Opinion
8:02CR46
July 12, 2002
MEMORANDUM AND ORDER
Introduction
Before me is the objection of defendant Darryl Winborn, Filing No. 24, to the magistrate's report and recommendation, Filing No. 22, in which the magistrate recommends that this court deny defendant Winborn's motion to suppress statements, Filing No. 13, and motion to suppress evidence, Filing No. 14. Winborn is charged with one count of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846, and one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1).
In his motion to suppress, the defendant contends that, without consent, reasonable suspicion, probable cause, or a warrant, officers at the Greyhound Bus Depot unlawfully manipulated his luggage. Defendant contends that such manipulation constituted an unlawful search. Defendant also argues that his subsequent contact with officers was not consensual and was the result of the earlier unlawful search of the bag. Finally, defendant challenges the admissibility of statements made after his arrest. I have reviewed the record, including the report and recommendation of the magistrate and the transcript of the motion to suppress hearing, Filing No. 19 (hereafter, TR), the defendant's objection, as well as the parties' briefs and the applicable law. I find that the report and recommendation should be adopted in part, and that the defendant's motions to suppress should be denied.
Factual Background
On January 24, 2002, Nebraska State Patrol Investigator Richard Lutter and other members of the Commercial Interdiction Unit were at the Omaha Greyhound Bus Depot. TR 6:10-12, 9:11-13. Lutter had been with the Nebraska State Patrol working as a narcotics investigator assigned to the commercial interdiction unit. TR 6:16-18. The officers were to generally watch buses traveling from the west coast to the east coast. TR 9:1-2. Lutter noted that because of the increased security at airports in response to the events of September 11, 2001, fewer drug couriers were using air transportation. TR 10:8-14. Therefore, he stated that he believed that drug couriers had resorted to transporting narcotics through buses more frequently. TR 10:15-18.
The bus upon which Mr. Winborn was traveling originated in Los Angeles, California, and its ultimate destination was New York. TR 10:24-11:1. Because the bus was refueling, all of the passengers were required to get off the bus. TR 11:2-6, 23:18-19. The members of the Commercial Interdiction Unit who were not in police uniform examined the checked luggage in the undercarriage of the bus as the passengers were coming off the bus. TR 11:10-17.
While checking one of the "bays" underneath the bus, Officer Lutter found only one suitcase in a particular bay. TR 37:13-15. The only identification on the bag was a computerized tag printed at the Greyhound bus station. TR 14:1-2. The computerized tag contained the name of the passenger, a list of information of where the luggage was traveling to and from, a bar code, and numbers that associate the bag with the claim check ticket. TR 14:2-6. Lutter testified that such limited identification is unusual because the general traveler typically has a great deal of identification on his or her luggage. TR 12:23-13:2.
Officer Lutter testified that the bag was laying down in the compartment, and the soft sides had collapsed into the bag, suggesting that it was not full. TR 15:6-8. The bag was a new, Samsonite suitcase, which had a hard bottom and a soft top. TR 15:1-3. Officer Lutter lifted the bag by its handle and noticed that it was excessively heavy, which he thought was unusual given its appearance. TR 38:19-22. After he observed the bag, Lutter leaned into the bay and placed his hand on the top of the bag so he could maintain his balance to look at the bags on the back side of the bin. TR 16:2-5. Lutter noticed that there was an odor emanating from the bag. TR 16:2. However, Lutter stated that the odor was not a recognizable odor of narcotics. TR 40:3-4. Lutter then looked at the bag again and noticed that the bag was coming from what he termed a source area, San Jacedro, California, and its final destination was New York. TR 16:23-17:3.
Lutter then asked Officer Morgan and Investigator Eberly to look at the bag. TR 17:9-12. As the officers came to Lutter's location, Lutter noticed a man standing ten to fifteen feet away watching Lutter's contact with the bag. TR 17:12-16. After the other officers joined him, Lutter pointed out the bag to Morgan and Eberly. TR 18:21-22. Eberly lifted the bag by its handle, and noticed its weight. TR 18:22-24. The officers then debated as to whether "running a dog on the bag" would be appropriate. TR 19:6-8. Lutter again looked over his shoulder to find the defendant still watching him. TR 19:11-12. Lutter made eye contact with the defendant, and the defendant began to walk away. TR:19:12-14. Lutter then approached the defendant and informed him that he was a law enforcement officer and that he was not under arrest. TR 20:5-7. Lutter asked the defendant if he would be willing to speak with Lutter. TR 20:8-9. The defendant said, "okay," and produced a veteran's identification card in the name of Darryl Winborn. TR 20:14-18.
