United States v. Kenneth David Cushnie, 488 F.2d 81 (5th Cir. 1973). · Go Syfert
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United States v. Kenneth David Cushnie, 488 F.2d 81 (5th Cir. 1973). Cases Citing This Book View Copy Cite
28 citation events across 9 distinct courts.
Strongest positive: United States v. Barry Jay Antill (ca5, 1980-04-14)
Treatment trajectory · 1975 → 2026 · click a year to view as-of
1975 2000 2026
Top citers, strongest first. 11 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Barry Jay Antill
5th Cir. · 1980 · confidence medium
See also United States v. Worthington, 544 F.2d 1275 , 1280 n.4 (5th Cir. 1977), cert. denied, 434 U.S. 817 , 98 S.Ct. 55 , 54 L.Ed.2d 72 (1978); United States v. Cushnie, 488 F.2d 81, 82 (5th Cir. 1973), cert. denied, 419 U.S. 968 , 95 S.Ct. 233 , 42 L.Ed.2d 184 (1974).
discussed Cited as authority (rule) United States v. Vincent and Barbara Liberti, Movants-Appellees (2×)
2d Cir. · 1980 · confidence medium
See, e. g., United States v. Berenguer, 562 F.2d 206, 210 (2d Cir. 1977); United States v. Griffith, 537 F.2d 900, 903 (7th Cir. 1976); United States v. Cushnie, 488 F.2d 81, 82 (5th Cir. 1973), cert. denied, 419 U.S. 968 , 95 S.Ct. 233 , 42 L.Ed.2d 184 (1974); United States v. Gray, 484 F.2d 352 , 355 n.7 (6th Cir. 1973); but see United States v. Bradshaw, 490 F.2d 1097 , 1101 n.3 (4th Cir. 1974).
cited Cited as authority (rule) United States v. Gilberto Eugenio Carreno and William Russell Bohannon
5th Cir. · 1979 · confidence medium
See also United States v. Juarez, 573 F.2d 267, 274-76 (5th Cir. 1978); United States v. Cushnie, 488 F.2d 81, 82 (5th Cir. 1973).
discussed Cited as authority (rule) United States v. Robert J. Scios A/K/A Robert Schwartz (2×)
D.C. Cir. · 1978 · confidence medium
However, the mere expectation of the presence of some evidence — even assuming arguendo such an expectation was present here — does not preclude application of the “plain view” doctrine, e. g., Coolidge v. New Hampshire, supra, 403 U.S. at 472 , 91 S.Ct. 2022 ; Ker v. California, 374 U.S. 23, 42-43 , 83 S.Ct. 1623 , 10 L.Ed.2d 726 (1963); United States v. Cushnie, 488 F.2d 81, 82 (5th Cir. 1973), cert. denied, 419 U.S. 968 , 95 S.Ct. 233 , 42 L.Ed.2d 184 (1974).
discussed Cited "see" United States v. Gregory James Freeman and David Lyle Boese, A/K/A Dennis Phillip Stevens and David Sterling (2×)
5th Cir. · 1982 · signal: see · confidence high
Id.; United States v. Bolts, 558 F.2d 316, 320 (5th Cir.), cert. denied, 434 U.S. 930 , 98 S.Ct. 417 , 54 L.Ed.2d 290 (1977), and cert. denied, 439 U.S. 898 , 99 S.Ct. 262 , 58 L.Ed.2d 246 (1978); United States v. Worthington, 544 F.2d 1275 , 1280 n.4 (5th Cir. 1977), cert. denied, 434 U.S. 817 , 98 S.Ct. 55 , 54 L.Ed.2d 72 (1978); see United States v. Cushnie, 488 F.2d 81, 82 (5th Cir. 1973), cert. denied, 419 U.S. 968 , 95 S.Ct. 233 , 42 L.Ed.2d 184 (1974).
cited Cited "see" State v. Pepe
Conn. · 1978 · signal: see · confidence high
Ed. 2d 592 ; see United States v. Cushnie, 488 F.2d 81 (5th Cir. 1973), cert. denied, 419 U.S. 968 , 95 S. Ct. 233 , 42 L.
discussed Cited "see" United States v. Charles Lidge Bolts and Joe Dee Hicks
5th Cir. · 1977 · signal: see · confidence high
United States v. Worthington, 5 Cir., 1977, 544 F.2d 1275 , 1280 n.4 [cert. denied - U.S. -, 98 S.Ct. 55 , - L.Ed.3d -]; see United States v. Cushnie, 5 Cir., 1973, 488 F.2d 81 , cert. denied, 419 U.S. 968 , 95 S.Ct. 233 , 42 L.Ed.2d 184 (1974).
discussed Cited "see" United States v. James Lee Worthington (2×)
5th Cir. · 1977 · signal: see · confidence high
See United States v. Cushnie, 5 Cir. 1973, 488 F.2d 81, 82 , cert. denied 1974, 419 U.S. 968 , 95 S.Ct. 233 , 42 L.Ed.2d 184 . .
discussed Cited "see" Brooks v. United States
D.C. · 1976 · signal: see · confidence high
See United States v. Cushnie, 488 F.2d 81 (5th Cir. 1973), cert. denied, 419 U.S. 968 , 95 S.Ct. 233 , 42 L.Ed.2d 184 (1974); United States v. Sheard, 154 U.S.App.D.C. 9, 13-14 , 473 F.2d 139, 143-44 (1972), cert. denied, 412 U.S. 943, 93 S.Ct. 2784 , 37 L.Ed.2d 404 (1973). 16 .
discussed Cited "see, e.g." State v. Cote
N.H. · 1985 · signal: see also · confidence medium
Mich., S.D., 1974), aff’d, 516 F.2d 902 (6th Cir. 1975); see also United States v. Cushnie, 488 F.2d 81, 82 (5th Cir. 1973), cert. denied, 419 U.S. 968 (1974) (because police did not have a reasonable opportunity to obtain a warrant, seizure held inadvertent despite prior existence of probable cause to search).
discussed Cited "see, e.g." State v. Preston
Mo. Ct. App. · 1979 · signal: see also · confidence low
What Coolidge proscribes is an anticipated discovery, where the police know in advance the location of the evidence and intend to seize it.” United States v. Bolts, 558 F.2d 316, 320 (1977); See also United States v. Worthington, 544 F.2d 1275, 1280 (1977) and United States v. Cushnie, 488 F.2d 81, 82 (1973).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Kenneth David CUSHNIE, Defendant-Appellant
73-1902.
Court of Appeals for the Fifth Circuit.
Dec 11, 1973.
488 F.2d 81
Roger W. Jordan, Metairie, La. (Court-appointed), for defendant-appellant., Gerald J. Gallinghouse, U. S. Atty., Stephen A. Mayo, Asst. U. S. Atty., New Orleans, La., for plaintiff-appellee.
Goldberg, Per Curiam, Roney, Thornberry.
Cited by 25 opinions  |  Published
PER CURIAM:

