of Iowa erred in denying Petitioner

Le’s motion to suppress evidence when it was obtained

beyond the scope of an administrative search?

ii

PARTIES TO THE PROCEEDINGS

The parties to the proceedings before this court are

as follows:

Hieu Minh Le,

United States of America.

LIST OF PROCEEDINGS

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF IOWA

Trial Court Case No. 1:19CR0004

UNITED STATES OF AMERICA v. SANH BIN TRAN,

TU ANH NGUYEN, AND HIEU MINH LE

Motion for a new trial DENIED 6/8/2021. District

Court’s Opinion is Reported at 2021 WL 1325797 and

reproduced in the attached Appendix.

UNITED STATES COURT OF APPEALS FOR THE

EIGHTH CIRCUIT

Case No. 21-2994

UNITED STATES OF AMERICA v. HIEU MINH LE

Judgment Dated 2/8/2023 judgment of the district court

AFFIRMED. Court of Appeals Order is reported at 59

F.4th 958 and is reproduced in the attached Appendix.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW . . . . . . . i

PARTIES TO THE PROCEEDINGS. . . . . . . . . . . . . ii

LIST OF PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . ii

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

PETITION FOR A WRIT OF CERTIORARI . . . . . . 1

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . 1

BASIS FOR JURISDICTION IN THIS COURT. . . . 2

CONSTITUTIONAL PROVISIONS INVOLVED . . . 2

REGULATIONS INVOLVED . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 8

A. Concise Statement of Facts Pertinent to the

Questions Presented.. . . . . . . . . . . . . . . . . . . . 8

B. Procedural History . . . . . . . . . . . . . . . . . . . . . 9

REASONS TO GRANT THIS PETITION. . . . . . . . 11

I. THE DISTRICT COURT AND EIGHTH

CIRCUIT ERRED WHEN BOTH FOUND THAT

FMCSA’S REGULATORY SCHEME IS A

CONSTITUTIONAL ADMINISTRATIVE

SEARCH.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

A. THE EIGHTH CIRCUIT ERRED BY

HOLDING FMCSA’S REGULATORY

SCHEME IS AN ADEQUATE SUBSTITUTE

FOR THE WARRANT REQUIREMENT. . . 14

iv

a. FMCSA’S REGULATORY SCHEME

DOES NOT PROVIDE ADEQUATE

NOTICE

TO

OWNERS

OF

COMMERCIAL VEHICLES THAT THEY

WOULD BE SUBJECT TO UNLIMITED

INSPECTIONS. . . . . . . . . . . . . . . . . . . . . 18

b. NASI LEVEL II INSPECTION

PARAMETERS DO NOT ADEQUATELY

LIMIT OFFICER DISCRETION. . . . . . . 19

II. THE DISTRICT COURT AND EIGHTH

CIRCUIT ERRED WHEN BOTH FOUND THAT

MR. LE’S FOURTH AMENDMENT RIGHT

AGAINST UNREASONABLE SEARCH AND

SEIZURE WAS NOT VIOLATED BY THE

IOWA SEARCH. . . . . . . . . . . . . . . . . . . . . . . . . . 24

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

APPENDIX

Appendix A Opinion in the United States Court of

Appeals for the Eighth Circuit

(February 8, 2023) . . . . . . . . . . . . App. 1

Appendix B Judgment in a Criminal Case in the

United States District Court for the

Southern District of Iowa

(August 27, 2021) . . . . . . . . . . . . App. 13

v

Appendix C Opinion and Order Regarding

Defendants’ Motions for Judgment of

Acquittal or New Trial in the United

States District Court for the Southern

District of Iowa

(June 8, 2021) . . . . . . . . . . . . . . . App. 28

Appendix D Order in the United States District

Court for the Southern District of Iowa

(January 23, 2020) . . . . . . . . . . . App. 41

Appendix E Report and Recommendation on

Motion to Suppress in the United

States District Court for the Southern

District of Iowa

(November 16, 2020) . . . . . . . . . . App. 50

vi

TABLE OF AUTHORITIES

Supreme Court Cases

Arizona v. Gant,

556 U.S. 332 (2009). . . . . . . . . . . . . . . . . . . . . . . 11

City of Los Angeles v. Patel,

576 U.S. 409 (2015). . . . . . . . . . . . . . . . . . . . . . . 13

Colonnade Corp. v. United States,

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

Donovan v. Dewey,

452 U.S. 594 (1981). . . . . . . . . . . . . . . . . . . . . . . 12

Katz v. United States,

389 U.S. 347 (1967). . . . . . . . . . . . . . . . . . . . . . . 11

Marshall v. Barlow’s Inc.,

436 U.S. 307 (1978). . . . . . . . . . . . . . . . . . . . . . . 20

New York v. Burger,

482 U.S. 691 (1987). . . . . . . 11, 12, 13, 14, 16, 17,

19, 20, 21, 22, 23

See v. City of Seattle,

387 U.S. 541 (1967). . . . . . . . . . . . . . . . . . . . . . . 11

United States v. Biswell,

406 U.S. 311 (1972). . . . . . . . . . . . . . . . . . . . 11, 12

Circuit Court Cases

Owner-Operator Independent Drivers Ass., Inc. v.

