United States v. Okelley

106 F. App'x 577

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 29, 2004
• Docket: No. 03-30110
• Status: Published

Opinion

MEMORANDUM

**

Okelley does not challenge the district court’s holdings that he implicitly gave consent to search his bags by checking them for the flight and that he explicitly gave consent to Sgt. Gallagher after the x-ray machine had identified the gun and loaded magazine in his luggage. We reject Okelley’s argument that these two earlier grants of consent were for a limited duration that did not include the later opening of the bag to remove the gun and magazine. The later search in which the gun was removed was merely a continuation of the original search that Sgt. Gallagher had begun earlier.¹ Thus, the later opening of the bag was covered by the original consent that Okelley does not challenge on appeal. Therefore, there was no Fourth Amendment violation.

The district court properly admitted Okelley’s statements made after he was led to the airport police office but before he was read his Miranda rights. After reviewing all the facts surrounding that period of time, we conclude that “a reasonable innocent person in such circumstances would conclude that after brief questioning” he would be free to leave.² Thus, Okelley was not in custody, and the officers were not then required to inform him of his Miranda rights.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . See Michigan v. Tyler, 436 U.S. 499, 510-11, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978); United States v. Kaplan, 895 F.2d 618, 623 (9th Cir. 1990).

2 . United States v. Bautista, 684 F.2d 1286, 1292 (9th Cir.1982) (internal quotation omitted); see also United States v. Hayden, 260 F.3d 1062, 1066 (9th Cir.2001).