U.S. v. Quinones-Sandoval, QUINONES-SANDOVA

• Decision Date: 18 September 1991
• Docket Number: No. 90-3480,D,QUINONES-SANDOVA,90-3480
• Citation: 943 F.2d 771
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pedroefendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 771

943 F.2d 771

UNITED STATES of America, Plaintiff-Appellee, v. Pedro QUINONES-SANDOVAL, Defendant-Appellant.

No. 90-3480.

United States Court of Appeals Seventh Circuit.

Argued May 6, 1991.

Decided Sept. 18, 1991.

Robert Haida, Asst. U.S. Atty., Criminal Div., Randy G. Massey (argued), East St. Louis, Ill., for U.S.

Ilene A. Goodman (argued), Federal Public Defender, St. Louis, Mo., for defendant-appellant.

Before CUMMINGS and EASTERBROOK, Circuit Judges, and WILL, Senior District Judge. ^*

WILL, Senior District Judge.

Pedro Quinones-Sandoval was convicted for one count of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). The drugs were found during a search of Quinones' car incident to a traffic stop. He appeals the district court's grant of the Illinois Department of State Police's motion to quash his subpoena for police records contending the documents sought were relevant to show that the stop was pretextual. He also challenges the court's denial of his pretrial motion to suppress the cocaine evidence, claiming both that the stop was a pretext to search for narcotics and that he did not voluntarily consent to the search. We affirm.

I.

On the morning of March 6, 1990, Pedro Quinones-Sandoval was driving north on I-57 in Fayette County, Illinois in a silver car with Texas license plates. State Police Trooper Thomas Oliverio was driving behind Quinones and observed him run over the left and right hand fog lines of the highway while passing a semi-tractor trailer. He signaled Quinones to stop. Quinones pulled over and stepped out of his car. Trooper Oliverio came over to the car and told Quinones that he had been stopped because he had run off the road twice and asked to see his driver's license. As Quinones handed him a Texas driver's license, Trooper Oliverio saw that Quinones had another form of identification in his wallet which turned out to be a Michigan identification card. A check of the license plates revealed that the car was registered to a woman in Texas who Quinones identified to be his aunt. Quinones produced an affidavit signed by his aunt authorizing him to drive the car and an expired insurance identification card in his own name. Sometime during this conversation Trooper Oliverio noticed that inside the car two strong smelling air fresheners were wedged into an air vent and an empty air freshener box was on the floor between the car door and the passenger seat.

Trooper Oliverio asked Quinones to sit with him in the patrol car while he ran a license check and issued a warning ticket. He prepared a ticket for improper lane usage which he asked Quinones to sign. Quinones signed the ticket and Trooper Oliverio gave him a copy and returned his identification. He asked Quinones whether he had any drugs or guns in his car. Quinones responded, "No, check it out." Trooper Oliverio asked if his response meant that it was alright to search the car and Quinones confirmed that the car could be searched. Trooper Oliverio then asked Quinones whether he understood Spanish better than English and Quinones responded that he did. Trooper Oliverio completed a consent to search form on the side written in Spanish and asked Quinones if he would sign the form. Quinones refused but confirmed that he did not object to the search. Around this time, another Trooper, Jane Middleton from the canine unit, arrived at the scene. Trooper Oliverio asked Trooper Middleton to sit in the patrol car while Quinones repeated his consent. Shortly thereafter, a third officer, Trooper Stockwell arrived, who stayed with Quinones in the patrol car while the search was conducted.

A search dog signaled an alert at both rear sides of the car. Trooper Oliverio examined the interior of the car and noticed that the black paint on the head of a screw holding an air vent near the rear of the driver's side door was chipped off indicating that it had previously been removed. He took off the vent and discovered several packages later confirmed to contain cocaine. Quinones was placed under arrest.

II.

Before trial, Quinones subpoenaed documents from the custodian of records of the Illinois Department of State Police. He requested all records related to Trooper Oliverio's stops, warnings, tickets, searches and arrests beginning in 1988, including the race of all individuals who were stopped, the number of vehicles searched, the fruits of these searches and the number of individuals who consented to the searches. The Department responded to the subpoena by filing a motion to quash contending that Quinones' request was not only unreasonable and oppressive but that the documents sought were also irrelevant to the constitutionality of the stop. The district court agreed and quashed the subpoena.

A traffic stop cannot be used as a pretext to search for narcotics. United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932); United States v. Lewis, 910 F.2d 1367, 1371 (7th Cir.1990). Quinones asserts that the subpoenaed information directly pertained to whether Trooper Oliverio had a habit and routine practice of using minor traffic violations as a pretext to stop motorists based on their race. This circuit, however, employs an objective test to determine whether a stop is purely a pretext to conduct a search where probable cause to search is lacking. United States v. Trigg, 878 F.2d 1037, 1041 (7th Cir.1989). The analysis under this approach is limited to examining whether there was probable cause to make the particular stop and whether the stopping officer was acting with authority. Id. "[S]o long as the police are doing no more than they are legally permitted and objectively authorized to do, an arrest is constitutional." Id.

Quinones subpoenaed the police department records in an effort to demonstrate that Trooper Oliverio had preconceptions about the profile of drug traffickers and that this was the underlying reason for the stop. The only pertinent inquiry, however, was whether Quinones had committed a traffic violation for which Oliverio was authorized to issue a warning. Given that Trooper Oliverio's past pattern of stops and searches was not relevant to whether he had a permissible basis to stop Quinones, the district court acted within its discretion in quashing the subpoena.

* * *

Quinones next argues that the district court erred in denying his motion to suppress the cocaine evidence because the stop was pretextual. He contends that it was implausible that he would have been stopped simply...