                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 02-1169
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               * Appeal from the United States
                                       * District Court for the Northern
Michael James Knight,                  * District of Iowa.
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: June 12, 2002

                                 Filed: October 1, 2002
                                  ___________

Before MORRIS SHEPPARD ARNOLD, HEANEY, and MURPHY, Circuit Judges.
                          ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       After Trooper Don McGlaughlin stopped Michael Knight's truck for having a
radar detector, the officer began a so-called North American Standard Level III
inspection. See Commercial Vehicle Safety Alliance, Truck Inspection Program,
North American Standard Level III Driver-Only Inspection Procedure (1996); see
also 49 C.F.R. § 350.115. A short while into that inspection, he asked permission to
search Mr. Knight's briefcase, but Mr. Knight refused. Trooper McGlaughlin
nonetheless searched the briefcase and discovered a handgun. When further
investigation revealed that Mr. Knight was a felon, he was indicted by a grand jury
on a charge of being a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1).

       Mr. Knight moved to suppress the evidence discovered in his briefcase on the
ground that Trooper McGlaughlin exceeded the scope of the regulatory search
authorized by law and thus violated his fourth amendment rights in seizing the
briefcase. After the district court denied Mr. Knight's motion, he entered a
conditional guilty plea under Fed. R. Crim. P. 11(a)(2) and appealed. We reverse the
district court's denial of the motion to suppress and remand for further proceedings.

                                           I.
        In New York v. Burger, 482 U.S. 691, 702-03 (1987), the Supreme Court held
a warrantless search of closely regulated industries is constitutional if, inter alia, the
rules governing the search offer an adequate substitute for the fourth amendment
warrant requirement. In order to do that, the rules must do two things: they must
provide notice to owners that their property may be searched for a specific purpose,
and they "must limit the discretion of the inspecting officers." Id. at 703. 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 and limits officer discretion. The question before us,
however, is whether Trooper McGlaughlin's search of the defendant's briefcase was
in compliance with the North American Standard Inspection Program. We believe
that it was not.

      As an initial matter, we note that Trooper McGlaughlin informed Mr. Knight
that he was going to conduct a so-called Level III, driver-only inspection. The
regulatory guidelines for such an inspection authorize an officer to "[c]ollect the
following documents: driver's license; medical examiner's certificate (and waiver, if
applicable); records of duty status; driver's daily vehicle inspection report;

                                           -2-
documentation of periodic inspections; shipping papers and/or bills of lading, and
receipts or other documents that may be used to verify the log." North American
Standard Level III Driver-Only Inspection Procedure, supra; see 49 C.F.R.
§ 350.105. The guidelines also authorize an officer to "[c]heck the cab for possible
illegal presence of alcohol, drugs, weapons or other contraband." North American
Standard Level III Driver-Only Inspection Procedure, supra; see 49 C.F.R.
§ 350.105. The relevant guidelines, however, do not permit the search of personal
belongings, and we believe that they could not constitutionally do so, because in the
context they would not sufficiently limit officer discretion as Burger requires. See
Burger, 483 U.S. at 702-03. In any event, Trooper McGlaughlin's search of
Mr. Knight's briefcase quite obviously exceeded the authority vested in him by the
North American Standard Inspection Program, and thus it exceeded the scope of a
constitutionally permissible regulatory search.

       The government argues, however, that the Supreme Court has held that an
officer who has the authority to search a vehicle may search all containers in it that
are capable of concealing the object of the search. See Wyoming v. Houghton, 526
U.S. 295, 302 (1999); see also United States v. Ross, 456 U.S. 798, 820-21 (1982) .
It maintains that since the North American Standard Inspection Program authorized
an officer to "[c]heck the cab," it follows that the officer was permitted to search all
containers in the vehicle capable of concealing the object of the search. A briefcase
is certainly capable of concealing papers, contraband, or weapons; hence, the
argument runs, Trooper McGlaughlin's search of the briefcase was justified.