Lutter asked Winborn where he was going to and coming from. TR 20:20-21. Winborn stated that he was coming from California and was going to New York. TR 20:21-23. Winborn then displayed to Lutter his ticket, which was a one-way ticket paid for in cash. TR 21:1-7. Lutter informed the defendant that he was a law enforcement officer working the Greyhound bus station. TR 21:19-20. He told the defendant that his purpose for being there was to locate people possibly transporting illegal narcotics, and he asked Winborn if he had anything like that with him. TR 21:20-23. Winborn stated that he did not. TR 21:23. Lutter then asked if Winborn had any luggage with him and Winborn stated that he had a bag checked underneath. TR 21:23-25. Lutter asked if his bag was the one that the officers had been examining and Winborn said that it was. TR 22:2-5. Lutter asked Winborn if he could search the bag. TR 22:8-11. Winborn consented and appeared to Lutter as coherent and cooperative. TR 23:6-15. Lutter testified that he made no promises or threats in order to obtain the defendant's permission to search the bag. TR 22:24-23:5.
After permission for the search was granted, the bus was moved to the refueling area. TR 23:16-19. The men waited for the bus to be parked before they approached the luggage. TR 23:19-21. Lutter opened the first luggage compartment, and Winborn pointed to the bag and said that it was his. TR 23:23-24:1. Lutter then removed the bag from the luggage compartment and opened the bag as he sat on the ground. TR 24:3-5. Lutter found a limited amount of clothing within the bag. TR 24:7. Lutter found four pairs of pants, three shirts, and two pairs of sports briefs. TR 24:11-13. Lutter noticed that when he placed his hand on the interior bottom of the bag, his hand was several inches above the exterior bottom which was sitting on the ground. TR 24:20-25. Lutter estimated the difference to be approximately two to three inches between the interior bottom and the exterior bottom. TR 25:5-6.
Lutter then removed the clothing and determined that the weight of the bag was excessively heavy after the removal of the clothing. TR 25:10-11. Lutter located a zipper for an interior cloth lining of the bag and began to unzip the secured lining when Winborn approached Lutter. TR 25:11-26:3. Winborn told Lutter it was not necessary to break or tear up his bag. TR 26:3-4. After making the statement, Winborn took two to three steps away from Lutter. TR 26:10-11. Winborn began moving around as Lutter continued to unzip the liner. TR 26:11-13. After he had unzipped roughly eight inches of the liner, Lutter saw the plastic bottom of the suitcase and noticed that it was cracked. TR 26:16-21. Lutter observed a white line around the upper edge that had been filled in with something similar to hot glue or a silicone caulk. TR 26:21-23. Lutter concluded that the filling and condition of the bottom was not consistent with the rest of the bag. TR 26:20-23. Lutter asked Winborn if he was willing to go into the rear luggage room of the terminal so that Lutter could continue the search of the bag and determine what was underneath the inside bottom of the bag. TR 27:10-13. Winborn agreed to do so. TR 27:14-15. While inside the terminal, Lutter was able to lift the interior of the suitcase away from the actual bottom. TR 28:3-6. Lutter observed a kilo-sized brick, which he believed to be a controlled substance. TR 28:6-7. Winborn was placed under arrest and was placed in a chair in the rear luggage room. TR 28:16-19. While at the chair in the rear luggage room, Winborn asked Lutter how they caught him. TR 29:5-7. The officers removed a total of six packages that tested positive for cocaine. TR 29:22-23. Four packages were one kilo-size and two packages appeared to be one-half kilo size. TR 29:15-19. Winborn was then transported to the Nebraska State Patrol traffic office at 108th and J Street in Omaha for interrogation. TR 30:3-4.
