Opinion
No. CR00-3014-MWB
July 14, 2000.
REPORT AND RECOMMENDATION ON MOTIONS TO SUPPRESS
I. INTRODUCTION
This matter is before the Court on two pending motions. The first is defendant Moreno's Motion for Suppression of Wiretaps, Oral Communications or Other Electronic Eavesdropping (Doc. No. 26), supported by a brief (Doc. No. 27). The second is the defendants' Motion to Suppress Evidence Obtained Through Illegal Search (Joint) (Doc. No. 28), supported by a brief (Doc. No. 29). The plaintiff (the "Government") filed a Response to Defendants' Motion to Suppress Evidence and Motion to Suppress Oral Communication (Doc. No. 35), and a Supplemental Response to Defendants' Motion to Suppress Evidence (Doc. No. 36).
On June 1, 2000, Rojas joined in Moreno's motions to suppress. (Doc. No. 30) Rojas later withdrew his joinder in Moreno's motion to suppress concerning the recorded conversations, but not his joinder in the motion to suppress evidence of the search. ( See Doc. No. 37)
The defendants were indicted on April 13, 2000, for possession of methamphetamine with intent to distribute (Doc. No. 5). On April 24, 2000, motions to suppress in this case were assigned to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636 (b)(1)(B), for the filing of a report and recommended disposition (Doc. No. 11). The court held a hearing on the motions on June 28, 2000.
At the hearing, the defendant Eddie Alcarez Moreno ("Moreno") appeared in person and with counsel, Charles Lee Hawkins. The defendant Victor Rojas Madrigal ("Rojas") appeared in person and with counsel, Assistant Federal Public Defender Jeffrey A. Neary. The Government was represented by Assistant United States Attorney C.J. Williams. Iowa State Trooper Chris Callaway testified on behalf of the Government. At the conclusion of the hearing, the Court gave the parties additional time to supplement the record. The parties have completed their submissions, and the Court considers these motions complete and ready for decision.
II. FINDINGS OF FACT
During the daylight hours of Friday, March 31, 2000, at approximately 5:40 p.m., while traveling south on Interstate 35, Trooper Callaway observed a red 1987 Chevrolet Beretta traveling northbound a few miles south of the Clear Lake, Iowa, exit. He noticed the car had a dealership advertising sign instead of a front license plate, so he turned his vehicle around and followed the Beretta. Trooper Callaway testified he saw a piece of paper with large black letters in the upper right-hand corner of the vehicle's rear window that appeared to be a temporary plate, but he could not read it. He followed the vehicle for approximately one-quarter mile, and then stopped it. Trooper Callaway's vehicle had a video and audio recorder which taped the entire stop.
After reviewing the tape, the Court notes that the paper tag was located in the center of the right edge of the rear window. The form of temporary plate displayed on the vehicle was placed into evidence as "Government Exhibit 2." It was clearly legible from the distance at which Trooper Callaway testified he was following the Beretta.
Trooper Callaway testified that as he approached the passenger side of the vehicle, he still was unable to determine if the temporary plate was valid. He explained to the two occupants why he had stopped the car, asked if the temporary tags were all they had, and asked the driver, Moreno, for his license and registration. Moreno told Trooper Callaway that the temporary tags were all he had, and handed Trooper Callaway his California driver's license, the Beretta's Bill of Sale, the vehicle registration, and another vehicle identification card. Trooper Callaway testified that Moreno's hand was trembling and both men appeared uneasy. Trooper Callaway also testified that the vehicle had an odor of strong perfume or air freshener. From the information given to Trooper Callaway concerning the Beretta, Trooper Callaway determined that the vehicle's temporary plate was valid. Nevertheless, he asked Moreno to come back to his patrol car while he checked the validity of Moreno's driver's license, and Moreno complied.
