UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-40791
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
GUADALUPE NMI COLUNGA-PEREZ,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(M-96-CR-014-06)
August 15, 1997
Before WISDOM, KING and WIENER, Circuit Judges.
PER CURIAM:*
Guadalupe Colunga-Perez appeals his conviction for
conspiracy to possess with intent to distribute more than 1,000
kilograms of marijuana and possession with intent to distribute
more than 1,000 kilograms of marijuana. The defendant contends
that the district court erred in denying his motion to suppress
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
the marijuana found on his property. He argues that the
officers’ conduct before he was read his Miranda rights and
handcuffed amounted to a warrantless arrest without probable
cause. The defendant maintains that, as a result, his consent to
search was not voluntarily given and the marijuana subsequently
discovered was the fruit of an illegal arrest.
Our review of the district court’s ruling on the motion to
suppress is for clear error. United States v. Gonzales, 79 F.3d
413, 419 (5th Cir.), cert. denied, 117 S.Ct. 183 (1996).
We conclude that the conduct of the officers in this case
did not constitute an arrest before the defendant consented to
the search of his property. Although approximately ten officers
were on the property, only two were near the defendant when he
consented to the search. The officers did not threaten or
physically restrain the defendant. The defendant was informed
that the officers did not have a search warrant and that he had
the right to refuse the request for consent to search the
property. Colunga-Perez signed a written consent form and was
described by the officers as being very cooperative. Finally,
the defendant was not handcuffed until the marijuana had been
confiscated and he had been apprised of his Miranda rights. In
the light of these facts, we are unable to say that the district
court’s ruling was clearly erroneous. See United States v.
Valdiosera-Godinez, 932 F.2d 1093 (5th Cir. 1991).
2
AFFIRMED.
3