     Case: 17-40299        Document: 00514827910          Page: 1     Date Filed: 02/08/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit

                                                                                     FILED
                                        No. 17-40299                          February 8, 2019
                                                                                Lyle W. Cayce
UNITED STATES OF AMERICA,                                                            Clerk


                Plaintiff - Appellee

v.

JENNIFER LYNN RICHMOND,

                Defendant - Appellant



                     Appeal from the United States District Court
                          for the Southern District of Texas


Before GRAVES and COSTA, Circuit Judges and BENNETT, District Judge.*
GREGG COSTA, Circuit Judge:
      During a traffic stop, a state trooper pushed his fingers against the
vehicle’s tire to try and confirm his suspicion that it contained more than just
air. We conclude that the brief physical examination of the tire was subject to
the Fourth Amendment under the recently revived trespass test for deciding
what is a search. The search was a reasonable one, however, because there




      *   District Judge for the Southern District of Texas, sitting by designation.
    Case: 17-40299    Document: 00514827910      Page: 2   Date Filed: 02/08/2019



                                  No. 17-40299
was probable cause to believe the loose tire posed a safety risk.
                                       I.
                                       A
      Texas State Trooper Manuel Gonzales was patrolling U.S. Highway 77
in south Texas when he saw a blue pickup Jennifer Richmond was driving. He
drove alongside the truck and saw that the tires were “shaking,” “wobbly,” and
“unbalanced.” He was concerned that the tires were a potential danger to the
public. After the truck drove across the fog line between the right lane and the
shoulder of the highway, Gonzales initiated a traffic stop. When the vehicle
came to a stop, Gonzales saw that one of the truck’s brake lights was broken.
He ran the license plate and learned the truck was registered two days earlier
in nearby Brownsville.
      When he approached the vehicle, Gonzales explained the reason for the
stop—that Richmond crossed the fog line—and also told her about the brake
light. Richmond apologized and, without prompting, stated that she was from
Arizona. She avoided eye contact, and Gonzales noticed that her hands were
“trembling,” her mouth was “dry,” and her lips had “a white coating.”
      In response to questioning, Richmond said that she was from Tucson but
was traveling to Brownsville, where she was moving with her husband.
Gonzales asked Richmond to exit the truck so that he could show her the
broken brake light. Richmond complied.
      As Gonzales walked to the rear of the truck, he looked at the passenger-
side rear tire and observed that the bolts “had been stripped as [if] they had
been taken off numerous times.”
      This is when the challenged conduct occurred. Gonzales pushed on the
tire with his hand. The resulting sound was not what “a normal tire with air”
would produce; instead there was a “solid thumping noise” that indicated
something besides air was inside. Gonzales, who already was concerned about
                                       2
    Case: 17-40299    Document: 00514827910     Page: 3   Date Filed: 02/08/2019



                                 No. 17-40299
the tires because he had seen them bouncing before the stop, became more
suspicious that they might contain drugs.
      After tapping the tire, Gonzales resumed asking Richmond about her
personal history and itinerary. She could not readily recall her age, date of
birth, or husband’s name. Richmond asserted that she was traveling to Dallas
to visit a friend, but did not know the friend’s phone number or address.
Stranger still, she said she intended to use Google to learn the friend’s address
and would return home if that search came up empty.
      When Gonzales went back to his car to check Richmond’s license and the
vehicle’s registration, he discovered that, contrary to her story about driving
from Arizona, the truck had entered Mexico the day before.       It had crossed
back into the United States only a few hours before the traffic stop.
      Gonzalez then obtained Richmond’s consent to search the truck. After
finding suspicious items inside the vehicle, Gonzales “let some air out [of the
tires] and [ ] smelled some kind of chemical cleaning odor coming out of them.”
At least one of the tires did not release air. Gonzales checked beneath the
truck and saw “fingerprints [ ] on the inside of . . . the rims” and an atypical
amount of weight placed on the tires to try to balance them. When he removed
the tires, they seemed unusually heavy and solid.
      Gonzales decided to take the truck to a local car dealership and have the
tires examined. Technicians at the dealership discovered secret compartments
that contained methamphetamine.
                                       B
      After being charged with trafficking that meth, Richmond tried to
suppress its discovery. She challenged the lawfulness of the stop and its
length.   The district court rejected those arguments, concluding that
reasonable suspicion of a traffic violation supported the stop and that
Richmond’s suspicious statements and demeanor raised sufficient concerns
                                       3
    Case: 17-40299      Document: 00514827910        Page: 4    Date Filed: 02/08/2019