United States,

840 F.3d 879 (7th Cir. 2016). . . . . . . . . . . . . 16, 18

vii

United States v. Castelo,

415 F.3d 407 (5th Cir. 2005). . . . . . . . . . . . . . . . 18

United States v. Delgado,

545 F.3d 1195 (9th Cir. 2008). . . . . . . . . 16, 17, 19

United States v. Dominguez-Prieto,

923 F.2d 464 (6th Cir.1991) . . . . . . . 16, 17, 18, 19

United States v. Feliciana,

974 F.3d 519 (2020). . . . . . . . . . . . . . . . . . . . . . . 17

United States v. Fort,

248 F.3d 475 (5th Cir. 2001). . . . . . . 16, 17, 18, 21

United States v. Knight,

306 F.3d 534 (8th Cir. 2002). . . . . . . . . . . . . . . . 18

United States v. Maldonado,

356 F.3d 130 (1st Cir. 2004) . . . . . . . . . . . . . 16, 18

United States v. Parker,

587 F.3d 871 (8th Cir. 2009). . . . . . . . . . . . . . . . 16

United States v. Steed,

548 F.3d 961 (11th Cir. 2008). . . . . . . . . . . . 19, 21

United States v. Vasquez-Castillo,

258 F.3d 1207 (10th Cir. 2001). . 16, 17, 18, 19, 22

V-1 Oil Co. v. Means,

94 F.3d 1420 (10th Cir. 1996). . . . . . . . . . . . . . . 22

Statutes

28 U.S.C. § 1253 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

21 U.S.C. § 841 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

viii

21 U.S.C. § 846 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Constitutional Provisions

U.S. Const. amend. IV . . . . . . . . . . . . . . . . . . . . . 2, 11

Federal Regulations

49 C.F.R. § 350.105 . . . . . . . . . . . . . . . . . 2, 14, 18, 21

Other Authorities

Commercial Vehicle Safety Alliance, All Inspection

Levels, https://www.cvsa.org/inspections/allinspection-levels/ (2019) . . . . . . . . . . . . . . . . 14, 15

Commercial Vehicle Safety Alliance, All Inspection

Levels, Level II Inspection: Walk-Around

Driver/Vehicle Inspection, https://www.cvsa.org/

inspections/all-inspection-levels/ (2019) . . . 16, 21

1

PETITION FOR A WRIT OF CERTIORARI

The Petitioner respectfully requests that a Writ of

Certiorari be issued to review the United States

District Court For The Southern District of Iowa’s

denial of a motion to suppress, which was affirmed by

the United States Court Of Appeals For The Eighth

Circuit.

OPINIONS BELOW

The January 23, 2020, order denying Petitioners’

motion to suppress statement and evidence. The order

from the United States District Court For The

Southern District of Iowa is reproduced in the

Appendix (“Pet. App. 41-49”). This order is not

reported.

The February 8, 2023, order from the United States

Court Of Appeals For The Eighth Circuit is reproduced

in the Appendix (“Pet. App. 1-12”) and is reported at 59

F.4th 958.

2

BASIS FOR JURISDICTION IN THIS COURT

The United States Court Of Appeals For The Eighth

Circuit entered judgment on February 8, 2023. This

Court has jurisdiction under 28 U.S.C. § 1253.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fourth Amendment to the United States

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.

U.S. Const. amend. IV.

REGULATIONS INVOLVED

49 C.F.R. § 350.105 provides:

Unless specifically defined in this section, terms

used in this part are subject to the definitions in

49 CFR part 390. As used in this part:

Administrative takedown funds means funds

FMCSA deducts each fiscal year from the

amounts made available for MCSAP and the

High Priority Program for expenses incurred by

FMCSA for training State and local government

employees and for the administration of the

programs.

3

Administrator means the administrator of

FMCSA.

Border State means a State that shares a land

border with Canada or Mexico.

Commercial motor vehicle (CMV) means a motor

vehicle that has any of the following

characteristics:

(1) A gross vehicle weight (GVW), gross vehicle

weight rating (GVWR), gross combination

weight (GCW), or gross combination weight

rating (GCWR) of 4,537 kilograms (10,001

pounds) or more.

(2) Regardless of weight, is designed or used to

transport 16 or more passengers, including the

driver.

