Warrant-less Searches of CMV Cabs

[SickRick]

Out of (morbid) curiosity...

I KNOW that citizens (even illegal aliens) have a right to refuse to allow LEO's to search their personal vehicles - while most cops will force or intimidate an individual into waiving that right - if you step OUT of your car, lock it and tell them to get a WARRANT (absent serious probable cause or contraband in plain view), much as they bully and puff out their chests, officers must obtain a search warrant to go through your car.

I also pretty much know that the same 4th Amendment rights do NOT HOLD TRUE for a CMV. That vehicles registered as CMV's are subject to search (aka: inspection) at ANY TIME without warrant - even the sleeper cab area and sealed loaded - and that evidence obtained via these inspections (down to dumb stuff like torn out log book pages) cannot be suppressed based on the lack of probable cause or a warrant.

What I'm CURIOUS OF - is what part of 49 CFR (or other Federal law) makes this possible, which reg waives 4th amendment rights against warrant-less searches of CMV Tractors, Sleeper Cabs and Trailer Contents?

Rick

[zipy46]

Out of (morbid) curiosity...

I KNOW that citizens (even illegal aliens) have a right to refuse to allow LEO's to search their personal vehicles - while most cops will force or intimidate an individual into waiving that right - if you step OUT of your car, lock it and tell them to get a WARRANT (absent serious probable cause or contraband in plain view), much as they bully and puff out their chests, officers must obtain a search warrant to go through your car.

I also pretty much know that the same 4th Amendment rights do NOT HOLD TRUE for a CMV. That vehicles registered as CMV's are subject to search (aka: inspection) at ANY TIME without warrant - even the sleeper cab area and sealed loaded - and that evidence obtained via these inspections (down to dumb stuff like torn out log book pages) cannot be suppressed based on the lack of probable cause or a warrant.

What I'm CURIOUS OF - is what part of 49 CFR (or other Federal law) makes this possible, which reg waives 4th amendment rights against warrant-less searches of CMV Tractors, Sleeper Cabs and Trailer Contents?

Rick

I think all they really do is peak there head behind the curtain and make sure you have

proper sleep stuff like pillows,sheets,blankets,and fuzzy bunny slippers.

They dont rifle thru all your other stuff as far as i understand.

They want to make sure you comply as far as proper sleeping supplies are concerned.

[SickRick]

background - this stems from a discussion on another board - where a member there was invited to be the "guest of honor" at a roadside Level 3, and the officer came in through the passenger door, picked up some receipts (a CAT ticket, and some toll receipts) to match up with his logs.

My position was, that unlike a POV - a CMV is subject to "inspection" at any time - and you can't tell an officer; "no, stay out of my cab unless you have a warrant" - as you CAN with your POV.

I wasn't talking about making sure you have a BED in your sleeper berth - more along the lines of fishing expeditions in your cab area for evidence of violations.

CAN YOU REFUSE ACCESS TO YOUR CAB to a LEO who doesn't have a WARRANT TO SEARCH IT? Common sense says - if you have nothing to hide, a search of your cab is no big deal - and REFUSING is going to cause more trouble than it's worth.

I HAVE REFUSED TO ALLOW COPS to search my CAR - end they've either let me go - or in one case, were SO INTENT ON SEARCHING IT, that they made me wait 40 minutes until they actually GOT permission from a Judge. I was CLEAN (which pissed them off to NO END) and when asked WHY I just wouldn't let them search, I told them BECAUSE YOU HAVE NO RIGHT OR PROBABLE CAUSE TO DO SO. Since I carry a licensed concealed firearm, a search of my car "for the officers safety" is unnecessary, as I DECLARE that I'm armed. Warrants must be SPECIFIC for what they are searching FOR. It can't just say "STUFF" or "CONTRABAND". For the most part, anything NOT SPECIFIED in the WARRANT, that is NOT IN PLAIN VIEW, that is found INCIDENTAL TO A WARRANT SEARCH is INADMISSIBLE as evidence in a criminal proceeding. They can't search for "stolen mag wheels" in your glove box, find weed and arrest you for it - it'll get thrown out in the first hearing on a suppression motion - EVEN WITH A WARRANT. But if you WAIVE YOUR RIGHTS and give PERMISSION TO SEARCH YOUR CAR WITHOUT A WARRANT - ANYTHING THEY FIND IS ARREST-ABLE AND ADMISSIBLE.

Rick

[Uturn2001]

background - this stems from a discussion on another board - where a member there was invited to be the "guest of honor" at a roadside Level 3, and the officer came in through the passenger door, picked up some receipts (a CAT ticket, and some toll receipts) to match up with his logs.

