In United States v. Richmond, No. 17-40299, 2019 WL 491779 (5th Cir. Feb. 8, 2019), the Fifth Circuit recently held that the “relatively minor” act of tapping a tire qualifies as a search under the trespass-based approach detailed in United States v. Jones, 565 U.S. 400 (2012), when it is done in order to learn whether the tire contains contraband.
While patrolling on a highway in Texas, a state trooper observed that the tires on the truck Ms. Richmond was driving were “shaking,” “wobbly,” and “unbalanced.” The trooper initiated a traffic stop after watching the vehicle cross over the fog line onto the shoulder of the highway. While walking to the rear of the truck, he noticed that the bolts on the passenger-side rear tire “had been stripped as [if] they had been taken off numerous times.” At this point, the trooper “pushed on the tire with his hand,” which elicited a “solid thumping noise” and raised his suspicions that the tire may contain drugs. A later examination of the tires at a dealership revealed that they contained methamphetamine.
On appeal, Richmond argued that the trooper’s initial touching of the tire was a search, and that the search was not supported by probable cause. The court held that under a trespass analysis, “[the trooper’s] tapping of the tire was a search regardless of how insignificant it might seem.” The Fifth Circuit explained that under the trespass-based approach detailed in Jones, “a trespass ‘must be conjoined’ with ‘an attempt to find something or obtain information,’” i.e., investigatory intent, in order to constitute a search. This two-pronged approach “prevents a mere physical touching, such as when an officer leans on the door of a car while questioning its driver,” or other “incidental conduct,” from becoming a search.
In Ms. Richmond’s case, the court determined that the trooper’s conduct satisfied both prongs of the test outlined in Jones. The court reasoned that tapping the tire was a trespass similar to “attaching a GPS to the exterior of a vehicle,” as in Jones, because of the physical contact made with the vehicle in both instances. Because the trooper initiated the contact with the tire in order to “confirm his suspicion that it contained more than just air,” the tap became a search within the meaning of the Fourth Amendment. The court further explained that it was unlikely that the information that the trooper had when he made contact with the tire constituted probable cause to conduct the search.
Ultimately, however, the court determined that the trooper did have “probable cause to believe that the tire posed a safety risk” based on his observations of the tire’s wobble and “the truck veering outside its lane.” Thus, the court held that public safety interests justified the search, and affirmed the district court’s judgment denying Richmond’s initial suppression motion. Although Richmond did not ultimately prevail in her appeal, the court’s conclusion that “the brief physical examination of the tire was subject to the Fourth Amendment under the recently revived trespass test” will benefit other defendants, and it serves as a reminder to consider other possible applications of the trespass-based approach outlined in Jones.
The decision can be found here.