U.S. v. Smith, s. 95-1146

• Decision Date: 02 April 1996
• Docket Number: Nos. 95-1146,95-1854,95-1891 and 95-4017,s. 95-1146
• Citation: 80 F.3d 215
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry W. SMITH, James M. Shepherd, Ernesto M. Sanchez, and Benjamin R. Shepherd III, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 215

80 F.3d 215

UNITED STATES of America, Plaintiff-Appellee, v. Larry W. SMITH, James M. Shepherd, Ernesto M. Sanchez, and Benjamin R. Shepherd III, Defendants-Appellants.

Nos. 95-1146, 95-1854, 95-1891 and 95-4017.

United States Court of Appeals Seventh Circuit.

Argued Feb. 6, 1996.

Decided April 2, 1996.

Appeal from the United States District Court for the Southern District of Illinois, East St. Louis Division. No. 94 CR 30032--William D. Stiehl, Judge.

Ralph M. Friederich (argued), Office of U.S. Atty., Criminal Div., Fairview Heights, IL, for U.S.

Renee E. Schooley (argued), Office of Public Defender, East St. Louis, IL, for Larry W. Smith.

Eric W. Butts, St. Louis, MO, David M. Fahrenkamp (argued), Edwardsville, IL, for James M. Shepherd.

David M. Fahrenkamp (argued), Edwardsville, IL, for Ernesto M. Sanchez.

Christopher S. Swiecicki (argued), St. Louis, MO, for Benjamin R. Shepherd.

Before ESCHBACH, KANNE and EVANS, Circuit Judges.

ESCHBACH, Circuit Judge.

On March 24, 1994, the grand jury returned a three-count indictment naming Larry Smith, James Shepherd, Ernesto Sanchez, and Benjamin Shepherd in each count. The indictment charged the defendants with conspiracy to possess with the intent to distribute marijuana, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2, possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). Following an evidentiary hearing, the district court denied the defendants' separate motions to suppress evidence. A jury returned guilty verdicts as to all four defendants on all three counts. All four defendants appeal from their convictions. Smith also challenges his sentence. For the following reasons, we affirm in part, reverse in part, and remand.

I. Background

The four defendants were arrested in Collinsville, Illinois, on February 23, 1994. Three of the defendants, Larry Smith, Ernesto Sanchez, and James Shepherd, had travelled by caravan with several other co-defendants in two separate vehicles--a Mercury Cougar (the "Cougar"), and a Ford Aerostar van (the "Aerostar")--from Arizona to Collinsville, Illinois on their way to Ohio. The defendants stopped and spent the night at a Quality Inn in Collinsville.

At 6:00 a.m. the next morning, Sergeant Netemeyer of the Collinsville Police Department observed the two vehicles with Arizona plates parked next to each other and noted that the Cougar appeared to be riding low to the ground. Netemeyer's suspicions were also aroused because the Aerostar was an old van but had a sophisticated voice alarm system. Netemeyer looked into the Cougar and noticed an air freshener hanging from the rear view mirror. He checked the registration of the vehicles and found that the Cougar was registered to Sanchez and that the Aerostar was registered to Benjamin Shepherd. The front desk clerk at the Quality Inn indicated that Benjamin Shepherd had rented two rooms the night before. Netemeyer also learned that Benjamin Shepherd had a conviction for transporting drugs. Netemeyer contacted several other officers to begin a surveillance of the vehicles. During this period of surveillance, the officers observed a third vehicle--a Ford Econoline van (the "Econoline") with Ohio registration--the occupants of which appeared to be acquainted with the occupants of the Cougar and the Aerostar.

The three vehicles left the Quality Inn separately and the defendants were arrested as a result of three different traffic stops executed by various members of the Collinsville, Illinois, Police Department. Sergeant Delmore followed the Cougar which contained James Shepherd, Sanchez and one other individual, for .7 miles before stopping it. Sergeant Netemeyer had told Delmore about the air freshener inside the Cougar, and the traffic violation observed by Delmore was an air freshener hanging from the rear view mirror, a violation of 625 ILCS 5/12-503(c). Sanchez, the driver and owner of the Cougar, consented to a search of the car. Sanchez informed Delmore that there were two unloaded, disassembled guns in the trunk. The stop lasted approximately thirty minutes and was videotaped. The occupants of the Cougar were arrested after Delmore learned that the police had located large amounts of marijuana in the Aerostar driven by Smith.