Trooper Callaway testified he was unfamiliar with the type of temporary tag displayed on the vehicle and wanted to verify its legality. By the time of the hearing, he had confirmed that it was a valid, Iowa temporary tag issued to vehicles purchased in Iowa for immediate transportation out of state. Trooper Callaway stated that he had never seen this type of plate before in his eight years as an Iowa State Trooper. This type of temporary tag did not contain dealer numbers and buyers' addresses, which is information displayed on the tags he had seen previously.
While Trooper Callaway was checking the validity of Moreno's driver's license, he asked Moreno why he was traveling through Iowa. Moreno gave Trooper Callaway a confusing explanation about retrieving a van. Trooper Callaway then asked Moreno his passenger's name, and Moreno told him it was "Victor," but he did not know Victor's last name. Moreno told Trooper Callaway he had known Victor for approximately two or three weeks. After a few minutes, Trooper Callaway received word that Moreno had an invalid, suspended driver's license.
Moreno stated he lived in California and was going to pick up a van in Iowa. After he picked up the van, he planned to visit his aunt who lived in St. Paul, Minnesota. Moreno further explained that on an earlier trip to see his aunt, his van had broken down near Atlantic, Iowa, so he left the van there, bought the Beretta, and returned to California. He was currently in Iowa looking for the van, but could not find it. He planned to go to Minneapolis to ask some people if they knew where it was located.
Trooper Callaway testified Moreno told him that he had known Victor for one week; however, the tape reveals Moreno said he had known Victor for approximately two or three weeks.
Trooper Callaway then spoke with Rojas, while Moreno remained in the patrol car. Trooper Callaway asked for Rojas's identification, and Rojas gave him an expired Washington State identification card. Trooper Callaway asked Rojas about his travel plans with Moreno. Rojas told the officer that he had known Moreno for a year, and they were going to retrieve a van in St. Paul, Minnesota. Trooper Callaway asked Rojas if he had any weapons, drugs, narcotics, or alcohol in the car. Rojas responded, "Nada," and laughed. Rojas asked if Trooper Callaway wanted to search the vehicle, and Trooper Callaway responded, "No, that's okay."
Trooper Callaway went back to his patrol car, returned Moreno's driver's license, and gave Moreno a warning for improper display of the temporary plate and a citation for not having a valid driver's license. Shortly thereafter, the following dialogue occurred:
18:13:02 Callaway: Can I search your car?
Moreno Go ahead.
Callaway: Okay.
Moreno: Aren't you, like, supposed to have a reason . . . like . . . like to search, you know what I'm saying?
18:13:31 Callaway: Oh, no.
After some discussion about the various reasons for a search, Trooper Callaway presented Moreno with a written consent to search form, and the following dialogue took place:
The consent to search form was written in English.
18:14:17 Callaway: It's a consent to search form.
Moreno: What's that for?
Callaway: Well, you've already given me verbal consent. Now I just want you to read through this and make sure you understand it, and then if you sign right here, that's saying it's okay for me to search your car.
Moreno: And, if I don't, then you can't. Or it seems like you have to have the same thing, huh?
Callaway: Yeah, I'm, I'm asking for your permission to search your car.
Moreno: [Unintelligible] No, I just asking.
Callaway: No, yeah, no that's, that's good. Never sign anything before you ask questions. What I always tell them, if ya, if ya have drugs in your car, don't, don't consent to a search, but if ya, if ya have drugs, then you don't have anything to hide. Right?
18:14:57 Moreno: Right.
(Gov't Ex. 1) Moreno then signed the form and waited in the patrol car with Rojas while Trooper Callaway searched the Beretta. Trooper Callaway left the patrol car's windows down and the doors unlocked, and told the defendants to honk the horn if they needed anything.
Before Trooper Callaway began his search of the vehicle, Trooper David Baker arrived at the scene. Both troopers began to search the car, and Trooper Callaway found evidence of over-spray in the right, rear seat area and noticed most of the interior body panels were either cracked or damaged. It appeared the rear seat had been taken out. At that point, Trooper Callaway called for a tow service because, he testified, neither Moreno nor Rojas was authorized to drive the vehicle. Then, the following dialogue occurred:
18:38:09 Callaway: I'd like to continue to search the car —
Moreno: Okay.