                                    No. 17-40299
about drug trafficking to support extending the stop for the additional time
that resulted in her consenting to the search.
      After the motion was denied, Richmond entered a guilty plea that
allowed her to appeal the suppression ruling. Before sentencing, Richmond
filed an amended motion to suppress that argued for the first time that
Gonzales’s tap of her tire was a search not supported by probable cause. At
the sentencing hearing, the district court considered but rejected Richmond’s
amended motion because “as the law stands now, tapping tires is not a search.”
The district court noted that it would permit Richmond to appeal the tire tap
issue along with her original Fourth Amendment claims in light of her
conditional guilty plea.
                                           II.
      Richmond no longer challenges the initial stop or that there was
reasonable suspicion of drug trafficking to extend the stop until the point when
Gonzales physically examined the tire. And in not challenging events after
Gonzales learned that the tire likely contained more than just air, Richmond
apparently acknowledges that discovery justified further investigation into the
trafficking up until when she consented to a full search. 1
      So the tap of the tire is the focus of this appeal. Richmond contends that
it was a search within the meaning of the Fourth Amendment. That is the
case, she says, because touching the tire was a trespass which counts as a
search under recent Supreme Court cases. See Florida v. Jardines, 569 U.S.
1, 5 (2013); United States v. Jones, 565 U.S. 400, 404–07 & n.3 (2012).
      The government counters that we have previously held that similar law
enforcement conduct is not a search. In United States v. Muniz-Melchor, 894



      1 The government does not dispute Richmond’s premise that an unlawful search of the
tire would have tainted the investigation that followed, including her consent.
                                           4
     Case: 17-40299       Document: 00514827910         Page: 5     Date Filed: 02/08/2019



                                       No. 17-40299
F.2d 1430 (5th Cir. 1990), a border patrol agent used a pocket knife to tap the
side of a propane tank mounted in the bed of a pickup. Id. at 1432. We
acknowledged that the tapping “may have constituted a technical trespass,” id.
at 1435, but explained that Katz v. United States, 389 U.S. 347 (1967), had
“rejected the notion that what constitutes a trespass under various property
laws necessarily constitutes a search under the Fourth Amendment.” 894 F.2d
at 1434. Instead, the then-prevailing Katz test—which came not from the
majority opinion but from Justice Harlan’s concurrence—asked whether the
person challenging a search had a reasonable expectation of privacy in the item
being examined. 2        Id. (quoting Katz, 389 U.S. at 360–61 (Harlan, J.,
concurring)). The answer was “no” for the owner of the tapped propane tank
because he “surely . . . must have reasonably expected that someone, such as a
gasoline station attendant, might lean against the tank or touch it in some
manner.” Id at 1435.
       That expectation of contact is even greater for a vehicle’s tire as it is
routinely checked for air pressure.               So Muniz-Melcher binds us on the
“reasonable expectation of privacy” question.               Richmond did not have a
reasonable basis to believe that the tire would not be touched.
       But a precedent binds us only as far as it goes. See Brecht v. Abrahmson,
507 U.S. 619, 631 (1993) (explaining that an opinion is not binding on a
question it “never squarely addressed”).             Richmond contends that Muniz-
Melcher did not decide whether tapping part of a vehicle was a search under a




       2Katz’s focus on privacy marked a reversal in allowing electronic eavesdropping to be
treated as a search even when it does not involve physical penetration into an individual’s
property. 389 U.S. at 352–53 (overruling Goldman v. United States, 316 U.S. 129 (1942), and
Olmstead v. United States, 277 U.S. 438 (1928)); see also Orin Kerr, The Curious History of
Fourth Amendment Searches, 2012 SUP. CT. REV. 67, 85 (recognizing that pre-Katz cases had
“eventually focus[ed] on physical penetration into a protected space as the primary test for a
Fourth Amendment search” even if trespass was not the focus).
                                              5
     Case: 17-40299       Document: 00514827910         Page: 6    Date Filed: 02/08/2019