Winborn was interviewed by Nebraska State Patrol Sergeant Dan Doggett, who was at the time of the arrest the Drug Interdiction Coordinator and the Nebraska State Patrol's liaison to the Drug Enforcement Administration office. TR 31:6-9, 48:1-13. Doggett coordinates the two agencies' work and drug conspiracies and money laundering. TR 48:13-15. Through the use of the advice of rights form, Filing No. 19, Ex. 1, Winborn was read and advised of his Miranda rights while he was at the Nebraska State Patrol Office. TR 52:1-4. Winborn responded that he understood each right and his response was written down after each right was read. TR 52:23-53-2. Winborn was then read the waiver of rights and Winborn, Investigator Eberly, Sergeant Doggett all signed the document. TR 53:8-18.
Doggett then began his interrogation in the presence of Investigator Alan Eberly. TR 50:18-19. Doggett testified that during the investigation, no promises or threats were made to Winborn and he appeared to be calm, rational, and was not intoxicated. TR 50:20-51:7. Doggett testified that Winborn did not ask for an attorney or ask for the questioning to end at any time during the interrogation. TR 55:1-6. Doggett testified that Winborn stated he had made previous trips transporting cocaine and that he was generally paid around $3,000 a trip. TR 56:8-10. On the other trips, however, the cocaine hidden in his suitcase did not weigh as much as it did on this trip. TR 56:19-20.
Discussion Search
The Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ." A traveler's personal luggage is clearly an "effect" protected by the Amendment. United States v. Place, 462 U.S. 696, 707 (1983). A defendant moving to suppress evidence on the basis of an unlawful search bears the burden of proving that he had a legitimate expectation of privacy that was violated by the challenged search. United States v. Muhammed, 58 F.3d 353, 355 (8th Cir. 1995). The government asserts that the search of the luggage was consensual and the officer did not detain or search the luggage until the defendant gave the officer permission to do so.
Individuals possess a privacy interest in the contents of their personal luggage that is protected by the Fourth Amendment. See United States v. Place, 462 U.S. 696, 707, 77 L.Ed.2d 110, 103 S.Ct. 2637 (1983); United States v. Nicholson, 144 F.3d 632, 636 (10th Cir. 1998). To establish a legitimate expectation of privacy, the defendant must demonstrate: (1) a subjective expectation of privacy; and (2) that the subjective expectation is one that society is prepared to recognize as objectively reasonable. United States v. Muhammed, 58 F.3d 353, 355 (8th Cir. 1995). Of course, not every intrusion with an individual's luggage constitutes a search within the meaning of the Fourth Amendment. For example, a canine sniff of an individual's luggage does not constitute a search. See United States v. Harvey, 961 F.2d 1361, 1363 (8th Cr. 1992). Similarly, no search occurs when an officer briefly moves luggage from the overhead compartment of a bus to the aisle in order to facilitate a canine sniff. Id. at 1364 (stating that passengers have no objective, reasonable expectation of privacy from such action because it is not uncommon for other passengers or the bus driver to move baggage in order to rearrange and maximize use of compartment space).
The facts of this case resemble those in Bond v. United States, 529 U.S. 334 (2000). In Bond, the court held that a law enforcement officer's physical manipulation of the defendant's carry-on bag on a bus violated the Fourth Amendment. Bond, 529 U.S. at 335. The officer testified that he squeezed the soft luggage which the passengers had placed in the overhead storage space as he walked through the bus. Id. When he squeezed a canvas bag over Bond's seat, the officer noticed that it contained a "brick-like" object. Id. at 336. After Bond admitted that he owned the bag and consented to a search, a brick of methamphetamine was discovered and defendant was arrested. Id. at 336. The court found that the defendant did exhibit an actual expectation of privacy, that is, he sought to preserve the carry-on bag as private. Id. at 337. The court noted that Bond placed his belongings in an opaque bag which he put directly above his seat. Id. at 338. The court next examined whether that individual expectation of privacy is one that society was prepared to recognize as reasonable. Id. "When a bus passenger places a bag in an overhead bin, he expects that other passengers or bus employees may move it for one reason or another. Thus, a bus passenger clearly expects that his bag may be handled. He does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner. But this is exactly what the agent did here." Id. at 338-39. Determining that the "probing tactile examination of [Bond's] carry-on luggage" was a violation of the Fourth Amendment, the court reversed Bond's conviction. Id. at 337.