      We believe, however, that the Supreme Court has held that an officer may
search all containers in a vehicle capable of concealing the object of the search only
when he or she has probable cause to search the vehicle. See generally Houghton,
526 U.S. 295; Ross, 456 U.S. 798; see also United States v. Sample, 136 F.3d 562,
564 (8th Cir. 1998). The rationale for this rule is that the probable cause that justifies
the search of a vehicle also justifies the search of the containers within the vehicle

                                           -3-
that could conceal the object of the search. See Ross, 456 U.S. at 824. For example,
if suspicion of contraband justifies searching a lawfully stopped vehicle then that very
same suspicion justifies searching a container in the vehicle that is capable of
containing contraband. But in the case at bar, the trooper's authority to search
Mr. Knight's truck was based not on probable cause, but on a regulatory statute. The
regulatory statute serves the function of a warrant because it explicitly limits the
"time, place, and scope" of the authorized search as the fourth amendment requires,
Burger, 483 U.S. at 703 (internal quotations omitted), but it does not provide
probable cause. Since Trooper McGlaughlin did not have probable cause to search
Mr. Knight's truck, we cannot hold, as a matter of law, that Trooper McGlaughlin had
probable cause to search Mr. Knight's briefcase.

       Nor do we find convincing the government's alternative argument that Trooper
McGlaughlin in fact had probable cause to search Mr. Knight's briefcase. The
government asserts that the fact that the briefcase was sitting at a 45-degree angle on
a pile of clothes behind the driver's seat of the cab gave rise to an inference that
Mr. Knight had moved the briefcase after Trooper McGlaughlin had stopped the
truck. This, they contend, raised the further inference that the briefcase contained
something illegal or, at the very least, evidence of a legal violation. We believe,
however, that these inferences are too weak to support a finding of probable cause.
In other words, we do not believe that an "objectively reasonable police officer,"
Ornelas v. United States, 517 U.S. 690, 696 (1996), could infer from the position of
the briefcase alone that there was a "fair probability" that it contained anything illegal
or evidence of illegal activity, United States v. Chrobak, 289 F.3d 1043, 1046 (8th
Cir. 2002) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).

       The government also points out that Mr. Knight's log inaccurately reported his
stops for fuel as off-duty activity and that, contrary to regulations, the log did not
reveal what the truck was carrying. But we fail to see how these facts in any way
imply that Mr. Knight's briefcase contained documents that would confirm a

                                           -4-
falsification of the log books, especially considering that there is no evidence
suggesting that inaccuracies in the log were attempts at fraud, as opposed to honest
mistakes and omissions. As Judge Murphy notes in her dissent, Trooper
McGlaughlin testified that his suspicions were aroused when Mr. Knight said that he
did not have any toll or fuel receipts, but the magistrate judge did not find as a fact
that Mr. Knight made such a statement. Even if we were inclined to think (and we
are not) that if we added that statement to the factual mix the trooper would have had
probable cause to search the briefcase, we cannot simply accept the government's
testimony as true on a matter that the defendant has not admitted. We therefore think
that the trooper's alleged question and Mr. Knight's alleged answer to it are not
matters that are properly before us for our consideration.

       If the defendant had made suspicious or false statements in response to
inquiries about the briefcase, or if Trooper McGlaughlin had observed the defendant
moving the briefcase, then there might have been probable cause to search it. But the
record is devoid of any such evidence. In short, on this record Trooper McGlaughlin
would have been justified, in our judgment, in concluding that Mr. Knight had
improper documents and therefore was in violation of regulations concerning motor
safety; but the officer had no reasonable basis for searching Mr. Knight's personal
belongings.

         We observe, finally, that the Supreme Court has warned against administrative
stops becoming pretexts for "crime control," City of Indianapolis v. Edmond,
531 U.S. 32, 40 (2000). We believe that, as a general matter, rummaging through a
person's belongings is more likely to serve the purpose of "crime control" than the
enforcement of a regulatory scheme. Such a search is, in our judgment, justified only
if it is explicitly authorized by a valid warrant or if it is supported by probable cause.
Because Trooper McGlaughlin's search was neither authorized by warrant nor
supported by probable cause, it violated the defendant's fourth amendment rights.



                                           -5-
                                        II.
      For the reasons discussed, we reverse the district court's decision to deny the
motion to suppress and remand to the court for further proceedings not inconsistent
with this opinion.

MURPHY, Circuit Judge, dissenting.

       I respectfully dissent because the district court did not err by admitting
evidence that Michael Knight, a convicted felon,1 had a loaded .380 handgun next to
him when he was stopped on an interstate highway for a traffic violation.2 Trooper
Don McGlaughlin was authorized to conduct a Level III safety inspection of Knight's
truck, and what he learned during the course of that inspection gave him reason to
believe that a briefcase he saw by the driver seat contained evidence that Knight was
driving in violation of safety laws. He therefore did not exceed the permissible scope
of a regulatory search of a commercial motor vehicle by asking him to open the
briefcase and unexpectedly finding a loaded gun.