(3) Regardless of weight, is used in the

transportation of hazardous materials and is

required to be placarded pursuant to 49 CFR

part 172, subpart F.

Commercial vehicle safety plan (CVSP) means a

State’s CMV safety objectives, strategies,

activities, and performance measures that cover

a 3–year period, including the submission of the

CVSP for the first year and annual updates

thereto for the second and third years.

Compatible or compatibility means State laws,

regulations, standards, and orders on CMV

safety that:

4

(1) As applicable to interstate commerce not

involving the movement of hazardous materials:

(i) Are identical to or have the same effect as the

FMCSRs; or

(ii) If in addition to or more stringent than the

FMCSRs, have a safety benefit, do not

unreasonably frustrate the Federal goal of

uniformity, and do not cause an unreasonable

burden on interstate commerce when enforced;

(2) As applicable to intrastate commerce not

involving the movement of hazardous materials:

(i) Are identical to or have the same effect as the

FMCSRs; or

(ii) Fall within the limited variances from the

FMCSRs allowed under § 350.305 or § 350.307;

and

(3) As applicable to interstate and intrastate

commerce involving the movement of hazardous

materials, are identical to the HMRs.

FMCSA means the Federal Motor Carrier Safety

Administration of the United States Department

of Transportation.

FMCSRs means:

(1) The Federal Motor Carrier Safety

Regulations under parts 390, 391, 392, 393, 395,

396, and 397 of this subchapter; and

(2) Applicable standards and orders issued

under these provisions.

5

HMRs means:

(1) The Federal Hazardous Materials

Regulations under subparts F and G of part 107,

and parts 171, 172, 173, 177, 178, and 180 of

this title; and

(2) Applicable standards and orders issued

under these provisions.

High Priority Program funds means total funds

available for the High Priority Program, less the

administrative takedown funds.

Investigation means an examination of motor

carrier operations and records, such as drivers’

hours of service, maintenance and inspection,

driver qualification, commercial driver’s license

requirements, financial responsibility, crashes,

hazardous materials, and other safety and

transportation records, to determine whether a

motor carrier meets safety standards, including

the safety fitness standard under § 385.5 of this

subchapter, or, for intrastate motor carrier

operations, the applicable State standard.

Lead state agency means the State CMV safety

agency responsible for administering the CVSP

throughout a State.

Maintenance of effort (MOE) means the level of

a State’s financial expenditures, other than the

required match, the Lead State Agency is

required to expend each fiscal year in accordance

with § 350.225.

6

Motor carrier means a for-hire motor carrier or

private motor carrier. The term includes a motor

carrier’s agents, officers, and representatives, as

well as employees responsible for hiring,

supervising, training, assigning, or dispatching

a driver or an employee concerned with the

installation, inspection, and maintenance of

motor vehicle equipment or accessories.

Motor Carrier Safety Assistance Program

(MCSAP) funds means total formula grant funds

available for MCSAP, less the administrative

takedown funds.

New entrant safety audit means the safety audit

of an interstate motor carrier that is required as

a condition of MCSAP eligibility under §

350.207(a)(26), and, at the State’s discretion, an

intrastate new entrant motor carrier under 49

U.S.C. 31144(g) that is conducted in accordance

with subpart D of part 385 of this subchapter.

North American Standard Inspection means the

methodology used by State CMV safety

inspectors to conduct safety inspections of

CMVs. This consists of various levels of

inspection of the vehicle or driver or both. The

inspection criteria are developed by FMCSA in

conjunction with the Commercial Vehicle Safety

Alliance (CVSA), which is an association of

States, Canadian Provinces, and Mexico whose

members agree to adopt these standards for

inspecting CMVs in their jurisdiction.

7

State means a State of the United States, the

District of Columbia, American Samoa, the

Commonwealth of the Northern Mariana

Islands, the Commonwealth of Puerto Rico,

Guam, and the Virgin Islands, unless otherwise

specified in this part.

Traffic enforcement means the stopping of

vehicles operating on highways for moving

violations of State, Tribal, or local motor vehicle

or traffic laws by State, Tribal, or local officials.

8

STATEMENT OF THE CASE

A. Concise Statement of Facts Pertinent to the

Questions Presented.

The Incident In Question

On December 21, 2018, Mr. Tran and Mr. Nguyen

were pulled over by Iowa State Trooper Ken Haas

while pulling an enclosed trailer. (“Pet. App. 29”).

Though not present at the stop, Mr. Le owned the

vehicle driven by Mr. Tran. (“Pet. App. 41-42”). The

trailer was pulled by a fifth wheel connection. (“Pet.

App. 42”). Trooper Haas’s basis for the stop was that

the vehicle exhibited a California Department of Motor

Vehicles’ sticker, a Federal Department of

Transportation (“DOT”) sticker was not displayed and

the windows on the truck were tinted. (“Pet. App. 42”).

