                                                                                            12/20/2016


                                          DA 15-0478
                                                                                        Case Number: DA 15-0478

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2016 MT 332



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

JEFFREY DAVID BEAVER,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Ninth Judicial District,
                        In and For the County of Teton, Cause No. DC-15-007
                        Honorable Robert G. Olson, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Chad Wright, Chief Appellate Defender, Moses Okeyo, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss,
                        Assistant Attorney General, Helena, Montana

                        Joe Coble, Teton County Attorney, Choteau, Montana



                                                   Submitted on Briefs: November 16, 2016

                                                               Decided: December 20, 2016


Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1    Jeffrey David Beaver appeals from the District Court’s Judgment & Sentence filed

July 29, 2015, convicting him of aggravated driving under the influence, second offense.

We affirm.

¶2    We restate the issue on appeal as follows:

      Whether the District Court erred in upholding the stop and the ensuing
      warrantless inspection of Beaver’s truck by an officer of the Montana Department
      of Transportation.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3    On August 12, 2014, an officer of the Motor Carrier Services Division, Montana

Department of Transportation (MDT), stopped Beaver’s commercial freightliner vehicle

in Teton County. After making the stop the officer detected the odor of alcohol and

believed that Beaver was driving under the influence. He used a portable breath test

(PBT) device and it showed that Beaver’s breath alcohol concentration (BAC) was over

0.08. He also found alcoholic beverage bottles and cans in the vehicle.

¶4    The MDT officer called the Montana State Highway Patrol for assistance. A

highway patrolman arrived and conducted field sobriety tests that indicated that Beaver

could be impaired. A second PBT administered by the patrolman showed a BAC over

0.160. Beaver refused a blood test, and the patrolman obtained a search warrant for a

blood sample. That sample registered a BAC of 0.239. The State charged Beaver with

driving under the influence and several other misdemeanor offenses.




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¶5     The Teton County Justice Court conducted a bench trial in January 2015. At the

conclusion of the trial the Justice of the Peace found Beaver guilty of aggravated driving

under the influence with a BAC of 0.239 under § 61-8-465, MCA. The Justice of the

Peace imposed a fine and a sentence of a year in the county jail with all but seven days

suspended.

¶6     Beaver appealed to District Court and moved to suppress the evidence gathered

after the MDT officer stopped his vehicle. The District Court denied the motion, citing a

prior order of the Teton County District Court in State v. Valline, Cause No. DA-10-021.

Beaver entered a guilty plea to the DUI charge, reserving the right to appeal denial of the

motion to suppress.1 The District Court sentenced Beaver to a fine and to one year in the

Teton County Jail with all but seven days suspended.

¶7     Beaver appeals.

                               STANDARD OF REVIEW

¶8     This Court reviews a district court’s decision on a motion to suppress to determine

whether the findings of fact meet the clearly erroneous standard, and whether the

application of law was correct. State v. Marino, 2016 MT 220, ¶ 9, 384 Mont. 490, 380

P.3d 763.




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          The Justice Court also convicted Beaver of the misdemeanors of driving with a
suspended license, possessing alcohol in a commercial vehicle, and failure to pay commercial
vehicle fees. The State dismissed these misdemeanor charges in the subsequent proceedings in
District Court.
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                                      DISCUSSION

¶9     Whether the District Court erred in upholding the stop and the ensuing
       warrantless inspection of Beaver’s truck by an officer of the Montana Department
       of Transportation.

¶10    The issue in this case is whether the MDT officer needed particularized suspicion

to initiate the stop of Beaver’s truck as provided in § 46-5-401, MCA. We conclude that

the officer did not need a fact-based particularized suspicion to stop and inspect the truck

because it was a commercial vehicle subject to close regulation by law.

¶11    The factual record in this case is sparse. The only findings of fact are those that

the Justice Court made. The Justice Court found that Beaver was driving a “white,

Freightliner, commercial vehicle over 52,000 pounds” when the MDT Motor Carrier

Services officer stopped him “in order to conduct a safety inspection.” The Justice Court

found that after the stop the MDT officer detected the odor of alcohol from Beaver, and

observed alcoholic beverage containers in the cab. The Justice Court found that the

preliminary breath test administered by the MDT officer indicated a BAC over 0.08, and

that Beaver’s driving privileges were suspended after a 2012 DUI conviction.            The

Justice Court found that a Montana Highway Patrol officer responded and “conducted the

DUI investigation,” including a field sobriety test and another breath sample, indicating a

BAC over 0.160. The Justice Court found that the patrolman obtained a search warrant

for Beaver’s blood, which resulted in a BAC of 0.239.

¶12    The Fourth Amendment’s prohibition of unreasonable searches and seizures is

applicable to commercial premises as well as to private homes, and applies to both police

searches and to “administrative inspections designed to enforce regulatory statutes.” New

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York v. Berger, 482 U.S. 691, 699, 107 S. Ct. 2636, 2642 (1987).              However, an

individual’s expectation of privacy in commercial premises is “different from, and indeed

less than, a similar expectation in an individual’s home.” Berger, 482 U.S. at 700, 107

S. Ct. at 2642. As to persons engaged in “closely regulated” enterprises with significant

government oversight, the law recognizes that there is “no reasonable expectation of

privacy.” Berger, 482 U.S. at 700, 107 S. Ct. at 2642. Courts have found that the closely

regulated enterprise exception to the Fourth Amendment applies to the liquor industry, to

pawnshops, to interstate firearms sellers, to the mining industry, and to auto salvage.

Berger, 482 U.S. at 700-01, 107 S. Ct. at 2642-43.