       Trooper McGlaughlin is a 31 year veteran of the Iowa State Patrol and belongs
to a unit specially trained to conduct Level III inspections. An officer performing
this type of inspection is authorized to collect documents to check whether a truck is
properly registered and in good working order, whether the driver has proper shipping
papers and bills of lading for his load, and whether the driver keeps an accurate daily
log. The daily log has a safety purpose and is used to check whether a driver is

      1
        Knight had three prior felonies: a 1991 conviction for conspiracy to commit
murder in the first degree, and 1985 convictions for use of a .45 caliber pistol to
commit a second degree assault and for intentionally or knowingly causing bodily
injury.
      2
       Use of a radar detector in a commercial motor vehicle, in violation of Federal
Motor Carrier Safety Administration regulations and Iowa law. See 49 C.F.R.
§ 392.71(a); Iowa Code § 321.449; Iowa Administrative Code § 761-520.1(1)(a).

                                         -6-
abiding by federally mandated rules limiting the number of hours a driver can operate
a commercial motor vehicle without rest. See 49 C.F.R. § 395.1-15. McGlaughlin
conducts approximately 300 such inspections each year, and his experience and
training have taught him how truckers keep track of their fuel receipts and documents
and how some of them evade federal safety regulations.

       The safety regulations are extensive and cover all commercial motor vehicles,
which are defined as vehicles weighting 10,001 pounds or more. See 49 C.F.R.
§ 350.105. Commercial truck drivers may only drive seventy hours in any eight day
period, and they must take an eight hour break after being on duty for fifteen hours.
See Id. § 395.3(a)(1)-(2). After eight consecutive hours off duty, a driver can return
to the road and drive up to ten hours. Every driver is required to record his duty
status for each twenty four hour period in accordance with federal regulations. See
Id. § 395.8. If a driver has exceeded the maximum hours permitted or fails to have
a current record showing his duty status, the driver can be taken out of service for the
requisite rest period. See Id. § 395.13. If a driver presents a false log during a Level
III inspection, he is to be taken out of service for eight consecutive hours. See
Commercial Vehicle Safety Alliance, North American Standard Level III Driver-Only
Inspection Procedure, Appendix A, Part I: Northern American Standard Driver Out-
of-Service Criteria (1996), see also 49 C.F.R. § 350.105. McGlaughlin testified that
the Iowa State Patrol policy requires that a trooper obtain at least two documents
showing a logbook has been falsified before taking a driver out of service.

      When McGlaughin approached Knight’s truck, he saw that the passenger door
had already been opened for him and he climbed up onto the step of the cab to talk
with Knight. From this vantage point McGlaughlin had a clear view into the cab, and
Knight told him he was familiar with a Level III inspection from past experience.
Soon after McGlaughlin began his inspection, he noticed several irregularities in
Knight's logbook. He observed that Knight had designated a fuel stop in North Platte,
Nebraska as off duty time even though the regulations require that fuel stops be

                                          -7-
recorded as on duty time. See 49 C.F.R. § 395.2. McGlaughlin also noticed that
Knight's logbook showed several stops in the preceding hours. Based on his
experience with commercial trucking, McGlaughlin knew that it would be unusual
for a driver to make so many short stops. McGlaughlin also saw that Knight had
logged much off duty time in the past few days and that he had failed to put the lading
and trip numbers in the "Remarks" section of his logbook as required by the
regulations. See Id. § 395.8(d)(11). These irregularities in the logbook suggested to
McGlaughlin that Knight was lying about his off duty time and could be in violation
of federal safety laws.

        As part of the Level III inspection, a driver is expected to provide receipts and
other documents that may be used to verify the driver’s logbook. See North
American Standard Level III Driver-Only Inspection Procedure, supra; see also 49
C.F.R. § 350.105. McGlaughlin testified that when he asked if Knight had any fuel
or toll receipts, he said he did not. This caused McGlaughlin to suspect that Knight
was concealing documents that would reveal his actual driving pattern over the
preceding days. A driver without sufficient rest presents a safety hazard on the
highway, and he and his vehicle can be pulled out of service. See 49 C.F.R. § 395.13.
In order to take a driver and his shipment off the road for inaccuracies in a logbook,
an officer needs to ascertain that there are false entries relevant to whether the driver
can safely continue to operate his truck on that day. See North American Standard
Level III Driver-Only Inspection Procedure, supra; see also 49 C.F.R. § 350.105.
McGlaughlin testified at the hearing before the magistrate judge that truckers often
conceal an alternate logbook, receipts, and other supporting documents such as toll
booth tickets within the cab of the truck.3


      3
       McGlaughlin was the only witness at the hearing where he was cross
examined by defense counsel. Before recommending that the motion to suppress be
denied, the magistrate judge found that McGlaughlin wanted to see receipts and other
papers in order to test the validity of the log.