Callaway: — with your permission.
(Gov't Ex. 1) That dialogue was followed by a question from Moreno about Trooper Callaway's being finished with the search.
Trooper Callaway asked Moreno and Rojas if they would like to stay with the car or get something to eat. The defendants chose to get something to eat, so Trooper Callaway dropped them off at Horizon's Truck Stop, which was approximately 200 yards south of Meyer's Towing, where their car would be dropped off. Trooper Callaway told the men to make arrangements for someone with a valid license to pick up the car, and said they could pick it up as soon as they did so.
The troopers continued to search the car with a drug dog, and the drug dog "alerted" on the vehicle. A Spanish-speaking officer reviewed the audiotape of the conversation that took place between Rojas and Moreno while they were seated in the patrol car during the roadside search. The officer interpreted their conversation, and told Trooper Callaway that Rojas and Moreno had discussed "the paint," how neither would ever see their children again, whether they should run from the scene, and how much trouble they were in. Rojas and Moreno also said a long prayer to God in which they prayed the Troopers would not find "it." The interpreting officer also noted that Rojas and Moreno were most concerned when the troopers were searching near the front passenger door.
Trooper Callaway then began searching the right passenger door of the car. He noticed the smell of Bondo and wet paint, so he pulled the carpet away and observed that the right passenger area had been painted recently. Through a small factory hole, he saw a portion of a plastic package. Trooper Callaway then used a metal bar and broke through the fresh Bondo, recovering ten packages of methamphetamine, each weighing approximately one pound.
The troopers went to Horizon's Truck Stop to arrest Rojas and Moreno, but they had already left. They later were arrested on a warrant issued on the present indictment.
III. LEGAL ANALYSIS
In his Motion for Suppression of Wiretaps, Oral Communications or Other Electronic Eavesdropping, Moreno seeks to suppress the audiotape recording of his conversation with Rojas in Trooper Callaway's patrol car and all evidence derived from the tape recording as being intercepted unlawfully. In their joint Motion to Suppress Evidence Obtained Through Illegal Search, Rojas and Moreno seek to suppress all physical evidence seized as a result of the search of their vehicle and all statements made by them at the time of the search and seizure. They argue the evidence should be suppressed for four reasons: (1) the stop of their vehicle was unlawful and without probable cause; (2) their continued detention was unlawful after Trooper Callaway saw the legal "dealer plate"; (3) the second and third searches of the vehicle either were completed without consent or exceeded the scope of any consent; and (4) the searches of the impounded vehicle were conducted without a warrant. The Government resists each of these arguments, and also contends Rojas lacks standing to challenge the search of Moreno's vehicle. After a review of the case, the Court finds it necessary to address only the issues concerning the intercepted conversation, lawfulness of the stop, and consent to search.
A. Intercepted Conversation
Moreno argues the conversation he had with Rojas in the back seat of the patrol car should be suppressed because it was an unlawfully intercepted communication. The Government argues Moreno did not have a reasonable expectation of privacy while in Trooper Callaway's patrol car.
The Eighth Circuit Court of Appeals, along with many other circuits, has specifically held there is no reasonable expectation of privacy in a patrol car. See United States v. Clark, 22 F.3d 799, 801 (8th Cir. 1994); see also United States v. Turner, 209 F.3d 1198, 2000 (10th Cir. 2000); United States v. McKinnon, 985 F.2d 525, 526 (11th Cir. 1993). Based on these authorities, the Court finds Moreno did not have a reasonable expectation of privacy while in Trooper Callaway's car, and his Motion for Suppression of Wiretaps, Oral Communications or Other Electronic Eavesdropping (Doc. No. 26) is denied.
