Unpublished Disposition, 930 F.2d 29 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Reginald Leon CHEATEM, Defendant-Appellant.

No. 90-50175.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 2, 1991.Decided April 5, 1991.

Before SCHROEDER and REINHARDT, Circuit Judges, and KING,^*  District Judge.

MEMORANDUM^** 

Reginald Leon Cheatem appeals his conviction, following a conditional guilty plea, on one count of possession with intent to distribute 1,976 grams of cocaine in violation of 21 U.S.C. § 841(a) (1). Cheatem contends that the district court erred by denying his motion to suppress the evidence because he neither abandoned his suitcase nor consented to its search, and thus the warrantless search was illegal. We have jurisdiction under 28 U.S.C. § 1291 and we reverse and remand for factual findings on the issue of abandonment or consent to search.

Federal Rule of Criminal Procedure 12(e) requires that "where factual issues are involved in determining a motion, the court shall state its essential findings on the record." The function of determining the facts rests with the district court rather than with the court of appeal. Murray v. United States, 487 U.S. 533, 543-44 (1988); United States v. Prieto-Villa, 910 F.2d 601, 608 (9th Cir. 1990). Therefore, the district court must put its essential factual findings on the record. Prieto-Villa, 910 F.2d at 610. "Essential factual findings are those which will permit appellate review of the legal questions involved," and "the district court should be sure to make explicit those facts upon which its conclusions rest." Id.

Here, the district court mentioned that the abandonment of the suitcase was at issue but concluded only that the stop and questioning of Cheatem was proper. Without explicit factual findings on the record essential to a determination of abandonment of the suitcase, or Cheatem's consent to search it, we are unable to review the denial of the motion to suppress. See Prieto-Villa, 910 F.2d at 610. Therefore, we reverse the denial of the motion to suppress and remand for the district court to make findings consistent with this memorandum. See id.

REVERSED AND REMANDED.