Smith drove the Aerostar away from the Quality Inn and another individual was a passenger. Officer Pyles stopped the Aerostar. Pyles testified that the van had a cracked windshield, a violation of 625 ILCS 5/12-503(e), and that he observed the van cross over the white fog line on the shoulder as it turned onto another road. Pyles gave Smith a verbal warning for crossing over the shoulder and for the cracked windshield. Pyles informed Smith that he was free to go but asked Smith for permission to search. Smith orally consented to the search. Pyles searched the van for ten to fifteen minutes and then used a police dog to search. The dog alerted Pyles to marijuana in the back of the van. Officer Pyles found approximately 45 packages totalling 91 pounds of marijuana in the vehicle.

Sergeant Netemeyer followed the Econoline van, which was driven by Benjamin Shepherd and occupied by two other individuals. Netemeyer stopped the Econoline because it was straddling lanes and because the driver failed to use a turn signal properly prior to making a turn. Netemeyer arrested Benjamin Shepherd after learning that he did not have a driver's license. While talking with one of the passengers, Netemeyer observed two semiautomatic weapon clips. During an inventory search of the vehicle, Netemeyer also located a .45 caliber handgun on the back bench seat of the van, within reach of a passenger.

The four defendants argue that the judge improperly denied their motions to suppress and that the district court erred in giving jury instruction No. 23. They argue that jury instruction No. 23 constructively amended the indictment for count three by making them liable for the acts of coconspirators and that jury instruction No. 23 failed to give the proper Pinkerton instruction. The four defendants also argue that the district court's instructions on count 3 were improper in the light of Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Finally, defendant Smith argues that the district court erred in denying him a downward departure for being a minor or minimal participant. All four defendants filed timely notices of appeal and we have jurisdiction under 28 U.S.C. § 1291.

II. The Motions to Suppress

We review the denial of a motion to suppress for clear error. United States v. Tilmon, 19 F.3d 1221, 1223 (7th Cir.1994).

A. James Shepherd

James Shepherd did not file a motion to suppress evidence in the district court, and he has, therefore, waived his right to review of this issue. Fed.R.Crim.P. 12(f); United States v. Moralez, 964 F.2d 677, 680 (7th Cir.), cert. denied, 506 U.S. 903, 113 S.Ct. 293, 121 L.Ed.2d 217 (1992). James Shepherd's failure to file a motion to suppress is probably explained by the fact that he lacks standing to contest the seizure of items from the Cougar owned and driven by Sanchez. James Shepherd was a passenger in the Cougar and he did not present any evidence that he had an expectation of privacy in the area searched or the items seized, and he cannot demonstrate standing to contest the seizure. United States v. Torres, 32 F.3d 225, 230 (7th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 912, 130 L.Ed.2d 794 (1995).

B. Smith, Sanchez, and Benjamin Shepherd

The defendants argue that the traffic stops were a pretext to search for evidence. On appeal, they do not contend that the searches were illegal in any manner; they contend only that each stop itself was improper. This circuit employs an objective, two-part test for pretextual stops: we ask whether there was probable cause to make the particular stop and whether the stopping officer was acting with authority to make the stop. United States v. Willis, 61 F.3d 526, 530 (7th Cir.1995), petition for cert. filed, (U.S. Oct. 23, 1995) (No. 95-6488); United States v. Trigg, 878 F.2d 1037, 1041 (7th Cir.1989), aff'd. on appeal after remand, 925 F.2d 1064, 1065 (7th Cir.), cert. denied, 502 U.S. 962, 112 S.Ct. 428, 116 L.Ed.2d 448 (1991). In the instant case, the defendants do not challenge whether the stopping officers were acting with authority to make the stop and the district court found that each of the defendants' vehicles were stopped for a legitimate traffic violation. Therefore, we affirm the district court's denial of the motions to suppress.

The stops of the Aerostar and the Econoline are fairly straightforward. The Econoline was straddling lanes and the driver, Benjamin Shepherd, failed to signal prior to making a turn. Thus, Shepherd's driving gave Netemeyer ample cause to believe that Illinois traffic laws were being violated. The Aerostar had a cracked windshield and crossed over the white fog line on the shoulder. The Illinois law prohibits operating a vehicle when the windshield is "in such defective condition or repair as to materially impair the driver's view to the front, side, or rear." 625 ILCS 5/12-503(e). Smith argues that the crack in the windshield would not strike a prudent person as "materially impairing" a driver's view. Smith, however, fails to comprehend that the issue here is not whether he would have been convicted of a violation in a traffic court. The issue is whether there was probable cause that a traffic law had been violated. See Willis, 61 F.3d at 530; United States v. Quinones-Sandoval, 943 F.2d 771, 774 (7th Cir.1991). The district court reviewed the evidence and found that there was probable cause for each stop and that the stopping officers acted with authority to make the stops. We agree. The stops were not pretextual. Trigg, 878...