B. Lawfulness of the Stop
Moreno and Rojas argue that all evidence derived from the stop and subsequent search of their vehicle should be suppressed because the underlying stop was conducted without probable cause. "As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996); see also Delaware v. Prouse, 440 U.S. 648, 659, 99 S.Ct. 1391, 1399, 59 L.Ed.2d 660 (1979); Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331 (1977). The Eighth Circuit has held, "Any traffic violation, even a minor one, gives an officer probable cause to stop the violator." United States v. Lyton, 161 F.3d 1168, 1170 (8th Cir. 1998) ( quoting United States v. Pipes, 125 F.3d 638, 640 (8th Cir. 1997), and United States v. Bell, 86 F.3d 820, 822 (8th Cir.), cert denied, 519 U.S. 955, 117 S.Ct. 372, 136 L.Ed.2d 262 (1996)); see also United States v. Foley, 206 F.3d 802, 805 (8th Cir. 2000); United States v. Ramos, 20 F.3d 348, 351 (8th Cir. 1994). In addition, an officer has probable cause to stop a vehicle if he or she "objectively has a reasonable basis for believing that the driver has breached a traffic law." United States v. Grennell, 148 F.3d 1051, 1052 (8th Cir. 1998) ( quoting United States v. Thomas, 93 F.3d 479, 485 (8th Cir. 1996))
However, the Supreme Court has made it clear the Fourth Amendment does not allow a random, discretionary automobile stop that is unsupported by any articulable, reasonable suspicion of a violation. See Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 58 L.Ed.2d 660 (1978); United States v. Villamonte-Marquez, 462 U.S. 579, 592, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983) ("Random stops without any articulable suspicion of vehicles away from the border are not permissible under the Fourth Amendment. . .").
The Government argues that when an officer sees a temporary tag but is unable to read it, he has a reasonable, articulable basis for at least stopping the vehicle. In support of that argument, the Government cites four cases, to-wit: United States v. Peltier, ___ F.3d ___, 2000 WL 862540 (8th Cir. 2000); United States v. Dumas, 94 F.3d 286, 290 (7th Cir. 1996); United States v. Tipton, 3 F.3d 1119, 1122 (7th Cir. 1993); and United States v. Corral, 899 F.2d 991, 993-94 (10th Cir. 1990). As a question of fact, the Court finds Trooper Callaway was able to read the temporary tag on the vehicle in the present case. In any event, each of the Government's cited cases is clearly distinguishable.
In Peltier, a darkly-tinted window obscured the officer's ability to read a temporary tag in the back window of Peltier's vehicle. The officer lawfully stopped the vehicle to determine whether Peltier was operating a registered vehicle. Upon approaching the vehicle, the officer still was unable to read the temporary tag. The officer lawfully continued his investigation into whether the temporary tag was valid when he noticed a seatbelt violation. Because he was in the process of a valid investigation when he noticed the seatbelt violation, it was lawful for the officer to issue a citation for it. The Eighth Circuit held:
The Eighth Circuit further found the officer had probable cause to search the vehicle because the officer smelled marijuana emanating from the vehicle's heater while he was issuing Peltier the seatbelt citation.
Because the deputy lawfully stopped Peltier to investigate the possible registration violation, the deputy could properly detain and ticket Peltier for the seatbelt violation he observed while verifying that Peltier had a valid and properly displayed registration sticker.Peltier, 2000 WL 862540, at *2.
In the present situation, the valid temporary tag was displayed clearly, and not hidden by tinted windows. The sole reason for Trooper's Callaway's stop of the vehicle was his unfamiliarity with the temporary tag, not to investigate a tag that was already in violation of Iowa law for not being clearly visible. In Tipton, a trooper pulled over a vehicle which appeared not to have the required registration tags. As the officer approached the vehicle, he observed what appeared to be a temporary tag that had partially fallen off. The Seventh Circuit Court of Appeals held that because the improper display of the registration tag was a violation in and of itself, the officers were not "obliged to abort the stop even if they had noticed the improperly affixed sticker prior to questioning." Tipton, 3 F.3d at 1123. The case is clearly distinguishable from the present situation. The manner in which Moreno and Rojas displayed the temporary tag on their vehicle was in full compliance with Iowa's laws and regulations when they were stopped.
