United States v. Raymond Lopez-Diaz

Raymond Lopez-Diaz appeals from his conviction of possession of cocaine with intent to distribute, 21 U.S.C. § 841 (a), 18 U.S.C. § 2 . He contends that incriminating *663 statements made after his arrest were elicited in violation of his Miranda rights. We reverse.

I. STATEMENT OF FACTS

On December 21, 1978, an unidentified informant told Special Agent Van Horn of the Drug Enforcement Administration (DEA) that Ralph Cawley would be returning to Salem, Oregon, in possession of heroin. Van Horn asked Detectives Wan and Weber of the Marion County Sheriff’s Office to maintain surveillance of Cawley’s house and to search his van upon its arrival.

Cawley arrived in Salem at 1:40 a. m. on December 22, accompanied by appellant Lopez-Diaz. Detectives Wan and Weber frisked and handcuffed them and read them their Miranda rights from a prepared card. Cawley consented to a search of the van which belonged to his wife. In the back of the van, Wan found two pillow cases, one inserted inside the other. The inner pillow case contained Lopez-Diaz’s personal belongings. Between the two cases Wan discovered a ball of tin foil containing packets of heroin and cocaine.

At approximately 2:00 a. m.,…

dissenting:

The central issue in this appeal is whether appellant, while aware of his Miranda rights, knowingly, intelligently, and voluntarily waived those rights. Fully recognizing that the government bears a heavy burden in demonstrating that appellant waived his rights, United States v. Pheaster, 544 F.2d 353, 368 (CA9 1976), cert. denied 429 U.S. 1099 , 97 S.Ct. 1118 , 51 L.Ed.2d 546 (1977), I also recognize that a trial court’s finding of such a waiver must not be overturned unless clearly erroneous, e.g., United States v. Glover, 596 F.2d 857, 865 (CA9 1979), cert. denied, 444 U.S. 860 , 100 S.Ct. 124 , 62 L.Ed.2d 80 ; United States v. O’Looney, 544 F.2d 385 (CA9 1976), cert. denied, 429 U.S. 1023 , 97 S.Ct. 642 , 50 L.Ed.2d 625 . 1 Because I do not find clear error in the district court’s decision, I dissent.

On two occasions, law enforcement officers read appellant’s Miranda rights to him from prepared cards. In part, the cards read:

*668 There is no question that these warnings accurately advised appellant of his rights, nor is there any question that appellant fully understood his rights.

It is well settled that, in appropriate circumstances, a waiver of Miranda…

630 F.2d 661 UNITED STATES of America, Plaintiff-Appellee, v. Raymond LOPEZ-DIAZ, Defendant-Appellant. No. 79-1437. United States Court of Appeals, Ninth Circuit. Submitted Dec. 12, 1979. Decided Aug. 8, 1980. Stuart I. Teicher, Portland, Or., for defendant-appellant. Kenneth C. Bauman, Asst. U. S. Atty., Portland, Or., for plaintiff-appellee. Appeal from the United States District Court for the District of Oregon. Before KILKENNY and CHOY, Circuit Judges, and GRANT, * District Judge. CHOY, Circuit Judge: 1 Raymond Lopez-Diaz appeals from his conviction of possession of cocaine with intent to distribute, 21 U.S.C. § 841 (a), 18 U.S.C. § 2 . He contends that incriminating statements made after his arrest were elicited in violation of his Miranda rights. We reverse. I. STATEMENT OF FACTS 2 On December 21, 1978, an unidentified informant told Special Agent Van Horn of the Drug Enforcement Administration (DEA) that Ralph Cawley would be returning to Salem, Oregon, in possession of heroin. Van Horn asked Detectives Wan and Weber of the Marion County Sheriff's Office to maintain surveillance of Cawley's house and to search his van upon its arrival. 3 Cawley arrived in Salem at…