Mr. Tran told Trooper Haas that he was hauling a

commercial load. (“Pet. App. 42”). Thus, Trooper Haas,

who is certified to conduct Level II and Level III

commercial vehicle inspections, determined the vehicle

was subject to a commercial vehicle inspection and

began a Level II inspection of the vehicle. (“Pet. App.

42”). Prompted by Trooper Haas, Mr. Tran provided

bills of lading, but no log book as required by the DOT.

(“Pet. App. 43”). Trooper Haas noted inconsistences and

unexpected vagueness in the bills of lading provided by

Mr. Tran. (“Pet. App. 43”). Trooper Haas then

inspected the exterior of the trailer and noticed a brake

system was not connected properly and noticed the

smell of bleach. (“Pet. App. 43”). Mr. Tran indicated he

was not transporting bleach. (“Pet. App. 43”). Trooper

Haas then inspected the interior of the trailer and

9

noticed cargo was improperly secured, including vases

the bill of lading indicated were expensive. (“Pet. App.

43-44”). To Trooper Haas, Mr. Tran’s answers to his

questions about the logistics of Mr. Tran’s travel did

not make sense. (“Pet. App. 44”).

About twenty-five (25) minutes into the inspection,

a certified K-9 police officer arrived with his drugsniffing dog. (“Pet. App. 44”). The officer and dog did

one pass around the trailer and the dog did not alert.

(“Pet. App. 44”). On the second pass, with direction, the

dog alerted. (“Pet. App. 44”). On a third pass around

the trailer, the dog alerted to controlled substances

inside the trailer. (“Pet. App. 44”). At this point, a

search on the containers was performed which resulted

in the seizure of marijuana and other THC products.

(“Pet. App. 44”).

B. Procedural History

Mr. Tran and Nguyen were indicted for charges

related to a conspiracy to distribute marijuana over the

period spanning from November 2, 2018, until at least

March 1, 2019, by Grand Jury in the U.S. District

Court of Southern Iowa. (“Pet. App. 29-30”). On April

23, 2019, Petitioner Le was added to the indictment.

(“Pet. App. 29”). On December 2, 2019, Petitioner and

his co-defendants filed a Motion to Suppress evidence

found at the Iowa traffic stop. (“Pet. App. 41”). The

motion to suppress was denied on January 23, 2020.

(“Pet. App. 49”). A jury trial began on March 29, 2021,

and Mr. Le was convicted of Conspiracy to Distribute

100 Kilograms or More of Marijuana in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. (“Pet. App.

2”). Mr. Le’s co-defendants were also convicted. (“Pet.

10

App. 2”). Mr. Le’s Motion for Judgment of Acquittal

pursuant to Rule 29 of the Federal Rules of Criminal

Proceedings was presented orally at trial, but the

District Court denied to motion at the end of the

proceedings. (“Pet. App. 39-40”). Mr. Le was sentenced

to 120 months incarceration. (“Pet. App. 8”).

On February 8, 2023, the United States Court of

Appeals for the Eighth Circuit affirmed the district

court’s decision to deny the Motion to Suppress and the

Motion for Judgment as a Matter of Acquittal. (“Pet.

App. 12”).

This Petition for Writ of Certiorari followed.

11

REASONS TO GRANT THIS PETITION

I. THE DISTRICT COURT AND EIGHTH

CIRCUIT ERRED WHEN BOTH FOUND THAT

FMCSA’S REGULATORY SCHEME IS A

CONSTITUTIONAL ADMINISTRATIVE

SEARCH.

The Fourth Amendment of the United States

Constitution prohibits unreasonable searches and

seizures. U.S. CONST. AMEND. IV. Searches conducted

without a warrant are unreasonable under the Fourth

Amendment. Arizona v. Gant, 556 U.S. 332, 338 (2009).

Only warrantless searches that are within the

established and well-delineated exceptions can

overcome the presumption of unreasonableness. Id.

The Fourth Amendment is applicable to both

private and commercial property. See v. City of Seattle,

387 U.S. 541, 543, 546 (1967). This means business

owners have an expectation of privacy at home and in

their commercial properties. New York v. Burger, 482

U.S. 691, 699–700 (1987) (citing Katz v. United States,

389 U.S. 347, 361 (1967) (Harlan, J., concurring). On

the other hand, this Court has also held that the

expectation of privacy afforded to commercial property

is lesser than the expectation of privacy afforded to an

individual’s home. United States v. Biswell, 406 U.S.

311, 316 (1972). This lowered expectation of privacy is

especially apparent to highly regulated industries due

to a long history of being “subject[ed] to close

supervision and inspection.” Colonnade Corp. v. United

States, 397 U.S. 72, 77 (1970).

