United States v. Almanzar

• Court: Court of Appeals for the First Circuit
• Decided: May 20, 1992
• Docket: 91-2322
• Status: Published

Opinion

USCA1 Opinion

May 20, 1992
                                [NOT FOR PUBLICATION]

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No. 91-2322

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                 ODINA FANA ALMANZAR,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

[Hon. Joseph L. Tauro, U.S. District Judge]
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                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
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                           Campbell, Senior Circuit Judge,
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                                Selya, Circuit Judge.
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            Joseph  A. Bevilacqua,  Jr. and  William  J.  Murphy on  brief for
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        appellant.
            Lincoln C. Almond,  United States Attorney, and Zechariah  Chafee,
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        Assistant United States Attorney, on brief for appellee.

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Per Curiam.   Defendant's actions,  as observed  by
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            Detective Lennon, gave  rise to a  reasonable suspicion  that

            defendant  was engaged  in drug  trafficking.   Consequently,

            Detective  Lennon was  justified  in  stopping defendant  and

            briefly questioning him.

                      We agree with the district court  that the stop was

            a  Terry investigative  stop.   The fact  that, in  the brief
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            interlude between the stop and the alleged consent to search,

            Officer Lennon did not return to defendant what turned out to

            have been keys  seized from defendant's closed  fist does not

            constitute a de facto arrest requiring Miranda warnings.  The
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            situation was less coercive than that facing the defendant in

            United States v. Quinn,  815 F.2d 153 (1st Cir.  1987), where
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            this court concluded defendant  was not in custody and  that,

            hence, Miranda warnings were not required.
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                      Whether   defendant  understood   Officer  Lennon's

            request to search defendant's  apartment presented a  classic

            credibility  issue,  and  we  see  no  basis  to  disturb the

            district court's resolution.

                      On  the record  before it,  the district  court was

            justified in concluding that defendant understood the request

            to search, that defendant consented to the  request, and that

            the surrounding circumstances were  not coercive.  We do  not

            find  United States  v. Gallego-Zapata,  630 F.Supp.  665 (D.
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            Mass. 1986),  persuasive  or  controlling  on  the  facts  as

            permissibly found by  the district court.   Moreover,  unlike

            the   situation  in   Gallego-Zapata,  where   defendant  was
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unlawfully detained at  the time  he assented  to the  search

            request, the consent in the present case was given during the

            course of a lawful Terry stop.
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                      Affirmed.
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