U.S. v. Cheshire
| Decision Date | 16 March 1978 |
| Docket Number | No. 77-5313,77-5313 |
| Citation | 569 F.2d 887 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Alan Kent CHESHIRE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jim Tatum, Houston, Tex. (Court-appointed), for defendant-appellant.
J. A. "Tony" Canales, U. S. Atty., Anna E. Stool, Asst. U. S. Atty., Houston, Tex., Robert A. Berg, Asst. U. S. Atty., Corpus Christi, Tex., George A. Kelt, Jr., James R. Gough, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before THORNBERRY, AINSWORTH, and MORGAN, Circuit Judges.
Alan Kent Cheshire appeals from a conviction for violation of 21 U.S.C.A. § 841(a) (1972), possession of marijuana with intent to distribute. Appellant argues that the conviction is based on illegally obtained evidence. Specifically, appellant contends: (1) use of an electronic beeper to follow the path of an airplane flown by appellant was a search, and that the search was invalid under the fourth amendment because of the failure to obtain a warrant before placing the beeper on the airplane; (2) consent by the plane's owner, from whom appellant leased the plane, was not sufficient to circumvent the warrant requirement. We need not address appellant's first argument because we decide that if there was a search, the owner's consent to the placing of the beeper comes within the third party consent exception to the warrant requirement. On this basis, appellant's conviction is affirmed.
The relevant facts are substantially undisputed. In August, 1976, an abandoned aircraft was found in south Texas, near the Mexican border. A search of the plane revealed firearms, personal records belonging to appellant, and charts indicating flight into Mexico. Further inquiry revealed that the plane had been rented by appellant, who, at that time, was on probation for a narcotics smuggling conviction. Other records found on the plane indicated that defendant had in the past rented an airplane owned by Fort Bend Aviation, a partnership located in Sugarland, Texas. Expecting that appellant would again attempt to rent the plane from Fort Bend, government agents contacted the partners and obtained their consent to the use of the beeper. 1 Shortly thereafter, appellant did inquire about renting the plane, and the beeper was attached at that time. On September 9, 1976, appellant, with a woman introduced as his wife, rented the plane, stating his destination as Corpus Christi. When appellant's plane took off, it was followed by a plane carrying government agents and the electronic tracking equipment. Visual surveillance was maintained until appellant, after having made two stops in Texas, had traveled approximately 100 miles into Mexico. At that point, the government plane returned to Brownsville, Texas, landing at 11:00 p. m. Several hours later, the tracking equipment indicated that appellant was returning to Texas. Using the beeper, the government plane was able to intercept appellant approximately thirty miles inside Mexico. Maintaining visual surveillance, the government agents watched appellant, after engaging in what appeared to be evasive maneuvers, land on a farm road near Refugio, Texas, and remain on the ground a very short time. Government officials in the tracking plane, unable to view appellant's ground activities, called a deputy sheriff for assistance. The area was searched after appellant left, and 320 pounds of marijuana were discovered. Appellant, followed by two other Customs planes, finally landed and abandoned his airplane in a construction area. He was arrested a short time later. Charged with possession of marijuana with intent to distribute, appellant made motions to suppress evidence obtained by the use of the beeper. Following denial of these motions, appellant was tried and convicted, receiving a sentence of two years with a special parole term of three years.
Appellant first contends that the use of the beeper constituted a fourth amendment search. This issue has not been conclusively resolved in this Circuit, having been previously addressed in United States v. Holmes, 537 F.2d 227 (5th Cir. 1976), where this court, sitting en banc, was evenly divided on the search question. However, our treatment of the instant case does not require resolution of the search issue; we merely assume for the sake of discussion that use of the beeper was a search. We express no view on the merits.
From this perspective, we...
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U.S. v. Conroy
...placement of the devices on the vessel rather than on his person does not render its introduction invalid. 8 See also United States v. Cheshire, 5 Cir. 1978, 569 F.2d 887, Cert. denied, 437 U.S. 907, 98 S.Ct. 3097, 57 L.Ed.2d 1138 (consent by owner to installation on a plane he had rented t......
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U.S. v. Butts
...but the court held that the search was reasonable because the plane's owner had consented. Id. at 592. See also United States v. Cheshire, 569 F.2d 887, 888 (5th Cir.1978) (if search occurred, owner's consent to placement of beeper came within third-party consent exception to warrant requir......
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U.S. v. Bailey
...avoided following Holmes in subsequent cases by finding the installation justified by third party consent. See, e. g., United States v. Cheshire, 569 F.2d 887 (5th Cir.), cert. denied, 437 U.S. 907, 98 S.Ct. 3097, 57 L.Ed.2d 1138 (1978); United States v. Abel, 548 F.2d 591 (5th Cir.), cert.......
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U.S. v. Bruneau
...F.2d 32. This court in United States v. Frazier, 538 F.2d 1322, 1324 (8th Cir. 1976), 7 and the Fifth Circuit in United States v. Cheshire, 569 F.2d 887, 888 (5th Cir. 1978), 8 have avoided the issue by resolving the cases presenting this question on other Although it did not explicitly say......
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The Fourth Amendment and General Law.
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