The facts of this case are also similar to United States v. Gwinn, 191 F.3d 874 (8th Cir. 1999). In Gwinn, the defendant argued the drug interdiction investigator's manipulation of the exterior of his bag while in the overhead compartment of a bus constituted a search within the meaning of the Fourth Amendment and that the search was unlawful because it was conducted without a warrant, consent, probable cause, or even reasonable suspicion. Gwinn, 191 F.3d at 877. The government claimed that feeling the exterior of the defendant's bag was not a search for Fourth Amendment purposes because passengers have no reasonable expectation that bags placed in an overhead compartment will not be subject to such touching. Id. The court in Gwinn determined that the defendant had a subjective expectation that the exterior of his bag, placed on an overhead rack of a train, would not be subjected to physical manipulation by others. Id. at 878.
In deciding whether society would recognize the defendant's expectation of privacy as reasonable, the court in Gwinn stated that the investigator's contact with the defendant's bag went beyond the limited intrusiveness of a canine sniff or the incidental touching of luggage which took place in Harvey. Id. The court stated, "while a passenger can expect that others will perhaps push aside or briefly touch his bag in an attempt to accommodate their own luggage or to maximize storage space, we think that the majority of the traveling public would not expect their luggage, even those pieces placed in an overhead compartment, to be subject to a calculated and thorough squeezing and manipulation of their exteriors." Id. at 879. Unlike a canine sniff or the incidental touching that accompanies the moving of luggage from the overhead, the feeling and manipulation of a bag's exterior involves a much more intrusive and prolonged contact with the piece. Place, 462 U.S. at 707 (finding canine sniff of luggage to be a very limited intrusion that reveals only presence or absence of narcotics.)
In Gwinn, the court did not address whether the officers could have conducted a warrantless search of the exterior of the bag if they had probable cause or reasonable suspicion. Gwinn, 191 F.3d at 879. The court concluded that probable cause or reasonable suspicion did not arise because a bag lacked a name tag. Id. The Eighth Circuit expressed, "we have had `grave doubts about the constitutional propriety' of an officer's conduct when he lifted, manipulated, and felt along the bottom of a bag in the overhead compartment of a Greyhound bus." United States v. Washington, 146 F.3d 536, 537 (8th Cir. 1998). The Tenth Circuit has also held that an unlawful search takes place when officers feel the sides of luggage in the overhead racks of a bus without a warrant, probable cause, reasonable suspicion, or consent. See Nicholson, 144 F.3d at 638-39. The Tenth Circuit emphasized that "the degree of intrusion is the determining factor as to whether an officer's contact with the exterior of luggage constitutes a search under the Fourth Amendment." Id. at 639.
This court concludes that the investigator's manipulation of the defendant's bag constituted an unlawful search because the manipulation occurred without consent, reasonable suspicion, probable cause, or a warrant. The defendant has established a legitimate expectation of privacy. First, the defendant does have a subjective expectation of privacy. As stated above, the court in Gwinn determined that the defendant had a subjective expectation that the exterior of his bag, placed on an overhead rack of a train would not be subjected to physical manipulation by others. Gwinn, 191 F.3d at 878. Here, this court finds that the defendant has a subjective expectation of privacy when his bag is placed in a "bay" underneath a bus. In both situations, the person who placed his or her bag on the bus has an expectation that the luggage will not be subjected to physical manipulation by others. This court concludes that the defendant's subjective expectation is one that society is prepared to recognize as reasonable.
Investigator Lutter's contact with the defendant's bag went beyond the limited intrusiveness of a canine sniff or the incidental touching of luggage. The investigator initially noticed that the bag was coming from California and was going to New York and was marked with limited identification. This court concludes that the destination of the luggage, which investigators considered a drug source area, and the limited identification does not give rise to a reasonable suspicion or probable cause to conduct a search without consent.
This court further finds that Investigator Lutter conducted an unlawful search of the defendant's luggage. Lutter lifted the suitcase to determine the suitcase's weight. TR 38:19-22. After he examined the bag, Lutter leaned into the bay. TR 16:3. He placed his hand on the top of the suitcase because he needed a way of maintaining his balance when he looked at the bags on the back side of the bin. TR 16:3-5. The investigator noticed an odor emanating from the suitcase when he placed his hand on the suitcase. TR 16:5-7. The investigator's acts, lifting and compressing the suitcase, constitute an unlawful search. The investigator did not have a reasonable suspicion or probable cause to warrant lifting or compressing the suitcase. The intent of the compression is not the critical factor in determining whether a search has occurred. Rather, it is the action that was taken by the investigator. The investigator placed his hand on the defendant's suitcase and pressed down on the suitcase after he had moved on to look at other luggage within the bay. TR 26:2-7.