                                      No. 17-40299
trespass theory because, as the opinion recognized, at that time a physical
intrusion did not on its own constitute a search.
       We agree. Katz held that “[t]he premise that property interests control
the right of the Government to search and seize has been discredited.” 389
U.S. at 353 (quoting Warden v. Hayden, 387 U.S. 294, 304 (1967)). In the
decades that followed, a trespass did not automatically amount to a search.
See United States v. Karo, 468 U.S. 705, 713 (1984) (“[A]n actual trespass is
neither necessary nor sufficient to establish a constitutional violation.”); Oliver
v. United States, 466 U.S. 170, 183–84 (1984) (holding that narcotics agent
searching for marijuana in the open fields of a farm was not a search even
though it was a trespass). But in 2012, United States v. Jones revived the
property approach that most, including our court, thought Katz had
jettisoned. 3 565 U.S. at 400. In explaining why a search occurred when law
enforcement placed a GPS tracking device on the undercarriage of a car, the
Court relied on “the common-law trespassory test,” which it treated as a
separate basis for finding a search alongside the Katz “reasonable expectation
of privacy” test. 565 U.S. at 409.
       Lower courts recognized Jones as a sea change. See, e.g., United States
v. Ackerman, 831 F.3d 1292, 1307 (10th Cir. 2016) (Gorsuch, J.) (explaining
that that there is now “reason to wonder” about the vitality of a 1984 Supreme
Court decision after “Jones held that the Katz formula is but one way to
determine if a . . . ‘search’ has taken place”); United States v. Sweeney, 821 F.3d
893, 899 (7th Cir. 2016) (“In recent years, the Supreme Court has revived a
‘property-based approach’ to identify unconstitutional searches.”); United


       3A prominent Fourth Amendment scholar contends that Jones did not so much revive
the property-based approach as invent it. Kerr, supra note 2, at 68 (reaching “the surprising
conclusion that no trespass test was used in the pre-Katz era”). That historical account is
even more problematic for the government’s view that a trespass test has always governed
Fourth Amendment law, including when Muniz-Melcher was decided.
                                             6
     Case: 17-40299       Document: 00514827910         Page: 7    Date Filed: 02/08/2019



                                      No. 17-40299
States v. Katzin, 769 F.3d 163, 181 (3d Cir. 2014) (en banc) (explaining that
“Jones fundamentally altered [the] legal landscape by reviving—after a forty-
five year hibernation—the Supreme Court’s trespass theory”). So did Fourth
Amendment scholars. 4 The leading treatise on searches had to add a new
chapter to its section on “Protected Areas and Interests.” The title of the
addition? “Trespass as an alternate theory.” Compare Wayne R. LaFave et
al., 1 SEARCH & SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 2.1(e) (5th
ed. 2012) (explaining that although Katz “seemed to sound the death knell for
the pre-Katz ‘trespass’ approach,” the “doctrine re-emerged as an alternate
theory to the Katz expectation-of-privacy test”), with id. § 2.1 (4th ed. 2004) (no
subsection on trespass). The most colorful description of Jones’s revival of the
trespass approach was the comment that “[i]t turns out that approach was not
dead, just taking a really long nap.” John P. Elwood & Eric A. White, What
Were They Thinking: The Supreme Court in Revue, October Term 2011, 15
GREEN BAG 2D 405, 409 (2012).
       Jones thus requires us to consider the trespass test that Muniz-Melchor
did not think was sufficient to establish a search but now is. Even under Jones,
however, a trespass does not get a defendant all the way to characterizing
police conduct as a search. Jones, 565 U.S. at 408 n.5. Consistent with the
meaning of “search,” a trespass “must be conjoined” with “an attempt to find
something or obtain information.”           Id.; see also id. at 404 (describing the


       4 The notion that the trespass test had remained part of the post-Katz Fourth
Amendment inquiry “came as a surprise to every student and scholar of the Fourth
Amendment.” Kerr, supra note 2, at 68 n.5. The titles of numerous post-Jones articles reflect
this view that the decision restored a property-based approach that had been dormant since
Katz. See, e.g., Arnold H. Loewy, United States v. Jones: Return To Trespass-Good News Or
Bad, 82 MISS. L.J. 879 (2013); Nancy Foster, Back to the Future: United States v. Jones
Resuscitates Property Law Concepts in Fourth American Jurisprudence, 42 U. BALT. L. REV.
445 (2013); Herbert W. Titus & William J. Olson, United States v. Jones, Reviving the
Property Foundation of the Fourth Amendment, 3 CASE W. RESERVE L.J. TECH. & INTERNET
243 (2012).
                                             7
     Case: 17-40299        Document: 00514827910          Page: 8     Date Filed: 02/08/2019