There are laws on the books that basically say that receipts can be used to verify the accuracy of log books and must be made available upon request during a specific time frame. They must be kept by the "owner" of the company who has the operating authority the truck is running under. Based on how this comment was worded I can only assume that these receipts were in "plain view" which would make moot any argument about searches.

The only thing a driver can really say "NO" to when it comes to searching the CMV is having his/her personal items searched. Things such as duffel bags, suit cases, personal books, movies, music, computer, etc.

When it comes to searches related to complying with the regs about the operation of the CMV a driver can't really refuse. This can include anything from making sure you have spare fuses to the load being properly secured and manifested.

[GMAN]

The police cannot search a cmv without a search warrant or probable cause any more than with a personal vehicle. If something is in plain sight then it is fair game as I understand it. Being on the dash could be considered in plain sight.

[Rev.Vassago]

There are laws on the books that basically say that receipts can be used to verify the accuracy of log books and must be made available upon request during a specific time frame.

Please cite those specific laws.

[DaveP]

[b]Please cite those specific laws]/b].

I just love it when you do that...lol.

[LOAD IT]

The answer to your question is in the regs 396.9 which authorizes LEOs to enter a CMV and inspect. If you operate " Not For Hire" you dont have to comply. I dont like it any more than you do, but you have to submit to authority or lose your right to drive a CMV. I have seen some wild things in driver's trucks so if you have something to hide, dont put it in the truck. I had a driver try to cross into Canada with porn mags in his truck and porn on his hard drive, he got a ticket, was denied access into Canada and then had to do 45 days in jail up there, I was pissed because the load was delayed 2 days until I could get another driver under it, all because of some girlie mags. I had another driver that abandoned his truck and when we got it back, his porn had women getting it on with dogs and he had kiddie porn. He had the nerve to call and ask about his "stuff". The LEOs are looking for this kind of thing because some of our fellow drivers are just that low down and sleezy, again I dont like it any more than you do, but you have to submit to authority or lose your right to drive a CMV.

[SickRick]

The answer to your question is in the regs 396.9 which authorizes LEOs to enter a CMV and inspect. If you operate " Not For Hire" you dont have to comply. I dont like it any more than you do, but you have to submit to authority or lose your right to drive a CMV. I have seen some wild things in driver's trucks so if you have something to hide, dont put it in the truck. I had a driver try to cross into Canada with porn mags in his truck and porn on his hard drive, he got a ticket, was denied access into Canada and then had to do 45 days in jail up there, I was pissed because the load was delayed 2 days until I could get another driver under it, all because of some girlie mags. I had another driver that abandoned his truck and when we got it back, his porn had women getting it on with dogs and he had kiddie porn. He had the nerve to call and ask about his "stuff". The LEOs are looking for this kind of thing because some of our fellow drivers are just that low down and sleezy, again I dont like it any more than you do, but you have to submit to authority or lose your right to drive a CMV.

396.9 (a) Personnel authorized to perform inspections—Every special agent of the FMCSA (as defined in Appendix B to this sub-chapter) is authorized to enter upon and perform inspections of motor carrier’s vehicles in operation.

Yah, I saw that one. Intentionally VAGUE (as are many FMSCA regs). One would think the definition of "inspection" differs from "search".

Again - the intent of this discussion was to try and determine if there is a FEDERAL LAW that REQUIRES CMV operators to allow an officer to enter and SEARCH the interior of your tractor without getting a WARRANT (if you refuse permission) - or does just the fact that CMV is more tightly regulated than a personal motor vehicle give LEO's the right to search without permission?

Inspect, in my eyes - would mean, verify that the sleeper bunk meets the requirement of the sleeper bunk provision. Verify that safety related controls and items (reflectors, fire extinguisher, spare fuses, service brake actuators, etc.) are present and working.

Probably does NOT mean going though your porn collection - then again - border crossings are an entirely different animal from traffic stops or getting pulled at a coop.

State law research I've done, doesn't seem to indicate that CMV operators have any LESS rights than they would in their POV's. Then again, checking to make sure you don;t have a RADAR DETECTOR in your CMV might be justified, versus it wouldn't be in a POV. I've seen appeals cases that have gone either way - truck was searched against the protest of the operator - evidence thrown out on appeal AND CMV's have higher standards of responsibility and evidence was found to be admissible.

Still doesn't answer the question, can you EXIT YOUR TRUCK - LOCK THE DOORS and tell a LEO - UP YOURS GET A WARRANT like you can in your CAR?

Rick

[LOAD IT]

396.9 (a) Personnel authorized to perform inspections—Every special agent of the FMCSA (as defined in Appendix B to this sub-chapter) is authorized to enter upon and perform inspections of motor carrier’s vehicles in operation.

