United States v. Schoen, 29672.
| Decision Date | 09 December 1970 |
| Docket Number | No. 29672.,29672. |
| Citation | 434 F.2d 931 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Edward Mathew SCHOEN, III, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Raymond Burger, Oklahoma City, Okl., Gene E. Putnam, Houston, Tex., for defendant-appellant.
Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
Before JONES, GEWIN and CLARK, Circuit Judges.
The defendant, Edward Mathew Schoen, III, was indicted on three counts for receiving and concealing stolen television sets which constituted a part of an interstate shipment.1 After a plea of not guilty, the cause was heard preliminarily on defendant's motion to suppress evidence obtained in separate searches of an automobile leased by the defendant, defendant's home, his office and space he had leased in a warehouse. After hearing lengthy and controverted testimony, the trial court entered findings of fact and concluded that the motion to suppress should be overruled in its entirety. Defendant offered no further proof on the case in chief.
Although an independent attack is made on each search, counsel for defendant, in oral argument before this court, with commendable candor and, we think, legal correctness, states that if the defendant validly consented to the search of his automobile, the determination of guilt and the sentence imposed by the trial court must be affirmed since the evidence obtained from the automobile would have supported the conviction separate and apart from the information come by in the remaining searches.
Our examination of the record discloses that the trial judge was faced with a direct conflict in the testimony of the defendant and Houston (Texas) Police Lieutenant William G. Sanders. Lieutenant Sanders testified that when he asked the defendant for permission to examine the car, the defendant asked if he had to agree, to which Lieutenant Sanders replied that he did not and that a search warrant could be obtained by the police. Lieutenant Sanders further testified that his response provoked a statement from the defendant to the effect that, "There is no need in that."; with which words the defendant obtained the keys from his mother or grandmother and unlocked the car for the police, thereupon disclosing to them equipment and documents that were sought to be suppressed.
It is the contention of the defendant in this court that we must regard the testimony of Lieutenant...
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Colson v. Smith, 28943.
...course, will not disturb except on a showing of clear error. United States v. Saunders, 5th Cir. 1970, 435 F.2d 683; United States v. Schoen, 5th Cir. 1970, 434 F.2d 931; Bickers v. Cranford, 5th Cir. 1970, 433 F.2d 955. In this case, however, we go beyond the traditional principles of rest......
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Luckett v. State
...may choose to believe or disbelieve any or all of the witness's testimony. Clark v. State, Tex.Cr.App., 548 S.W.2d 888. See also U. S. v. Schoen, 434 F.2d 931, Cert. denied, 404 U.S. 845, 92 S.Ct. 147, 30 L.Ed.2d 82 (5th Cir. Second, a recent Supreme Court opinion has addressed a driver's l......