                                        No. 17-40299
government’s conduct as “physically occup[ying] private property for the
purpose of obtaining information”).           This prevents a mere physical touching,
such as when an officer leans on the door of a car while questioning its driver,
from being a search. Gonzales’s tapping of the tire was not that type of
incidental conduct. He touched the tire in order to help find out what was
inside. That satisfies the second Jones requirement.
       So whether the touching was a search comes down to whether it was a
trespass. Muniz-Melchor thought tapping a tank “may have constituted a
technical trespass,” but did not decide if that was the case. 894 F.2d at 1435.
Its “technical” qualifier may have come from the absence of damage to the tank,
which modern tort law requires for trespass to chattel. See Jones, 565 U.S. at
419 & n.2 (Alito, J., concurring) (quoting W. Keeton et al., PROSSER & KEETON
ON LAW OF TORTS       § 14, at 87 (5th ed. 1984)). But in concluding that attaching
a GPS to the exterior of a vehicle was a trespass, Jones relied on its reading of
the common law of trespass as it existed in 1791 when the Fourth Amendment
was ratified. 5 Id. at 404–05 (tying the Fourth Amendment to common law
trespass and concluding that a “physical intrusion would have been considered
a ‘search’ within the meaning of the Fourth Amendment when it was adopted)
(citing Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765)); id. at 419 & n.2
(Alito, J., concurring) (characterizing the common law for trespass to chattels
as requiring only a “violation of ‘the dignitary interest in the inviolability of
chattels” (quoting W. Keeton et al., PROSSER & KEETON ON LAW OF TORTS § 14,
at 87 (5th ed. 1984)). In terms of the physical intrusion, we see no difference




       5 Professor Kerr also questions whether Jones got history right on this point. He
observes that installing a device on the exterior of a car “is not an obvious case for trespass,”
as a “trespass usually implies some sort of invasion into property” beyond just touching it.
Kerr, supra note 2, at 91.
                                               8
     Case: 17-40299      Document: 00514827910        Page: 9     Date Filed: 02/08/2019



                                     No. 17-40299
between the Jones device touching the car and an officer touching the tire. 6
Nor, apparently, does the government as it does not dispute that the tire tap
was a trespass. Of course, the GPS device remained attached for a longer
period and gathered a lot more information compared to a tire tap, but Jones
found a trespass because of the physical contact the device made with the car
at the moment it was affixed.           Jones, 565 U.S. at 404 (focusing on the
“installation of a GPS device”).         Indeed, Justice Alito’s opinion in Jones
critiques the majority’s trespass approach because it “largely disregards what
is really important (the use of a GPS for the purpose of long-term tracking) and
instead attaches great significance to something that most would view as
relatively minor (attaching to the bottom of a car a small, light object that does
not interfere in any way with the car’s operation).” Id. at 424–25 (Alito, J.,
concurring). The also “relatively minor” act of tapping tires is thus a trespass.
Because that trespass occurred to learn what was inside the tires, it qualifies
as a search.
      This trespass analysis might seem simplistic. But proponents of the
property-based approach view its bright line as a virtue over the less
predictable expectation-of-privacy inquiry. 565 U.S. at 412–13 (noting the line-
drawing problems that would arise from applying the Katz test to the GPS
tracking device); Erica Goldberg, How United States v. Jones Can Restore Our
Faith in the Fourth Amendment, 110 MICH. L. REV. FIRST IMPRESSIONS 62, 68–
69 (2011) (suggesting that a property-based test provides a “clearer, cleaner



      6  Jones recognized this similarity in addressing Cardwell v. Jones, 417 U.S. 583
(1974), a case that found no Fourth Amendment violation when law enforcement inspected
the tread of a tire and collected paint scrapings from the exterior of a car. In Jones, the
government argued that Cardwell supported its position that installation of the GPS tracker
was not a search. The Court disagreed on the ground that the plurality opinion in Cardwell
was “unclear” about whether it ruled that way because there was no search or because the
search was a reasonable one supported by probable cause. Jones, 565 U.S. at n.7 (quoting
Cardwell, 417 U.S. at 591–92).
                                            9
    Case: 17-40299       Document: 00514827910         Page: 10     Date Filed: 02/08/2019



