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United States v. Tarintino

filed: November 15, 1993.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
EUGENE ANTHONY TARINTINO, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of California. D.C. No. CR-90-1185-01-B. Rudi M. Brewster, District Judge, Presiding

Before: Fletcher, Pregerson, and Norris, Circuit Judges

MEMORANDUM

Appellant Tarintino was convicted by a jury of conspiracy to possess methamphetamine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846, of possession of methamphetamine for distribution, in violation of 21 U.S.C. § 841(a)(1), and of aiding and abetting under 18 U.S.C. § 2. Tarintino argues that his convictions should be reversed on four grounds. We affirm the convictions.

I

Tarintino first claims that the district court erred in failing to suppress the fruits of a traffic stop. He contends that the stop was pretextual.

California Highway Patrol Officer Miguel Lizarraga pulled Tarintino over, issued him a traffic ticket, and confirmed his identity to police. The California Bureau of Narcotics Enforcement subsequently stopped Tarintino, searched his car, found large amounts of cash on his person, and arrested him.

It was undisputed in the district court that the highway patrol had been instructed by the police to "develop their own probable cause to stop" Tarintino. That in itself is not enough to require suppression, however. Officer Lizarraga testified that Tarintino was traveling at 80 miles per hour and that Lizarraga would have pulled the defendant over in any case. The district court found the defendant's rate of speed enough to establish probable cause for the stop.

In United States v. Lillard, 929 F.2d 500, 501-02 (9th Cir. 1991), we rejected a similar claim. Lillard was suspected of manufacturing illegal drugs and was under surveillance. We held that the stop was not pretextual when it resulted from the combination of the facts that the defendant was suspected of manufacturing illegal drugs and was seen speeding. Lillard requires us to reject the defendant's argument.

II

The defendant next claims that the information in the November 21, 1990 search warrant was stale. Because the affidavit detailed eight instances of the defendant's recent involvement in the illegal drug trade, we reject this claim.

III

Defendant next claims that the November 23, 1990 search warrant affidavit contains a material omission which, if included, would have negated the magistrate's finding of probable cause. Appellant claims that the affidavit is missing any reference to the drugs seized during the November 21 search. Had the magistrate known of the seized evidence, Tarintino contends, he would have found no need for an additional search.

The record belies the defendant's contention. Paragraph four of the affidavit expressly discloses the results of the November 21 search. We therefore ...


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