Dipping a Fuel Tank

[bigcountrysg]

My question involves search and seizure law in the State of: General USA.

Ok I have been in a discussion on another forum I belong to.

Here is the Question at hand.

Can a Police Officer, State Trooper, or alike dip a fuel tank to check for off-road diesel with out warrant or with out permission.

I argue that dipping the tank is a search, there for a warrant or permission would have to be granted. Unless the Officer seen you fill your tank with off-road diesel.

Now Off-road diesel is non taxable fuel. It is used for Agriculture, Excavators, and other uses that are not highway uses.

So can an officer search my fuel tank in this fashion with out consent and with out warrant. Or would they be in violation of my civil rights and be committing illegal search.

[aaron]

Are you speaking of you, as somebody who does not participate in the program? Or you as a participant?

If it's the latter, you may well have given consent to the searches when you signed up.

[bigcountrysg]

Aaron I am asking the question, is dipping a fuel tank with out consent legal. The reason for dipping the tank is to check for non taxed fuel being used on road.

Off-road diesel is dyed red like kerosene. It is dyed red for identification purposes.

There have been reports of Officers in numerous states stopping diesel pick ups, just to dip the tank to see if they are running this non taxed fuel on the highway. The officers are not asking for permission, they come to the window ask for your license registration and insurance. Then they go open up your tank and stick a clear plastic tube down the filler neck of your fuel tank. Then they pull out a sample of fuel. If it is not dyed red your ok. But if it is dyed red then your getting a big fine and most likely your truck is being impounded.

I am questioning the conduct and if this search is legal or not.

Myself I do drive a diesel truck, but I go up to the fuel stop and fill up with Ultra Low Sulfur Diesel. Which is the diesel fuel sold now at filling stations. The average cost for this per gallon is 4.89 a gallon in Michigan.

[lwpat]

As a heavily regulated industry any search is legal except possibly for a locked personal container. If it is a personal vehicle that may be a different situation but my guess is that is also legal.

[jk]

do you know what else that red dye does?

it provides a visible outward sign that can be seen without a warrant.

Locking gas caps. If you want to argue the validity of the search, get a locking gas cap and refuse to give up the key without a warrant.

[aaron]

I know what dyed diesel is and why it is used.

I am interested in whether you are speaking as somebody who is authorized to use dyed diesel, and thus may have consented to the searches when agreeing to participate in the program, or as somebody who is not participating in the program.

It now appears we're talking about DOT-licensed vehicles, not a diesel passenger vehicle. What's the scope of your question?

[BOR]

My question involves search and seizure law in the State of: General USA.

Ok I have been in a discussion on another forum I belong to.

Here is the Question at hand.

Can a Police Officer, State Trooper, or alike dip a fuel tank to check for off-road diesel with out warrant or with out permission.

I argue that dipping the tank is a search, there for a warrant or permission would have to be granted. Unless the Officer seen you fill your tank with off-road diesel.

Now Off-road diesel is non taxable fuel. It is used for Agriculture, Excavators, and other uses that are not highway uses.

So can an officer search my fuel tank in this fashion with out consent and with out warrant. Or would they be in violation of my civil rights and be committing illegal search.

40 CFR addresses this concern, in part. It has a provision for NON consensual entry for refineries, etc., for tests and inspections, see 80.4 Right of entry; but as far as seizing a truck at random to check, it appears to be legal, and may be more of an administrative search than based on individualized suspicion, such as Code enforcemnt officers entering a business to check the standards of operation.

If officer's are doing it, it is a good bet it has been ruled legal in at least thier jurisdiction.

It addresses the Clean Air Act, so maybe some case law at a law library after the selected chapters/sections may provide some clear warrant exceptions answers??

The link takes a minute or two to load.

http://frwebgate6.access.gpo.gov/cgi...ction=retrieve

[bigcountrysg]

I know what dyed diesel is and why it is used.

I am interested in whether you are speaking as somebody who is authorized to use dyed diesel, and thus may have consented to the searches when agreeing to participate in the program, or as somebody who is not participating in the program.

It now appears we're talking about DOT-licensed vehicles, not a diesel passenger vehicle. What's the scope of your question?

No I am talking my personal F-250.

[jk]

40 CFR addresses this concern, in part. It has a provision for NON consensual entry for refineries, etc., for tests and inspections, see 80.4 Right of entry; but as far as seizing a truck at random to check, it appears to be legal, and may be more of an administrative search than based on individualized suspicion, such as Code enforcemnt officers entering a business to check the standards of operation.

If officer's are doing it, it is a good bet it has been ruled legal in at least thier jurisdiction.

It addresses the Clean Air Act, so maybe some case law at a law library after the selected chapters/sections may provide some clear warrant exceptions answers??

The link takes a minute or two to load.

http://frwebgate6.access.gpo.gov/cgi...ction=retrieve

this isn't a clean air act issue (or at least is did not used to be. the use of low sulfer diesel may change this but this but...)BOR. It deals with tax fraud or evasion since there are no highway taxes on the red diesel.

[cdwjava]

I suppose if the officer has some good cause to believe you are burning the fuel in a manner you are not entitled to, he can make the search.

The best way to find the answer might be to consult a local attorney who has knowledge of this area of law ... whatever it might be.

Other than that, you might consider refusing to consent to the search and then making a motion to suppress if you are charged with an offense later in court.

- Carl