12

Thus, an exception to the warrant requirement was

created for certain administrative searches of “closely

or pervasively regulated industries.” Burger, 482 U.S.

at 707–08. Nevertheless, the administrative search

exception to the warrant requirement does not alleviate

the Fourth Amendment requirement of reasonableness.

Id. at 691. See also Donovan v. Dewey, 452 U.S. 594,

598–99 (1981) (citing Biswell, 406 U.S. at 316) (“The

greater latitude to conduct warrantless inspections of

commercial property reflects the fact that the

expectation of privacy that the owner of commercial

property enjoys in such property differs significantly

from the sanctity accorded an individual’s home, and

that this privacy interest may, in certain

circumstances, be adequately protected by regulatory

schemes authorizing warrantless inspections.”).

In other words, being a closely regulated industry

alone is not an exception to the warrant requirement,

rather, the regulatory scheme allowing searches must

satisfy specific reasonableness conditions. Burger, 482

U.S. at 702–03. “First, there must be a substantial

government interest that informs the regulatory

scheme pursuant to which the inspection was made.”

Id. at 702 (internal quotations omitted). The Burger

Court identified substantial government interests in

“improving the health and safety conditions in the

Nation’s underground and surface mines[,]” “regulation

of firearms[,]” and “in protecting the revenue against

various types of fraud[.]” Id. at 702 (internal citations

omitted). In fact, “[o]ver the past 45 years, the Court

has identified only four industries that have such a

history of government oversight that no reasonable

expectation of privacy could exist for a proprietor over

13

the stock of such an enterprise[.]” City of Los Angeles v.

Patel, 576 U.S. 409, 424 (2015) (internal quotations

omitted). “Moreover, the clear import of [this Court’s]

cases is that the closely regulated industry is the

exception.” Id.

“Second, the warrantless inspections must be

necessary to further the regulatory scheme.” Burger,

582 U.S. at 702–03. Lastly, “the statute’s inspection

program, in terms of the certainty and regularity of its

application, must provide a constitutionally adequate

substitute for a warrant” by “perform[ing] the two basic

functions of a warrant[.]” Id. at 703 (internal

quotations and brackets omitted). These functions

include providing notice to the owners and operators of

a commercial business that they are subject to the

inspection and that the regulatory scheme “limit[s] the

discretion of the inspecting officers.” Id. Notice requires

the regulatory scheme to “inform[] the operator of

a…business that inspections will be made on a regular

basis.” Id. at 711. The scheme must also put the

operator on notice by “set[ing] forth the scope of the

inspection and, accordingly, place the operator on

notice as to how to comply with the statute.” Id.

Looking at the entirety of the regulatory scheme,

inspections that are adequate substitutes for a warrant

have “time, place, and scope” restrictions on the

officers conducting the search. Id. An appropriately

tailored regulatory scheme could demand that searches

only be conducted “during the regular and usual

business hours.” Id. Absent such requirements, other

time and place limitations should be considered, such

as limitations on the number of searches on a

14

particular business during a period. Id. at 711, n.22.

However, a scheme has adequately limited officer

discretion “so long as the statute, as a whole, places

adequate limits upon the discretion of the inspecting

officers.” Id. Thus, if the parameters of when a search

can be made are wide, reasonableness will depend on

whether the scope is narrow in other ways, like which

industries and properties are subject to inspection, and

how narrowly the inspection is defined. Id. at 711–12.

A. THE EIGHTH CIRCUIT ERRED BY

HOLDING FMCSA’S REGULATORY

SCHEME IS AN ADEQUATE SUBSTITUTE

FOR THE WARRANT REQUIREMENT.

At issue in Mr. Le’s case is whether regulations

allowing for inspections of commercial vehicles satisfies

this Court’s conditions in Burger. Specifically, the

Federal Motor Carrier Safety Administration of the

United States Department of Transportation

(hereinafter “FMCSA”) promulgated a methodology, the

North American Standard Inspection (hereinafter

“NASI”), used by “safety inspectors to conduct safety

inspections” of commercial motor vehicles. 49 C.F.R.