                                      No. 17-40299
metric of when the Fourth Amendment is implicated”). It may also seem
troubling that the brief touching of a tire reveals far less information than
other lawful conduct, like a dog sniff, that is not considered a search. See
Illinois v. Cabelles, 543 U.S. 405, 409 (2005). That critique, however, views the
search question through the invasion-of-privacy mindset. Rightly or wrongly,
Jones held that a trespassory search implicates the Fourth Amendment even
if it does not offend privacy interests. Under that property-based approach,
Gonzales’s tapping of the tire was a search regardless of how insignificant it
might seem.
                                            III.
       Although the limited nature of the intrusion does not affect whether the
physical examination of the tire is deemed a search, that is only the
preliminary Fourth Amendment question. The ultimate question is whether
the government’s conduct was reasonable. Heien v. North Carolina, 135 S. Ct.
530, 536 (2014). And in that analysis the extent of the intrusion on an
individual’s Fourth Amendment interests is relevant. See, e.g., United States
v. Knights, 534 U.S. 112, 118–19 (2001) (explaining that the reasonableness of
a search depends on balancing the governmental interest in the search against
the degree of the intrusion on the individual). 7
       The government first argues that a search of the tire complied with the
Fourth Amendment because Gonzales had probable cause to believe drugs
were inside. Probable cause to believe a vehicle contains contraband allows a
warrantless search because of the car’s mobility. Maryland v. Dyson, 527 U.S.
465, 467 (1999).


       7 The district court held that Gonzalez did not search the tire, but we may consider
the reasonableness of the search because we may affirm the denial of a suppression ruling
on any basis supported by the record. United States v. El-Mezain, 664 F.3d 467, 540 (5th Cir.
2011).

                                             10
    Case: 17-40299    Document: 00514827910      Page: 11   Date Filed: 02/08/2019



                                  No. 17-40299
      Did that probable cause exist before Gonzales tapped the tire? The
information Gonzales had by that time—the wobbly tires, stripped bolts,
Richmond’s nervousness, and the new registration on an older vehicle stopped
in a trafficking corridor—certainly gave him the reasonable suspicion of drug
trafficking needed to justify extending the traffic stop to investigate further.
United States v. Brigham, 382 F.3d 500, 507 (5th Cir. 2004) (en banc). But
probable cause is a higher rung on the probability ladder than reasonable
suspicion. See Navarette v. California, 572 U.S. 393, 397 (2014) (explaining
that the evidence required for reasonable suspicion “is obviously less than is
necessary for probable cause” (citation omitted)). Demonstrating the greater
showing required for probable cause, evidence rising to that level would be
enough to have supported an arrest of Richmond for drug trafficking or a grand
jury indictment charging that crime. See United States v. Watson, 423 U.S.
411 (1976) (holding that probable cause supports warrantless arrest of a
suspect); U.S. CONST. amend. V. We doubt the information Gonzales had prior
to tapping the tire rose to that level.
      But if probable cause of drug trafficking did not yet exist, the government
argues that the physical inspection of the tire served another interest:
“ensuring that vehicles on the road are operated safely and responsibly.”
Indeed, the wobbly tires, the truck veering outside its lane, and the stripped
bolts gave a reasonable officer probable cause to believe that the tire posed a
safety risk. TEX. TRANSP. CODE § 547.004(a) (making it a misdemeanor to
operate a vehicle that is “unsafe so as to endanger a person”). On that basis,
the tapping of the tire was justified. It does not matter that Gonzales also




                                          11
    Case: 17-40299       Document: 00514827910         Page: 12     Date Filed: 02/08/2019



                                      No. 17-40299
wanted to find out if drugs were in the tire. See Whren v. United States, 517
U.S. 806, 813 (1996). 8
       Pulling back from the discrete Fourth Amendment doctrines we have
examined, finding no constitutional violation makes sense in terms of the
overall Fourth Amendment balance. The government’s interest in making sure
that a loose tire does not pose a safety threat strongly outweighs the
intrusiveness of an officer’s tapping the tire for a second or two.
                                           ***
       The judgement of the district court is AFFIRMED.




       8 Richmond argues that public safety must be an officer’s sole motivation when that
is the justification for the search, citing the pre-Whren cases of South Dakota v. Opperman,
428 U.S. 364 (1976), and Cady v. Dombrowski, 413 U.S. 433 (1973). Both of those cases
involved searches conducted as part of routine police procedures. Opperman, 482 U.S. at 369
(postimpoundment inventory search); Dombrowski, 413 U.S. at 436 (post-tow search of trunk
consistent with department policy to retrieve officer’s weapon). Whatever role subjective
motivation plays in the context of regulatory searches, Whren says that intent does not
matter for searches based on individualized suspicion. See Hunsberger v. Wood, 570 F.3d
546, 554 (4th Cir. 2009) (making this distinction between Whren and Dombrowski); cf.
Michigan v. Fisher, 558 U.S. 45, 47 (2009) (explaining that the “emergency aid” exception to
the Fourth Amendment “does not depend on the officer’s subjective intent”). Suspicion
particular to Richmond—probable cause to believe the loose tires on her pickup posed a safety
risk—is the basis for finding the tap of the tire reasonable.
                                             12
