U.S. v. Trevino

• Decision Date: 16 August 1995
• Docket Number: No. 94-2651,94-2651
• Citation: 60 F.3d 333
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Librado TREVINO, also known as David Ortiz, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 333

60 F.3d 333

UNITED STATES of America, Plaintiff-Appellee, v. Librado TREVINO, also known as David Ortiz, Defendant-Appellant.

No. 94-2651.

United States Court of Appeals Seventh Circuit.

Argued April 10, 1995.

Decided July 17, 1995.

Rehearing Denied Aug. 16, 1995.

K. Tate Chambers, Asst. U.S. Atty. (argued), Gerard A. Brost, Office of the U.S. Atty., Peoria, IL, for plaintiff-appellee.

Carey J. Luckman (argued), Pontiac, IL, for defendant-appellant.

Before MANION and ROVNER, Circuit Judges, and WILL, District Judge. ^*

MANION, Circuit Judge.

Librado Trevino was convicted on one count of distribution of cocaine and one count of distribution of marijuana, both in violation of 18 U.S.C. Sec. 841(a)(1). In this direct appeal, Trevino challenges the district court's denial of his motion to suppress evidence gathered from what he characterizes as an unconstitutional checkpoint stop. He also challenges the effectiveness of trial counsel. We find no merit in either challenge and therefore affirm the district court's judgment.

I.

Officers of the Peoria Police Department set up checkpoint stops at selected sites located in Peoria, Illinois. According to police guidelines, all vehicles passing through these checkpoints would be stopped. The officers conducting the stop would check each vehicle for equipment violations; they also checked each driver for various driving violations, including no proof of insurance, lack of a driver's license and revoked or suspended licenses. The officers were not to randomly stop some motorists but instead were to stop each and every approaching motorist and require him or her to pass through the checkpoint.

On September 10, 1993, Peoria Police officers were conducting a traffic safety check on all cars passing through a certain point on Forest Hills Road in Peoria, Illinois. The officers conducting the checkpoint stop were in uniform and their squad cars were pulled off the road onto the grass. When cars approached the officers would hold up their hands indicating to motorists that they were required to stop. Because this checkpoint was conducted on a lightly-traveled road, the longest backup at any time was only four to five vehicles, with an average wait of approximately three to five minutes for each car.

When it grew dark the officers signalled to incoming motorists with their flashlights. It was at this time that Trevino came upon the checkpoint. Trevino stopped his car approximately fifty feet from the checkpoint area and pulled his car along the road's shoulder. One of the officers conducting the stop, Officer King, noticed Trevino's behavior which he thought unusual. King approached Trevino's vehicle, motioning with his flashlight to pull the vehicle forward. When Trevino pulled up, Officer King asked him whether he had a driver's license, to which Trevino replied "no." Trevino did hand King a state of Illinois identification card naming him as David Ortiz. King requested proof of insurance, to which Trevino replied that he had none and that he was merely test-driving the car for the purpose of possibly purchasing it. King placed Trevino under arrest for driving without a license and proof of insurance.

Pursuant to the City of Peoria's standard rules and procedures, Trevino's car was subjected to a pre-tow inventory search. The officer conducting the inventory search noticed on the front seat a white powdery substance which he believed to be cocaine. The officer next inventoried the trunk. Upon opening the lid the officer was confronted by an overwhelming smell of marijuana. Inside the trunk were two large garbage bags. The officer opened the bags and observed what he believed was marijuana. He called over two officers to test the substance which turned out to be marijuana. The car was then towed to the police garage. At the garage a further search of the bags resulted in the discovery of one ounce of cocaine.

A few days after the car had been impounded, officers received an anonymous tip that there were still large amounts of money and drugs located in Trevino's car. The police employed a police dog who reacted in such a manner to alert the officers that drugs were in the car. Based on the tip and the dog "sniff" the officers obtained a warrant to search the car. This search revealed a secret compartment in the car's interior, in which were found a .380 pistol with 45 rounds of ammunition, and a plastic bag containing 12 individually wrapped one-ounce packages of cocaine, along with $9,110 in cash separated into four small freezer bags. Trevino's fingerprints were found on three of the four baggies containing the cash.