§ 350.105. That methodology is not described in the

regulation itself, rather the regulation incorporates

“[t]he inspection criteria are developed by FMCSA in

conjunction with the Commercial Vehicle Safety

Alliance (CVSA), which is an association of States,

Canadian Provinces, and Mexico whose members agree

to adopt these standards for inspecting CMVs in their

jurisdiction.” Id. The CVSA has several levels of

inspections, but at issue in this case is a NASI Level II

search. Commercial Vehicle Safety Alliance, All

15

Inspection Levels, https://www.cvsa.org/inspections/allinspection-levels/ (2019). The CVSA describes a NASI

Level II inspection as follows:

An examination that includes each of the items

specified under the North American Standard

Level II Walk-Around Driver/Vehicle Inspection

Procedure. As a minimum, Level II Inspections

must include examination of: driver’s license;

Medical Examiner’s Certificate and Skill

Performance Evaluation (SPE) Certificate (if

applicable); alcohol and drugs; driver’s record of

duty status as required; hours of service; seat

belt; vehicle inspection report(s) (if applicable);

brake systems; cargo securement; coupling

devices; driveline/driveshaft; exhaust systems;

frames; fuel systems; lighting devices

(headlamps, tail lamps, stop lamps, turn signals

and lamps/flags on projecting loads); steering

mechanisms; suspensions; tires; van and opentop trailer bodies; wheels, rims and hubs;

windshield wipers; buses, motorcoaches,

passenger vans or other passenger-carrying

vehicles – emergency exits, electrical cables and

systems in engine and battery compartments,

seating, and HM/DG requirements, as

applicable. HM/DG required inspection items

will only be inspected by certified HM/DG and

cargo tank inspectors, as applicable. It is

contemplated that the walk-around

driver/vehicle inspection will include only those

items that can be inspected without physically

getting under the vehicle.

16

Commercial Vehicle Safety Alliance, All Inspection

Levels, Level II Inspection: Walk-Around

Driver/Vehicle Inspection,

https://www.cvsa.org/

inspections/all-inspection-levels/ (2019).

In short, a Level II inspection allows an inspector or

officer to view all paperwork and safety equipment,

load securement, and anything else that can be

observed without physically going beneath the vehicle.

Operating commercial vehicles is likely a closely or

pervasively regulated industry for the purpose of

applying and evaluating the reasonableness of the

scheme under Burger. In fact, all circuits that have

addressed the question have held that interstate

commercial transportation is a “closely and pervasively

regulated industry” under Burger. See, e.g., United

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

United States v. Fort, 248 F.3d 475, 480 (5th Cir. 2001);

United States v. Dominguez-Prieto, 923 F.2d 464, 468

(6th Cir.1991); Owner-Operator Independent Drivers

Ass., Inc. v. United States, 840 F.3d 879, 893 (7th Cir.

2016); United States v. Parker, 587 F.3d 871, 878–79

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

1195, 1202 (9th Cir. 2008); United States v. VasquezCastillo, 258 F.3d 1207, 1210 (10th Cir. 2001).

Second, warrantless inspections are likely necessary

to further the regulatory scheme of the FMSCA. The

Eighth Circuit’s holding is in line with other circuits on

this issue. See United States v. Maldonado, 356 F.3d

130, 136 (1st Cir. 2004) (“Fairly measured, the

interests justifying warrantless searches in the

interstate trucking industry are even greater than

those present in Burger (which involved the regulation

17

of junkyards) because of the speed with which

commercial vehicles move from place to place.”); Fort,

248 F.3d at 481; Dominguez-Prieto, 923 F.2d at 469;

Delgado, 545 F.3d at 1202; Vasquez-Castillo, 258 F.3d

at 1207.1

Instead, the Eighth Circuit has erred by holding

that FMCSA’s regulatory scheme satisfies the third

Burger factor. As written, the FMCSA regulation and

incorporated CVSA search parameters is not an

adequate substitute for the warrant requirement

because the notice is insufficient, and the scope of the

inspection goes beyond what is reasonable.

1

There is disagreement within the circuits of whether

suspicionless searches are necessary to further the regulatory

scheme. Compare United States v. Feliciana, 974 F.3d 519, 526–27

(2020) (holding that an FMCSA inspection performed after

conducting a baseless stop is outside the scope of a regulatory

search) with Fort, 348 F.3d at 481 (holding that random,

warrantless searches were necessary to further the regulatory

purpose because “Texas must be able to conduct driver and vehicle

safety inspections for problems that may not be apparent to

officers of patrol.”). However, Mr. Le does not argue that the Iowa

stop was suspicionless. In addition to a dark tint, Trooper Haas

testified that he stopped Mr. Le’s vehicle in part because it lacked

a United States Department of Transportation sticker. (“Pet. App.

42”).

18

a. FMCSA’S REGULATORY SCHEME

DOES NOT PROVIDE ADEQUATE

NOTICE

TO

OWNERS

OF

COMMERCIAL VEHICLES THAT THEY

WOULD BE SUBJECT TO UNLIMITED

INSPECTIONS.

The Eighth Circuit is an outlier in its determination

that the FMCSA regulations alone give adequate notice

to owners of commercial vehicles that they are subject

to random inspection. United States v. Knight, 306 F.3d

534, 535 (8th Cir. 2002) (“We agree with the district

court’s conclusion that the North American Standard

Inspection Program, see 49 C.F.R. § 350.105, which

was in force in Iowa, and pursuant to which the

inspection here was commenced, provides notice to

truck drivers of the possibility of a roadside

inspection….”).

