UNITED STATES of America, Appellee, v. Michael James KNIGHT, Appellant, 306 F.3d 534

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, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987), the Supreme Court held a warrant-less 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, 107 S.Ct. 2636. 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 “[cjollect the following documents: driver’s license; medical éxaminer’s certificate (and waiver, if applicable); records of duty status; driver’s daily vehicle inspection report; 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 “[cjheck 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 702-03,107 S.Ct. 3054. 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, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999); see also United States v. Ross, 456 U.S. 798, 820-21, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

It maintains that since the North American Standard Inspection Program authorized an officer to “[ejheck the cab,” it follows that the officer was permitted to seax-ch 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 Supi-eme 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, 119 S.Ct. 1297, 143 L.Ed.2d 408; Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572; 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 that could conceal the object of the search.

See Ross, 456 U.S. at 824, 102 S.Ct. 2157. 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, 107 S.Ct. 3054 (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 dxhver’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, 116 S.Ct. 1657, 134 L.Ed.2d 911 (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, 103 S.Ct. 2317, 76 L.Ed.2d 527 (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 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, 121 S.Ct. 447, 148 L.Ed.2d 333 (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. 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.