U.S. v. Lozano
| Decision Date | 09 June 1999 |
| Docket Number | No. 98-2780,98-2780 |
| Citation | 171 F.3d 1129 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Alvaro LOZANO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
K. Tate Chambers, Office of the United States Attorney, Peoria, IL; Timothy A. Bass (argued), Office of the United States Attorney, Springfield, IL, for Plaintiff-Appellee.
Thomas W. Patton (argued), Office of the Federal Public Defender, Springfield, IL, for Defendant-Appellant.
Before POSNER, Chief Judge, BAUER, and MANION, Circuit Judges.
This case is a direct appeal by criminal defendant, Alvaro Lozano. The appeal arises from the district court's denial of Lozano's motion to suppress marijuana that was found in his truck following his arrest for traffic violations. Following a conditional guilty plea, Lozano was found guilty of possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Lozano was sentenced to six months of imprisonment, followed by three years of supervised release. We find no merit in Lozano's appeal.
On January 26, 1998, Peoria police officer John Krider was on patrol when he observed a pickup truck, driven by Lozano, making an illegal U-turn Officer Krider stopped the truck and requested Lozano's driver's license and proof of insurance. Lozano informed Krider that there was no insurance on the truck. Krider returned to his vehicle and ran a computer check on Lozano's license, which revealed that his license had been revoked and that the truck's California license plate had expired in 1996, even though the plate displayed a purportedly valid renewal sticker.
Officer Krider decided to arrest Lozano and called a backup officer. After the backup officer arrived, Krider arrested Lozano and placed him in the back seat of the squad car. Krider then approached the female passenger in Lozano's truck and placed her in the back seat of the backup officer's squad car. Krider ran a check on the female's license and found that it too had expired.
Because Lozano did not present proof of insurance and neither Lozano nor his female passenger had a valid driver's license, officer Krider arranged for the truck to be towed from the highway. Prior to the tow, however, Krider began an inventory of the truck. As he conducted the inventory, Krider filled out the pre-printed "Peoria Police/Vehicle Tow Report" inventory sheet, which memorializes the condition of a vehicle and the contents found within the vehicle, prior to the tow. In addition to the pre-printed vehicle checklists on the inventory sheet, blank space is provided to allow officers to make notations or provide descriptions of items found within the vehicle during the inventory process.
First, officer Krider inventoried the cab portion of Lozano's truck. After looking in the cab, he walked toward the back or bed of the vehicle. The bed of the truck was covered by a "topper," which is a bed covering usually made of plastic or vinyl. The plastic topper on the truck had windows, which allowed him to see into the bed of the truck. Looking through the topper's windows, Krider saw five large duffle bags in the bed of the truck. He returned to his squad car and radioed for canine officer assistance.
Canine officer Roegge arrived and Krider instructed him to use the dog to assist in the inventory of the bed of the truck. While Krider filled out the automobile inventory paperwork, Roegge walked his canine around the truck. The dog became very excited when it came to the rear portion of the truck. Roegge opened the bed's topper and allowed the canine to jump up into the bed. Once in the bed, the canine "alerted" to one of the duffel bags. Roegge removed the duffel bag from the bed and unzipped it. The bag contained clothing and "several large bricks of gray duct-tape," which Roegge believed to be some kind of narcotic. Roegge then removed the remaining duffel bags from the truck, placed them on the sidewalk, and let the canine conduct another sniff search. The canine "alerted" to another bag. Roegge opened the bag, which revealed more bricks covered with gray duct-tape. Roegge then put all five duffel bags back into the truck and called the vice unit.
Because both officers believed that the inventory search revealed what appeared to be a sizable amount of drugs, the truck was not taken to the tow yard, but instead, was taken to the Peoria Police Department, where it was turned over to the vice and narcotic divisions for further investigation. On final count, the duffel bags contained 42 packages, which amounted to 182.3 kilograms of marijuana. Soon thereafter, Lozano agreed to cooperate with the Government.
On February 4, 1998, a federal grand jury returned a single-count indictment charging Lozano with possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841. Subsequent to the indictment, Lozano filed a motion to suppress, arguing that: (1) the Peoria Police Department did not have a standard policy on its inventory of closed containers found within vehicles, and (2) even if the department did have such a policy, the officers did not follow that policy. On March 26, 1998, a federal district court held a hearing on Lozano's motion to suppress the evidence obtained in the inventory search. The district court denied the motion. Lozano then entered a conditional plea of guilty to the indictment and reserved the right to appeal the district court's order denying his motion to suppress. On July 10, 1998, Lozano filed his notice of appeal.
At issue in this appeal is whether the marijuana found in Lozano's truck following his arrest for traffic violations was obtained pursuant to a valid inventory search. More specifically, Lozano contends that the Peoria Police Department does not have well-established standardized criteria governing the opening of closed containers during inventory searches, and as a result, the arresting officers were...
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