In United States v. Maldonado, the First Circuit

noted that FMCSA regulations “themselves give ample

notice to interstate truckers that inspections will be

made on a regular basis[,]” but considered state

statutes in conjunction with its analysis. 356 F.3d at

136. Similarly, the Tenth Circuit concluded that state

law and the FMCSA regulations adequately gave notice

of warrantless searches, but failed to consider whether

FMCSA regulations alone satisfied the requirements.

Vasquez-Castillo, 258 F.3d at 1211–12. Other circuits

evaluating notice relied on state statutes or

regulations. See, e.g., Fort, 248 F.3d at 482); United

States v. Castelo, 415 F.3d 407 (5th Cir. 2005);

Dominguez-Prieto, 923 F.3d at 469; Owner-Operator

Independent Drivers Ass., Inc., 840 F.3d at 895–96;

19

Delgado, 545 F.3d 1195, 1203; U.S. v. Steed, 548 F.3d

961, 968 (11th Cir. 2008).

However, to provide adequate notice themselves,

the FMCSA regulations must not only provide notice to

business operators that they may be subject to

inspection, but also notice of the scope of the

inspection. The FMCSA regulations fail to satisfy this

requirement because the regulations do not provide

notice of when or how often inspections will be made.

The failure to specify the time limitations is in contrast

to the statute in Burger. Similarly, the FMCSA

regulations also fail to outline the potential number of

searches possible over a discreet period. This failure

renders the regulations themselves inadequate in

providing notice to operators of commercial vehicles.

b. NASI

LEVEL

II

INSPECTION

PARAMETERS DO NOT ADEQUATELY

LIMIT OFFICER DISCRETION.

As written, officers and others authorized to conduct

the inspections are given total discretion, absent state

law interference, of which commercial vehicles to

inspect as well as when, where, and how often to

inspect them. Instead of addressing this failure, some

circuits have written out the time and place

requirements of Burger entirely. Vasquez-Castillo, 258

F.3d at 1212 (“We agree with the Sixth Circuit,

however, that ‘[s]uch a limitation would, of course,

render the entire inspection scheme unworkable and

meaningless. Trucks operate twenty-four hours a day

and the officers must, necessarily, have the authority

to conduct these administrative inspections at any

time.’” (citing Dominguez-Prieto, 923 F.2d at 470).

20

This is an error because the time and place

requirements are necessary to a regulatory scheme’s

reasonableness under Burger. In Burger, the New York

statute at issue clearly established that inspections

were to be conducted only during normal business

hours and that they would be conducted at the place of

business. Burger, 482 U.S. at 711–12. Time and place

limitations on conducting regulatory searches of

commercial vehicles are not impossible to impose, nor

would they undermine the purpose of the regulatory

scheme. Further, while more thorough time and place

limitations or warrant requirements may frustrate the

government’s purpose, those frustrations are

surmountable with a different, more tailored warrant

requirement. See Marshall v. Barlow’s Inc., 436 U.S.

307, 316–21 (1978) (discussing potential regulatory

solutions to further the government’s interest of safe

workplaces that do not include creating an exception to

the warrant requirement).

At minimum, reading out Burger’s time and place

requirements means that NASI’s Level II inspection

parameters must be narrowly tailored to be considered

an adequate substitution for a warrant. At worst,

eliminating the time and place limitations does away

with a reasonableness requirement and impedes the

Fourth Amendment rights of owners of commercial

vehicles.

Given the FMCSA regulatory scheme and NASI’s

silence on time and place limitations of Level II

inspections, the inspection itself must be appropriately

limited to be constitutionally reasonable. Like the

statute at issue in Burger, the FMSCA regulations

21

limit the target of inspections—only allow for the

administrative searches of commercial vehicles. 49

C.F.R. § 350.105. However, neither NASI’s

methodology nor FMCSA’s regulation place any

limitation on an officer’s discretion regarding which

commercial vehicles they can inspect or whether any

suspicion is required or if random inspections are

authorized. Fort, 248 F.3d at 482 (“Although the

sections [of the statutes] do appear to limit the

discretion of an officer after the stop, they are subject

to criticism for failing to provide specific limitations on

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

(internal citations omitted). “[N]o federal appellate

court has done so, [but] several state courts have

struck down inspection statutes under Burger’s third

prong on these grounds.” Steed, 548 F.3d at 973–74

(collecting cases). The failure to address any

meaningful discretion is a failure that cannot be

squared with Burger’s requirement that the

administrative searches are an adequate replacement

for the warrant requirement.