Investigator Lutter was not lifting the suitcase in order to facilitate a canine sniff or to maximize space within the bay. Lutter was trying to determine whether the luggage contained drugs though the physical manipulation of the luggage. Investigator Lutter's manipulation of the defendant's luggage constitutes an unlawful search in violation of the Fourth Amendment because the manipulation occurred without consent, reasonable suspicion, probable cause, or a warrant.
This court is bound by the Eighth Circuit Court of Appeals' reasoning in Gwinn which stated, "While we are not unsympathetic to the uphill task faced by law enforcement in their efforts to curb the flow of illegal narcotics through the nation's channels of commerce, we must guard against the temptation to eviscerate the protections of the Fourth Amendment for the sake of expediency." Gwinn, 191 F.3d at 879.
Consent
The court next considers whether the defendant's consent to the search cured any Fourth Amendment violation. The exclusionary rule prohibits the admission of physical and testimonial evidence gathered illegally. Reinholz, 245 F.3d at 779 (citing Wong Sun v. United States, 371 U.S. 471, 484-88 (1963). There are, however, three exceptions to the exclusionary rule. Reinholz, 245 F.3d 779 (citing United States v. Dickson, 64 F.3d 409, 410 (8th Cir. 1995). Under the "independent source doctrine," the challenged evidence is admissible if it came from a lawful source independent of the illegal conduct. Id. Under the "attenuated connection doctrine," the challenged evidence is admissible if the causal connection between the constitutional violation and the discovery of the evidence is so attenuated as to rid the taint. Id. Under the "inevitable discovery doctrine," the challenged evidence is admissible if it inevitably would have been discovered by lawful means without reference to the police misconduct. Id.When a person gives consent to search, that consent "may, but does not necessarily, dissipate the taint" of a prior Fourth Amendment violation. United States v. Chavez-Villarreal, 3 F.3d 124, 127 (5th Cir. 1993). The admissibility of the challenged evidence "turns on a two-pronged inquiry: 1) whether the consent was voluntarily given; and 2) whether the consent was an independent act of free will." Chavez-Villarreal, 3 F.3d at 127. The first prong of this inquiry "focuses on coercion, the second on causal connection with the constitutional violation." Id. The government bears the burden to prove by a preponderance of the evidence that consent to search was freely given. United States v. Smith, 260 F.3d 922, 924 (8th Cir. 2001) (citing United States v. White, 81 F.3d 775, 780 (8th Cir. 1996)). However, awareness of the right to refuse is not necessary for consent to be voluntary. Smith, 260 F.3d at 924 (citing United States v. Barahona, 990 F.2d 412, 417 (8th Cir. 1993).
This court considers the following characteristics of the individual to determine whether their consent was truly voluntary: age, intelligence, intoxication, advice of Miranda rights, and previous arrests. United States v. Reinholz, 245 F.3d 765, 780 (8th Cir. 2001). This court also considers the following characteristics of the environment in which the individual's consent was given to determine whether their consent was truly voluntary: length of detention, threats and misrepresentations by police, whether the individual is in custody or under arrest, whether it is a public or private place, and the suspect's contemporaneous objections and representations. Reinholz, 245 F.3d at 780. The burden is on the government to show by a preponderance of the evidence that, under the totality of the circumstances, the defendant voluntarily consented. Id.
To determine whether the defendant's consent was an independent act of free will, breaking the causal chain between the consent and the constitutional violation, I must consider three factors: 1) the temporal proximity of the illegal conduct and the consent; 2) the presence of intervening circumstances; and 3) the purpose and the flagrancy of the initial misconduct. United States v. Duffy, 796 F. Supp. 1252 (8th Cir. 1992) (citing Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)).
