United States v. Oslet Franklin Canseco

465 F.2d 383, 1972 U.S. App. LEXIS 8117
CourtCourt of Appeals for the Fifth Circuit
DecidedAugust 1, 1972
Docket71-2986
StatusPublished
Cited by16 cases

This text of 465 F.2d 383 (United States v. Oslet Franklin Canseco) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Oslet Franklin Canseco, 465 F.2d 383, 1972 U.S. App. LEXIS 8117 (5th Cir. 1972).

Opinion

AINSWORTH, Circuit Judge:

Canseco appeals from his conviction of fraudulently and knowingly importing into the United States approximately 4,479.3 grams of cocaine, in violation of 21 U.S.C. §§ 173, 174.

On appeal Canseco contends that the District Court erred in (1) denying his motion to suppress certain evidence, (2) denying his motion to exclude statements made by him to Customs agents, and (3) denying his motion for a directed verdict of acquittal. Finding no error, we affirm.

United States Customs officials discovered a large quantity of cocaine in a gray unclaimed suitcase in the baggage carousel of Pan-American Airlines, on the evening of February 23, 1971, shortly after the arrival of a commercial Pan-American plane from Quito, Ecuador, to Miami, Florida. The name on the baggage tag attached to the suitcase was not that of any passenger listed on the flight. After having removed the cocaine, a Customs agent placed the suitcase back in the enclosure to wait for a claimant to pick it up. The suitcase was subsequently removed but the individual who retrieved it was not seen. Through a series of circumstances and incidents which followed (which are unnecessary to detail here for the purpose of this appeal) appellant Canseco, a fellow passenger, Betty Jean Joseph, and a porter employed by Pan-American, William Lynch, became suspect. Surveillance of appellant’s two residences, an apartment and a house, was established by Customs agents. Surveillance of the house resulted in the following observations:'

Lynch entered and left the house. Thereafter Betty Jean Joseph entered, carrying a gray suitcase similar to the one from which the narcotics had been removed. Approximately ten minutes later appellant Canseco emerged from the house, entered a vehicle and started to drive off. He proceeded for about a block and was stopped by Customs Agent Allen who pulled his vehicle into the path of Canseco’s car. Agent Allen *385 identified himself and read to appellant a statement of his rights required under Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which appellant said he understood. In response to questioning by Agent Allen, appellant said that he had been a passenger on the Pan-American flight from Ecuador. When asked about the whereabouts of his luggage, he said, “It’s in my home. Do you want to look at it?” Allen said that he did, whereupon appellant led Agents Allen and Buchanan, another Customs official, to his home and into the bedroom. There Allen observed the gray suitcase which he had seen at the airport and told Can-seco that he was under arrest for conspiracy to import cocaine into the United States. Allen and Buchanan then took the suitcase, placed Canseco in the government vehicle, and proceeded to the Customs office at Miami International Airport. There Canseco was asked by McCutcheon, a Special Agent with the Bureau of Customs, if he had been advised of his rights and whether he was aware of them. He answered affirmatively and said that he wanted to relate what had happened. He said that when he arrived at the Customs enclosure he could not locate the gray suitcase. After clearing Customs with two other suitcases, he ran into a friend, William Lynch, the Pan-American porter. Can-seco said he gave the claim check to Lynch who delivered the suitcase to him outside Customs after about two minutes. He said that he had packed all three suitcases. Appellant insisted that his apartment be searched and that a second search be conducted at his house. A consent-to-search form was prepared which appellant signed. A search of the apartment uncovered various narcotics paraphernalia contained in a paper sack.

Appellant contends that since he was not specifically informed of his right to refuse a search, or advised as to what was necessary to procure a search warrant, he did not knowingly and intelligently waive his Fourth Amendment rights, and therefore his consent was invalid. We do not agree.

The record reflects that petitioner was informed of his Miranda, rights and that he fully understood them. Nevertheless, he elected to waive his right to silence. He not only invited the agents to search his premises but later insisted on a second search and executed the consent-to-search form. There is no evidence of any threat or duress which would render either search invalid. To the contrary, the testimony of the government witnesses convinces us of appellant’s willingness to have his premises searched. Where Miranda warnings are adequate, further specific warnings relating to Fourth Amendment search rights are unnecessary to validate the search, particularly where, as here, the searches were initiated as a result of appellant’s unsolicited invitation. See United States v. Noa, 9 Cir., 1971, 443 F.2d 144; United States v. Goosbey, 6 Cir., 1970, 419 F.2d 818; Government of Virgin Islands v. Berne, 3 Cir., 1969, 412 F.2d 1055, cert. denied, 396 U.S. 837, 90 S.Ct. 96, 24 L.Ed.2d 87 (1969); Gorman v. United States, 1 Cir., 1967, 380 F.2d 158.

Likewise, without merit is appellant’s contention that the Trial Court erred in admitting statements made to Customs agents concerning his return flight to the United States from Ecuador. As the basis for this contention, appellant urges that it was incumbent upon the arresting officers to advise him of his Miranda rights at the time that they advised him he was under arrest. Appellant’s argument, in effect, is that the arrest without a second warning at that time of the consequences of incriminating himself is contrary to the holding of Miranda, and that therefore his state--ments should have been excluded. Decisions holding that Miranda warnings come too late are legion. Here, however, appellant makes the converse argument. He complains that the warning was premature.

The import of Miranda, insofar as it relates to this case, is that the *386 warning of the right to remain silent must be made prior to questioning of an individual whose freedom is curtailed by authorities in any significant way. 384 U.S. at 479, 86 S.Ct. at 1630. In determining when an individual’s right to Miranda warnings arises, “[n]o single criterion is necessarily decisive. Instead, each case must be examined to determine whether there were present the compulsive factors with which Miranda was concerned.” United States v. Mon-tos, 5 Cir., 1970, 421 F.2d 215, 223. Under the circumstances, the warnings given by Agent Allen prior to questioning appellant was a proper exercise of good law enforcement tactics. The efficacy of the initial warning was in no way diluted in the short period of time which elapsed between the warning, the arrest, and the statements made by appellant. Cf. United States v.

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Bluebook (online)
465 F.2d 383, 1972 U.S. App. LEXIS 8117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-oslet-franklin-canseco-ca5-1972.