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United States v. Trevino

July 17, 1995

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

v.

LIBRADO TREVINO, ALSO KNOWN AS DAVID ORTIZ,

DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of Illinois, Peoria Division.

No. 93 CR 10073--Michael M. Mihm, Chief Judge.

Before MANION and ROVNER, Circuit Judges, and WILL, District Judge. *fn1

MANION, Circuit Judge.

ARGUED APRIL 10, 1995

DECIDED JULY 17, 1995

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 signaled 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 ...


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