Defendant appeals from his conviction for possession of marijuana with intent to distribute, a violation of 21 U. S.C. § 841(a)(1). There is only one issue raised on appeal, as indeed there has[*82] been only one issue in- the case from its inception. Defendant contends that the marijuana introduced into evidence at the trial was seized in violation of the Fourth Amendment, and that the trial court should, therefore, have granted the motion to suppress. Finding that -the evidence was in plain view of the officers at the time they lawfully arrested defendant, we affirm the action of the court below.

Defendant attempts to characterize the question as one involving an initial illegal search and subsequent arrest. However, the record clearly reveals that agents of the New Orleans Police and the United States Customs Patrol proceeded to defendant’s hotel and entered his room for the purpose of making an arrest on the basis of probable cause, approaching a certainty, for the belief that felonies under state and federal law had been and were being committed. [1] Though warrantless, the entry for the arrest was amply justified by the exigencies of the moment, which included clear indications that defendant was preparing to flee. Once inside the room, the agents observed an open suitcase full of marijuana.

The plain view doctrine' validating warrantless seizures requires that the discovery be made inadvertently by officers legitimately on the premises. Coolidge v. New Hampshire, 1971, 403 U.S. 443, 466, 91 S.Ct. 2022, 29 L.Ed.2d 564. It might be argued here that, by the very nature of the suspected crimes, the narcotics agents expected to locate marijuana in the room, and that this expectation destroyed the necessary inadvertence. However, where, as in this case, the original entry is clearly for the purpose of making an arrest, the need for immediate apprehension makes application for an accompanying warrant impractical, and the item seized is easily destroyed contraband, the expectation that such evidence will be discovered does not preclude operation of the plain view exception to the warrant requirement. Coolidge v. New Hampshire, supra, at 472 & n. 28, 91 S.Ct. 2022; Ker v. California, 1963, 374 U.S. 23, 42-43, 83 S.Ct. 1623, 10 L.Ed.2d 726.

Affirmed.

1

. The agents had been informed by a New Orleans cab driver that a suitcase picked up by defendant and two companions at the Galvez Street Wharf had leaked a certain brown grasslike substance onto the back seat while defendant was removing the valise from the cab. Police inspection revealed that the substance was marijuana. On approaching the suspect’s hotel room, the agents were met by the strong aroma of marijuana.