Yah, I saw that one. Intentionally VAGUE (as are many FMSCA regs). One would think the definition of "inspection" differs from "search".

Still doesn't answer the question, can you EXIT YOUR TRUCK - LOCK THE DOORS and tell a LEO - UP YOURS GET A WARRANT like you can in your CAR?

Rick

396.9 answered your question, you just dont like the answer. This conversation brought back an incident that you will like the outcome. I had a driver dealing drugs out of the company truck from Lake Park GA up to Charlotte NC. He gets pulled over one night in a small town in south Georgia for crossing the center line. The cops find a pistol and $14000 cash, but no drugs. We suspected him of the dealing but of course never saw it. Safety and Personnel said to fire him and Personnel reported the arrest and pistol on his DAC. His lawyer beat the charges and the DAC report was cleared.

[SickRick]

396.9 answered your question, you just dont like the answer. This conversation brought back an incident that you will like the outcome. I had a driver dealing drugs out of the company truck from Lake Park GA up to Charlotte NC. He gets pulled over one night in a small town in south Georgia for crossing the center line. The cops find a pistol and $14000 cash, but no drugs. We suspected him of the dealing but of course never saw it. Safety and Personnel said to fire him and Personnel reported the arrest and pistol on his DAC. His lawyer beat the charges and the DAC report was cleared.

What was the driver arrested for? The PISTOL? Why was he arrested for the pistol - improperly secured? Possession of a firearm by convicted felon? There ARE NO LAWS banning firearms in CMV's (though company regs might) or having $14K in cash on you (I'd carry a pistola too if I had that much cash on me). You could have terminated him for having a GUN in the truck - if it was against PUBLISHED COMPANY POLICY (which is why new hires are made to sign those sheets that acknowledge they've read and understand the company rules & policies) and left it on his DAC as reason for termination.

I have no problem with it (369.9) answering my question - just found it incredibly vague and far reaching (similar to no one, including 4 DOT officers being able to define just what constitutes an "emergency" in 395.1(b)(2) pretty much settling on a "state of emergency" declared by a president, governor or mayor - but the rule doesn't say that - again, incredibly overly broad and vague).

Nor do I really think that rule cited waives anyone's 4 & 5th amendment rights regarding unwarranted searches of their personal property in a CMV.

Now, I'm not arguing the point for MY SAKE - personally I AM UNDER THE IMPRESSION THAT SOME LAW DOES ALLOW WARRANTLESS SEARCHES OF CMV's. I just wanted to know whether is was in the FMCSA's, some other statute in the CFR's, or a state thing.

If pulled over - MY WEAPON will be legally concealed on my person if that particular state has reciprocity with florida, if no, otherwise securely encased in the cab area or an (unreachable from inside the cab) outer toolbox/compartment - and while firearms may be against company policy in a truck, they are NOT AGAINST ANY LAW. Aside from that, there will NEVER be any contraband in my cab to worry about.

So personally. if stopped - I WOULD LET THEM SEARCH MY CMV WITHOUT A WARRANT - because I believe that there IS A LAW which authorizes this. I just don't think 369.9 is that law. I'm due to run into a local DOT guy at the Dunkin in a day or 2 - I'll get his opinion on which reg HE THINKS allows him to do a search...

Rick

[golfhobo]

396.9 does not apply and is not the authorization for just ANY LEO to search your truck. See Appendix B here:

49 CFR Subtitle B Chapter III Subchapter B Appendix B - Federal Motor Carrier Safety Administration

However, unless you OWN the truck, the 4th ammendment doesn't protect you from such a search either.

State laws DO, in fact, make distinctions between CMV's and POV's... at least as far as BAC levels go.... so it is possible that they might authorize such a search without a warrant, but I doubt it.

I can't find anything in the regs, but I suspect there is probably something in the manner of an "implied consent" law applicable to CMV's..... probably buried in the Interstate Commerce Act.

[Old Salt_19]

I posted this under an earlier thread. Not being 100% certain, but believe that federal LEO's would be authorized.

"I was crossing back into the U.S. at the Sault Ste Marie entry point, the Customs Service directed me to the side, X-rayed the load, backed up to the little dock area and they inspected my load and re-sealed it, then climbed in and inspected inside the tractor. Then when they completed their inspection and gave me the go ahead, they directed me to pull over to the MI DOT officer who was waiting outside his office for me."