Trevino was charged with one count of possession with intent to distribute cocaine and one count of possession with intent to distribute marijuana. Before trial, Trevino filed a motion to suppress the evidence obtained from his car on the grounds that the checkpoint stop violated the Fourth Amendment. Following a hearing, the district court denied the motion.

Trevino proceeded to a jury trial during which he renewed his motion to suppress which the district court again denied. Following trial, the jury convicted him on both counts in the indictment. Trevino filed a post-trial motion, raising the suppression issue; the district court denied this motion too. The court sentenced Trevino to a prison term of 68 months followed by three years of supervised release.

II.

A. Motion to Suppress

Trevino claims that all the evidence obtained from the vehicle should be suppressed because it was the result of an unconstitutional checkpoint stop. His main complaint apparently is that the stop took him by surprise and was therefore unreasonably intrusive under the Fourth Amendment.

In reviewing a district court's ruling on a motion to suppress, we review questions of law de novo. United States v. Baker, 47 F.3d 691, 692 (5th Cir.1995). Any factual findings are reviewable for clear error. United States v. Tilmon, 19 F.3d 1221, 1223 (7th Cir.1994). "A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made." Id. at 1224. For purposes of our review the "entire evidence" consists of evidence introduced both at the suppression hearing and at the trial itself. Id.

We start with a brief overview of the general Fourth Amendment law that comes into play when analyzing the constitutionality of checkpoint stops. There is no question that stopping a vehicle at a checkpoint constitutes a seizure within the meaning of the Fourth Amendment. Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 450, 110 S.Ct. 2481, 2485, 110 L.Ed.2d 412 (1990). Constitutional challenges to this type of seizure turn on whether the initial stop at the checkpoint was reasonable. Id. This in turn requires a balance of the intrusion on the individual's Fourth Amendment rights occasioned by the initial stop against its promotion of legitimate governmental interests. Sitz, 496 U.S. at 449-50, 110 S.Ct. at 2484-85; Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). In performing this balance the Supreme Court has stated that we must consider both the "objective intrusion" of the seizure--the duration of the stop itself and the intensity of any brief questioning and visual inspection that might attend it, Sitz, 496 U.S. at 452, 110 S.Ct. at 2486--and its "subjective intrusion"--its potential for generating fear and surprise to law-abiding motorists. Id.

Trevino raises no challenge to the State's proffered reasons for conducting the stop, namely, its interests in detecting automobile equipment violations and in preventing uninsured or unlicensed motorists from operating their vehicles on the public roads and highways. Nor does he challenge the level of objective intrusion occasioned by the stop. Rather, he focuses exclusively on what he perceives as the high degree of subjective intrusion brought about by the circumstances surrounding this checkpoint and which in his opinion were not adequately considered by the district court in denying suppression. To hear Trevino describe it, while travelling at night on a seldom-traveled, unlit road, he came upon a group of people standing in the road motioning at him with their flashlights. Because there were no warning signs, barricades, flashing lights, flares, or squad car emergency lights, he claims that for all he knew he had come upon a band of highwaymen, not an official police checkpoint stop. He claims that the absence of any devices indicating an approaching checkpoint stop created such a high risk of engendering fear and surprise in the average law-abiding motorist that it was too subjectively intrusive to pass muster under the Fourth Amendment.

In making this argument, Trevino cites us to United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). In that case, a checkpoint stop to detect the presence of illegal aliens was located on a major highway near the Mexican border. Starting approximately a mile before reaching the checkpoint, motorists encountered large signs with flashing lights over the highway indicating that all approaching vehicles were required to stop at the U.S. Border Patrol station. Placed on the highway before the checkpoint were orange traffic cones funneling all motorists into two lanes where a uniformed Border Patrol agent checked all incoming motorists. In the other two lanes were official Border Patrol cars with flashing red lights. Trevino suggests that it was the presence of these various physical devices indicating to incoming motorists that they were approaching an official checkpoint which caused the Court in Martinez-Fuerte to hold that the Border Patrol checkpoint was valid under the Fourth Amendment. He submits that the absence of such devices here renders this checkpoint stop unconstitutional.

But the fact...