United States v. Jeffrey Dean Ocheltree

622 F.2d 992 UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey Dean OCHELTREE, Defendant-Appellant. No. 79-1542. United States Court of Appeals, Ninth Circuit. July 3, 1980. As Modified on Denial of Rehearing Sept. 24, 1980. Stephen E. Hoffman, Frank & Milchen, San Diego, Cal., argued, for defendant-appellant; Howard B. Frank, San Diego, Cal., on brief. Peter K. Nunez, Asst. U.S. Atty. (on the brief), Michael H. Walsh, U.S. Atty., Peter K. Nunez, Asst. U.S. Atty. (argued), San Diego, Cal., for plaintiff-appellee. On Appeal from the United States District Court for the Southern District of California. Before MERRILL and FERGUSON, Circuit Judges, and SMITH, * District Judge. MERRILL, Circuit Judge: 1 Appellant was convicted of possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841 (a)(1). In the court below he sought unsuccessfully to suppress certain evidence as the fruit of an unlawful search. He then waived jury trial and consented to have the question of guilt decided on the basis of the evidence received on motion to suppress. We agree with appellant that the motion to suppress should have been granted. 2 Appellant and a…

Appellant was convicted of possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841 (a)(1). In the court below he sought unsuccessfully to suppress certain evidence as the fruit of an unlawful search. He then waived jury trial and consented to have the question of guilt decided on the basis of the evidence received on motion to suppress. We agree with appellant that the motion to suppress should have been granted.

Appellant and a codefendant arriving on a flight to San Diego had aroused the suspicions of Drug Enforcement Administration agents at the airport and had been placed under surveillance. On their return to the airport the following day, they purchased flight tickets, checked two suitcases and then were stopped, each by a separate agent. When appellant was stopped the agent identified himself as a police officer, advised that he was conducting a narcotics investigation and asked appellant if he had any objections to accompanying the officer to his office for a talk. Appellant responded that he didn’t mind. They walked to the office — a walk of a minute or two — with appellant carrying a briefcase. In the office the agent asked…

dissenting.

I dissent.

The clearly erroneous rule governs the review of an order of the district court denying a motion to suppress, 1 even where the district court makes no express findings but simply denies the motion.

The evidence bearing upon the validity of the search is contained in the testimony about the exchange between the Drug Enforcement Agent and Ocheltree, as follows:

I find in this no direct threat to detain Ocheltree. Perhaps he thought that if he did not consent he would be detained while a search warrant was being obtained, and the inference drawn by the majority is a permissible inference. On the other hand, there were other equally permissible inferences. The record would support a trial judge’s conclusion that Ocheltree knew he had been followed before he was stopped, and when asked to consent, the following considerations could have run through his mind: that if he did not consent he would be permitted to leave; that he would be followed again; that his chances of disposing of the incriminating briefcase were slight; that a consent to a search would evidence cooperation on his part and result in leniency somewhere along the line. If these inferences…