Further, the FMCSA regulatory scheme fails to

reasonably limit the physical scope of the inspection. A

Level II inspection, according to the CVSA, at a

minimum, allows for the inspection of a lengthy list of

regulatory requirements. Commercial Vehicle Safety

Alliance, All Inspection Levels, Level II Inspection:

Walk-Around Driver/Vehicle Inspection,

https://www.cvsa.org/inspections/all-inspection-levels/

(2019). As written, the regulation only limits an officer

from physically getting underneath the vehicle for the

inspection. Id. An officer conducting a Level II

inspection can not only inspect paperwork and

22

licensing like in Burger, but can also enter into the

commercial vehicle, whether it be the cab or the trailer

itself, to conduct its search. A Level II inspection also

includes conducting an inspection of load securement,

which means that an officer can not only enter the

trailer of a commercial vehicle, but the officer can

inspect the cargo itself. Id.

Outside of the Eighth Circuit, the Tenth Circuit is

the only circuit to have directly addressed whether the

scope of an administrative search under the guise of a

Level II inspection reasonably allows an inspector to

enter to interior of a commercial vehicle. VasquezCastillo, 258 F.3d at 1212. The Tenth Circuit concluded

that inspectors were “authorized by state and federal

regulations to be in the trailer[.]” Id. Declining to hold

that a Level II search allows for searching cargo, the

Tenth Circuit found that an inspector’s entrance into

the trailer can properly give rise to probable cause

allowing for the search of the cargo. Id.

However, in Vasquez-Castillo, the court evaluated

FMCSA’s regulations alongside state laws and

regulations. Id. The state regulations granted more

access to the interior of commercial vehicles than

CVSA’s inspection: “To determine whether the vehicle

is safe, those in charge of the port of entry are

permitted to inspect the vehicle and its contents to

determine whether all laws and all rules and

regulations of the departments of New Mexico with

respect to public safety, health, welfare and comfort

have been fully complied with.” Id. (internal quotations

and brackets omitted). See also V-1 Oil Co. v. Means,

94 F.3d 1420, 1426 (10th Cir. 1996) (notice it “could

23

also reasonably be concluded that … [FMCSA’s

regulations], as modified by [state] regulations,

authorizes highway patrol officers and other

transportation department agents and employees ‘to

enter upon and perform inspections of motor carrier’s

vehicles in operation.’”).

Further, the Tenth and Eighth Circuits erred

because the Burger Court evaluated the statute itself

to determine whether the regulatory search is an

adequate replacement for a warrant, not the execution

of the search. The broad access a Level II inspection

gives inspectors should give this Court

pause—especially considering the breadth of the

industry of commercial trucking. While some circuits

have determined that the FMCSA regulations properly

couch the search to safety violations, this is still

excessively broad and allows inspectors nearly

unfettered access to a commercial vehicle. The failure

to properly limit the subject and scope of the inspection

may have been reasonable if the regulatory scheme had

adequately limited the time and place of the inspection,

but the FMCSA and NASI have placed almost no

limitations on where, what, and how and officer can

search a commercial vehicle. This failure is

incompatible with Burger and the Fourth Amendment

requirement that searches be reasonable.

24

II. THE DISTRICT COURT AND EIGHTH

CIRCUIT ERRED WHEN BOTH FOUND THAT

MR. LE’S FOURTH AMENDMENT RIGHT

AGAINST UNREASONABLE SEARCH AND

SEIZURE WAS NOT VIOLATED BY THE IOWA

SEARCH.

The Eighth Circuit held that Trooper Haas did not

need probable cause to enter into the trailer during the

Iowa stop. (“Pet. App. 10”). Based entirely upon the

testimony of Trooper Haas that “looking in a trailer for

safety equipment or to inspect cargo securement are all

proper aspects of a Level II inspection[,]” the Eighth

Circuit concluded that the entrance into the trailer was

reasonable. (“Pet. App. 11”). Without evaluating

whether a Level II inspection is a reasonable search or

whether it’s an adequate substitute for the warrant

requirement, the Eighth Circuit found the evidence

found after Trooper Haas’s entrance into the trailer

should not be suppressed.

However, a Level II search is not an adequate

substitution for a warrant, and Trooper Haas’s

entrance into Mr. Le’s trailer without probable cause

was a violation of Mr. Le’s constitutional right to be

free of unreasonable searches and seizures. Thus,

Mr. Le’s motion to suppress the evidence found as a

result of that search should have been granted, and the

evidence should have been suppressed.

25

CONCLUSION

For the foregoing reasons, this Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

Robert L. Sirianni, Jr., Esq.

Counsel of Record

BROWNSTONE, P.A.

P.O. Box 2047

Winter Park, Florida 32790-2047

(o) 407-388-1900

robertsirianni@brownstonelaw.com

Counsel for Petitioner

Dated: June 23, 2023.