Mind you I had nothing to hide, no worries unless they were looking for unwashed clothing. In the case of US Customs searching my tractor, they opened the bunk area, looked in plastic totes I used for storing folded clothing, checked my toolbox, checked hanging closet areas, and closed drawers, the overhead areas both rear and forward. Although it was a quick search in all areas, they never made a mess, or left things out for me to put back, they did ask if I was in possession of any firearms and specifically did I carry any knives, to which I stated only the box cutter they saw in the top of my toolbox. Thanked me for the time and let me move on.

[TimberWolf]

This happens to me everytime I deliver fuel to Patrick Air Force Base, The Pinkerton guys at the gate are quite nice and just go through the motions, which require I turn over my BOL, & DL get out of the truck answer the same question every time, "What is my purpose on the Base"? "When was the last time I was there"? "Do I have any weapons"? I then open the hood, open all doors, and my equiptment storage compartment stand off to the side about 20' from the tractor and wait for them to do a quick glance over of everything and then allow me to procede, it happens this way all the time even if I deliver 3 days in a row with the same gaurds at the gate.

Timberwolf

[SickRick]

Interesting notes on the border crossings.

While operating my RV/Tour Bus I did Rainbow Bridge in & out once and, once out at Buffalo & back in in Vermont. I got scrutinized more coming back in on the Vermont entry, and even that was just a cursory glance around the interior of the bus and the equipment trailer. Going in, Canadian customs was more interested in bumming autographed CD's (which we pre-autographed for just that occasion) than looking at anything we were carrying.

I sweated both times, as I had my firearm unloaded and locked in a gun case (in a sekrit hiding spot) bud hadn't declared because I wasn't legal in New York and had no place to stash it and pick it back up after coming back in.

Are there lockers or places near the border(s) where you can leave stuff securely that you don't want to (or can't legally) cross borders with?

Rick

[golfhobo]

Old Salt: YOUR situation is a "customs" search. Anytime you cross the border, you will or can be searched. The authorization is specific, and the LEO's are authorized.

Timberwolf: YOUR situation is a DHS search. Anytime you enter a Federal compound/military base, you will or can be searched.

I was trying to avoid a long explanation of my post but....

396.9 (a) Personnel authorized to perform inspections—Every special agent of the FMCSA (as defined in Appendix B to this sub-chapter) is authorized to enter upon and perform inspections of motor carrier’s vehicles in operation.

First, you will note that Appendix B that I linked to earlier specifically identifies what a "special agent of the FMCSA" is. I'm quite sure that not every Tom, Dick and local sherriff carries the form mentioned there, and they certainly aren't all TRAINED and QUALIFIED to do a complete "mechanical" inspection of a CMV for the purpose of.... and with the responsibility of.... ensuring it is safe to be on the road. SOME LEO's are, but not just ANY or ALL of them. And those that ARE, seem to be limited to mechanical inspection and document inspection (at least as far as that reg is concerned.)

Second, the reg is a SUBpart of Part 396, and the entire scope of that section is ONLY the "mechanical" inspection, repair and maintenance of CMV's. So.... in this case.... an "inspection" is NOT the same as a "search."

There are STATE laws that allow LEO's to search vehicles with probable cause OR with a warrant, but the authorization for such is a STATE statute and NOT the FMCSR's.

I don't have an answer to the O.P's question per se. I am only saying that the reg some have cited is NOT an authorization to search a truck for contraband or porn or such.

My thinking is that, if you drive a COMPANY truck.... you don't have a right to demand a warrant. They can simply call the company and get permission OR the company has already "implied consent" by having an ICC number.

If you OWN the truck, it is possible that (like your POV) you could demand a warrant.... but, we all know they can get one. (and again, YOU may have implied consent when you got your authority.)

If you want to cross a border, or enter a military/federal facility, you have "implied consent" to being searched whether in a CMV OR a POV.

But, I have found nothing that says that by holding a CDL you have "implied such consent" for anything other than the same UA you have consented to by driving ANY vehicle.

[zipy46]

Next Poll :

Are truck drivers paranoid ?

[Jumbo]

Who told you to ask that?

[zipy46]

The unique thing about trucking is that a driver has practically no recourse other than

to do as they are told.

Draw any negative attention from anyone and you are likely to be pounding the pavement.

[BanditsCousin]

US customs always tears my truck up and I have to make my bed and stuff. The excessive dog hair always scares one of em off, and helps speed it up. One told me he was allergic to dog hair, and sent a lower ranking official in. Before me crossing into Winnipeg (at Pembina), he kept asking me if I had needles and stuff, probably close to 6 times while on the dock as they were verifying a car I was exporting.

Tip: always leave a full pee pee jug in plain sight in the sleeper, and a few articles of women's clothing. They looked at me funny after the search, even though it was a few things my gf left in the truck lol.