Turning to the first prong of the test, I conclude that Winborn's consent was voluntarily given. First, Winborn's custodial status was voluntary. Winborn was not in custody when he gave his consent to search his suitcase and Winborn voluntarily engaged in conversation with Lutter. TR 20:5-7. Second, Investigator Lutter's actions were not coercive. There is no evidence in the record to indicate that Lutter threatened Winborn in any way. Third, Winborn was cooperative with the police. Winborn indicated only that it was not necessary to tear his suitcase apart. TR 26:3-4. However, this is not enough to indicate that Winborn was not cooperative and that the consent was not given voluntarily. Fourth, I conclude that it is not clear from the record whether Winborn knew he had the right to refuse consent. There is nothing in the record to indicate that Lutter told Winborn that he did not have to consent to the search. However, awareness of the right to refuse [consent] is not necessary for consent to be voluntary. Smith, 260 F.3d at 924 (citing United States v. Barahona, 990 F.2d 412, 417 (8th Cir. 1993)). Fifth, the record lacks information concerning the defendant's education and intelligence. However, there is nothing in the record to indicate that a lack of education impacted the voluntariness of Winborn's consent. Sixth, the defendant believed that the police would not be able to find any incriminating evidence even after consent was given. His statement to police, "How did you catch me?" indicates Winborn had no reason to believe a search would incriminate himself. TR 29:5-7. Therefore, I conclude that Winborn voluntarily consented to having the drug interdiction unit search his luggage.
Turning to the second prong, I conclude that Winborn's consent to the search was an independent act of free will. To determine whether the causal connection between the constitutional violation and Winborn's conduct was sufficiently broken, we must apply the three factors which were mentioned above. First, there was a close temporal proximity between the illegal search of Winborn's suitcase and his consent to the search. Temporal proximity weighs in favor of voluntariness. United States v. Moreno, 280 F.3d 898, 901 (8th Cir. 2002). The consent to search the luggage was given within minutes of the initial search. Second, there were no intervening circumstances. There is nothing in the record to indicate that there was the presence of an intervening circumstance which led Winborn to consent to the search. Finally, Investigator Lutter's purpose and the flagrancy of the initial misconduct was not enough to deny the curing of Fourth Amendment violation. Lutter was looking for luggage that possibly contained drugs. TR 6:21-7:1. Lutter testified that he put his hand on the bag solely as a way to keep his balance. TR 16:2-5. Although this court considers this conduct an illegal search, I do not consider this to be flagrant misconduct. For these reasons, I hold that Winborn's subsequent consent to search his luggage did cure the violation resulting from Investigator Lutter's prior illegal manipulation of the defendants' suitcase.
Statements
This court next considers the admissibility of Winborn's statements to police officers both before and after his arrest. I must evaluate four factors to determine whether statements made to police after an illegal [search] are admissible: (1) whether the suspect has been advised of his Miranda rights prior to giving his statement; (2) the temporal proximity of his statements to [the investigator's illegal search]; (3) the existence of intervening causes between the illegal [search] and the statements; and (4) the purpose or flagrancy of the official misconduct. Reinholz, 245 F.3d at 779.
This court holds that Winborn's statement, "how did you catch me," is admissible evidence. TR 29:5-7. Turning to the four factors, Winborn was not advised of his Miranda rights at the time the statement was made. However, this statement occurred immediately after his arrest and the statement was volunteered by Winborn. Although Winborn was in custody, he was not the subject of custodial interrogation. This court concludes that the officers were not obligated to advise Winborn of his Miranda rights at that particular time. This court also concludes that there was a close temporal proximity between the illegal search and the statement, there were no intervening circumstances which led to the statement, and that the misconduct of the investigator does not give rise to rejecting the defendant's statement made at the Omaha Greyhound Bus Depot.
This court also holds that Winborn's statements made at the Nebraska State Patrol Office were voluntary. Winborn was read his Miranda rights prior to making his statements at the Nebraska State Patrol Office. TR 52:1-4. This court finds that the statements were made in a sufficient temporal proximity from the time the illegal search was committed. This court also concludes that there were no intervening circumstances that affected the "voluntariness" of Winborn's statements, and that the misconduct of the investigator does not give rise to rejecting the defendant's statements made at the Nebraska State Patrol Office. For these reasons, I hold that Winborn voluntarily engaged in conversation with Investigator Lutter and that the subsequent statements that followed also cured the violation resulting from Investigator Lutter's prior illegal manipulation of the defendants' suitcase.
IT IS ORDERED:
1. The defendant's statement of objection, Filing No. 24, to the magistrate's report and recommendation, Filing No. 22, is overruled;
2. The magistrate's report and recommendation, Filing No. 22, is adopted in part; and
3. The defendant's motion to suppress statements, Filing No. 13, and motion to suppress evidence, Filing No. 14, are denied.