                                          -8-
        At this point McGlaughlin noticed a briefcase just behind the driver seat, lying
on top of a pile of dirty clothes at a 45 degree angle to Knight’s seat. It appeared to
McGlaughlin that the briefcase could not have remained in such a position without
falling off the clothes pile if the truck had been moving. He reasonably concluded
that Knight must have pulled the briefcase from the passenger seat when he was
ordered to pull over. McGlaughlin testified that he had learned from his experience
that truck drivers often use briefcases for their records and often keep them on the
passenger seat, and the magistrate judge found that truckers “most commonly keep
them on the passenger’s seat”. Because the briefcase appeared to have been moved
into its unusual position behind Knight’s seat after the truck came to a stop,
McGlaughlin suspected that it contained incriminating documents.

       The majority states that it was not objectively reasonable for the trooper "to
infer from the position of the briefcase alone that there was a 'fair probability' that it
contained anything illegal or evidence of illegal activity," (emphasis added). The
record shows, however, that there was additional evidence to lead an objectively
reasonable officer to such an inference. Knight had irregularities in his logbook, was
evasive during the inspection, and could not produce receipts or other relevant
documents. This created a reasonable suspicion in McGlaughlin’s mind that Knight
was violating safety laws. If records were to substantiate the suspicion that Knight
was driving without the required rest period, he could be pulled off the highway as
a safety hazard. McGlaughlin knew that truck drivers often keep receipts in
briefcases, and the peculiar position of Knight's briefcase suggested that he had
moved it to avoid attention to it. McGlaughlin assumed incorrectly, but not
unreasonably, that that was because Knight was concealing requested documents in
it. At the point at which McGlaughlin asked to search the briefcase, there was more
than a “fair probability” that it contained evidence of illegal activity.

      In New York v. Burger, 482 U.S. 691 (1987), the Supreme Court recognized
a diminished expectation of privacy in closely regulated industries. Because of this,

                                           -9-
“the warrant and probable-cause requirements, which fulfill the traditional Fourth
Amendment standard of reasonableness for a government search, have lessened
application….” Id. at 702 (citation omitted). Commercial trucking is a closely
regulated industry subject to regulatory searches, see United States v. Fort, 248 F.3d
475, 480 (5th Cir. 2001); United States v. Burch, 153 F.3d 1140, 1141-42 (10th Cir.
1998); United States v. Dominguez-Prieto, 923 F.2d 464, 468 (6th Cir. 1991), and
commercial truck drivers are aware that the regulatory scheme lessens expectations
of privacy in their driving schedule and in their related records. See 49 C.F.R.
§ 395.8. After Knight was found to have violated some regulations and after he failed
to produce receipts to clarify apparent irregularities in his logbook, his reasonable
expectation of privacy in the contents of the briefcase was diminished. See U.S. v.
Biswell, 406 U.S. 311 (1972); U.S. v. Seslar, 996 F.2d 1058, 1061 (10th Cir. 1993)
(“persons doing business in closely regulated industries have a significantly reduced
expectation of privacy”); State v. A-1 Disposal, 415 N.W.2d 595, 599 (Ia. 1987)
(“When the driver of a motor carrier operates on a public highway per se he does so
with the knowledge that his property will be inspected from time to time.”).

       The "principal components of a determination of reasonable suspicion or
probable cause [are] the events which occurred leading up to the … search…."
Ornelas v. United States, 517 U.S. 690, 696 (1996). Here, there were a number of
suspicious facts from which an objectively reasonable highway patrol officer could
infer that the briefcase contained evidence of illegal activity. McGlaughlin had
reason to focus on it so I respectfully disagree with the suggestion that he was
rummaging through Knight’s personal belongings. The constitutionality of a
regulatory search is tested by balancing "the need to search against the invasion
which the search entails." Camara v. Municipal Court, 387 U.S. 523, 537 (1967). As
a commercial truck driver, Knight had less expectation of privacy in respect to his
vehicle, his records, and his route than the average driver. The search of his closed
briefcase must be balanced against the interest of the public in highway safety and
Trooper McGlaughlin’s reasonable suspicion that Knight was driving in violation of

                                        -10-
safety laws and that substantiating evidence would be located in the briefcase. I
would therefore affirm the district court.

      A true copy.

            Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                      -11-