¶13    The legal underpinning of the closely regulated enterprise exception to the Fourth

Amendment is that the reasonableness requirements for a governmental search have

“lessened application” because the privacy interests of the owner are “weakened” and the

governmental interest in regulation is “heightened.” Berger, 482 U.S. at 702, 107 S. Ct.

at 2644. A warrantless governmental action in the closely regulated enterprise context

will be “deemed to be reasonable” if there is a substantial governmental interest in the

applicable regulatory scheme; if warrantless inspections are necessary to further the

regulatory scheme; and if the regulatory scheme advises affected persons that the

inspection is made pursuant to law which properly defines its scope. Berger, 482 U.S. at

702-03, 107 S. Ct. at 2644. Numerous Federal Circuits have recognized that commercial

trucking is a closely regulated enterprise subject to these rules. U.S. v. Delgado, 545 F.3d

1195, 1201 (9th Cir. 2008). The Ninth Circuit has concluded that “the myriad federal and

state statutes that govern commercial trucking place it squarely within the class of

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industries to which Berger applies.”      Delgado, 545 F.3d at 1202. “[W]arrantless

inspection of commercial vehicles ‘advances a substantial government interest’ and is

‘necessary to further the regulatory scheme.’” Delgado, 545 F.3d at 1202. The Delgado

Court upheld the warrantless stop of Delgado’s truck because trucking is a closely

regulated enterprise under state law. Delgado, 545 F.3d at 1203.

¶14   It is clear that commercial trucking is a closely regulated enterprise in Montana

and that the Berger rule applies to stops and inspections of commercial trucking.

Commercial trucking is subject to extensive federal oversight found in Title 49 of the

Code of Federal Regulations.      Montana law contains comprehensive and detailed

regulations applicable to commercial vehicles. These cover allowable vehicle widths

(§ 61-10-102, MCA); vehicle heights (§ 61-10-103, MCA); vehicle length (§ 61-10-104,

MCA); and maximum vehicle gross weight (§ 61-10-107, MCA). Montana law provides

for coordination with federal requirements concerning vehicle gross weight, axle load,

and size. Section 60-10-110, MCA.

¶15   Montana law authorizes MDT to adopt safety standards for commercial vehicles,

which must substantially comply with federal motor carrier safety and hazardous material

regulations. Section 61-10-154(2) and (3), MCA. MDT adopted detailed regulations

applicable to commercial trucking.    Admin. R. M. 18.8.101 through .1506.         Those

regulations cover the “safety inspection program” that authorizes “roadside inspection of

commercial motor vehicles for compliance with federal and state safety requirements.”

Admin. R. M. 18.8.1506. Montana law requires MDT to coordinate with the Montana

Highway Patrol to enforce safety standards in order to maximize coordination and

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minimize duplication. Section 61-10-154(4), MCA. The regulations require MDT to

enforce safety standards through its employees that it designates as “peace officers.”

Those officers may issue citations and make arrests for violations of safety standards, and

may make reasonable inspections of commercial cargo. Admin. R. M. 18.8.1461. The

MDT officers may also enforce applicable federal regulations, including making

“reasonable safety inspections of commercial motor vehicles.” Section 61-10-154(5),

MCA. Based upon these statutes, upon the authorized safety regulations, and upon the

coordination and enforcement of federal requirements, it is clear that in Montana

commercial trucking is a “closely regulated” industry under Berger.

¶16    It is also clear that warrantless inspections of commercial vehicles are necessary to

enforce the applicable requirements related to size, length, weight, and other regulated

aspects of the trade. These regulations are clearly intended to help insure the safety of

the motoring public in general, and of those engaged in commercial trucking. It is

evident that commercial vehicles can pass quickly through jurisdictions with safety

violations that are not readily apparent and that would largely escape detection if states

did not have the power, as Montana law provides, to stop those vehicles for safety

inspections. Delgado, 545 P.3d at 1202. Section 61-10-141(1)(a), MCA, specifically

provides that an MDT officer may require that the vehicle be driven to the nearest scale

for purposes of having it weighed. These inspection powers clearly are necessary and

serve a substantial governmental interest.

¶17    It is also evident that those involved in the commercial trucking industry are on

notice that they are subject to inspections to determine compliance with statutes and

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regulations. The adoption of statutes and regulations provides clear notice that there are

extensive requirements applicable to commercial trucking activities, and that those

activities are subject to inspection to ensure compliance. Inspections authorized by

statute to determine compliance with discrete requirements are consistent with the

requirements of Berger.

¶18   Because commercial trucking is a closely regulated activity in Montana, and

because Montana’s regulatory scheme complies with the notice and focus requirements

of Berger, the MDT officer in this case was authorized to stop Beaver’s vehicle for

inspection without a warrant and without particularized suspicion of a violation. After

detecting evidence that Beaver might be under the influence of alcohol, the officer was

authorized to make further investigation and to enlist the assistance of the Highway

Patrol as a matter of public safety. After the initial stop of Beaver’s truck, evidence of

his consumption of alcohol (the alcoholic beverage containers) was in plain view in the

truck and could be seized and used in a subsequent prosecution. State v. Loh, 275 Mont.

460, 469, 914 P.2d 592, 597-98 (1996).          When an officer is lawfully present and

discovers evidence in plain view it may be seized and used against the defendant. State v.

Delao, 2006 MT 179, ¶ 15, 333 Mont. 68, 140 P.3d 1065.

¶19   The MDT officer in this case acted properly and within the requirements of law in

stopping Beaver’s truck. The resulting evidence of a DUI offense was properly obtained.

Beaver’s conviction is affirmed.


                                                 /S/ MIKE McGRATH


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We Concur:

/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE




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