Unpublished Disposition, 928 F.2d 409 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 928 F.2d 409 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Daryl Clinton OWENS, Defendant-Appellant.

No. 90-30210.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 7, 1991.Decided March 13, 1991.

Appeal From the United States District Court for the District of Oregon, No. CR 89-60068 JAR; James A. Redden, District Judge, Presiding.

D. Or.




We reject Owens' claim that co-defendant Miles' consent to the search of the personal stereo was tainted because the police failed to warn Miles of his Miranda rights prior to obtaining consent. Precisely the same claim was raised and rejected in United States v. Ritter, 752 F.2d 435, 438 (9th Cir. 1985). All that is required is that the consent be voluntary. Id. at 439 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973)). Whether Miranda warnings are given is one factor in determining whether consent is voluntary, but it is not dispositive. Id. We see no indication on this record that Miles' consent was involuntary within the meaning of Ritter and Schneckloth.

United States v. Delgadillo-Velasquez, 856 F.2d 1292 (9th Cir. 1988), relied upon by Owens, is inapposite. The Delgadillo court held only that consent to search may be tainted if obtained after an illegal arrest. Id. at 1299-1300. Here, there is neither allegation nor proof of an illegal arrest.

Owens' contention, raised at oral argument, that Miles did not have authority to consent to the search is meritless. The district court expressly found Miles had both actual and apparent authority to consent. In light of Miles' repeated assertions of ownership to the investigating officers, this finding was not clearly erroneous.

Owens' equal protection claim is also without merit. The record reveals no evidence that minorities tend to be involved in the distribution of crack cocaine while whites tend to be involved in the distribution of powder cocaine. In any event, Owens has made no showing that the federal government intended to discriminate against minorities in establishing more severe penalties for the distribution of crack cocaine than for the distribution of powder cocaine. See Washington v. Davis, 426 U.S. 229, 239 (1976).



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3