Three years after the Tipton decision, in Dumas, the Seventh Circuit Court of Appeals ruled on a case with similar facts. An officer pulled over a van because he could not see the temporary license plate that was shielded by the van's tinted windows. The Seventh Circuit held the officer's stop of the van was valid because the temporary license plate could not be "readily and distinctly seen and read," in violation of Wisconsin law. Again, the case is clearly distinguishable from the present case, in which the temporary tag was displayed clearly behind a non-tinted window.
The Tenth Circuit Court of Appeals addressed this issue in Corral. An officer stopped a vehicle because the license tags were expired, and he did not see the temporary paper plate because it was folded and in the wrong location in the back window. When the officer asked the defendants to unfold the temporary tag inside the hatchback, he noticed the spare tire was not in the tire compartment under the floor. At that point, the officer asked to search the vehicle, consent was given, and drugs were found. The Tenth Circuit held the initial stop of the vehicle was valid based upon a reasonable suspicion that the vehicle's license plate was expired. Corral, 899 F.2d at 995. Those facts are distinguishable from the facts in the present case, in which the valid temporary tag used by Moreno was clearly visible and was not folded or obstructed in any way.
In United States v. McSwain, 29 F.3d 558 (10th Cir. 1994), the Tenth Circuit revisited the issue. An officer stopped McSwain because he was unable to read the expiration date on the temporary registration sticker in McSwain's vehicle's rear window. When the officer approached the vehicle, he observed that the sticker was valid and the expiration date was difficult to read because of reflective tape Colorado used on temporary plates. The Tenth Circuit held once the trooper "observed that the temporary sticker was valid and had not expired, the purpose of the stop was satisfied," and "further detention of the vehicle to question Mr. McSwain about his vehicle and travel itinerary and to request his license and registration exceeded the scope of the stop's underlying justification." McSwain, 29 F.3d at 561.
In United States v. Wilson, 205 F.3d 720 (4th Cir. 2000), an officer stopped Wilson because, due to the nighttime darkness, the officer could not read the handwritten expiration date on Wilson's vehicle's valid temporary license tag. The Fourth Circuit held the officer did not have legal justification for stopping Wilson's car, and everything found pursuant to the stop should have been excluded from evidence at Wilson's trial. Wilson, 205 F.3d at 724.
After an objective assessment of the facts and circumstances of the stop in the present case, the Court concludes that when Trooper Callaway stopped the defendants' vehicle, he lacked any articulable, reasonable suspicion that a traffic violation had occurred. Trooper Callaway pulled Moreno and Rojas over because he, himself, was unfamiliar with a temporary license plate issued in accordance with Iowa law. Upholding a stop on these facts would permit the police to make random, suspicionless stops based on their own unfamiliarity with the law (here, the law in the officer's own state). The Fourth Amendment does not afford the police such unbridled discretion. In addition, even if Trooper Callaway had a reasonable suspicion that a violation had occurred, he should have aborted the stop as soon as he saw the state-issued temporary tag. See McSwain, 29 F.3d at 561.
This Court finds Trooper Callaway had no articulable, reasonable suspicion that a violation occurred, and Moreno and Rojas were stopped unlawfully. Any evidence found or statements made pursuant to or during the stop should be suppressed, unless Moreno's consent to the search of his vehicle cured this initial illegality. See United States v. Ramos, 42 F.3d 1160, 1164 (8th Cir. 1994), cert. denied, 514 U.S. 1134, 115 S.Ct. 2015, 131 L.Ed.2d 1013 (1995). The Court therefore will examine Moreno's consent to determine if it cured this initial taint.
See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
C. Consent to Search
In Ramos the Eighth Circuit held, in a situation similar to the present one, that even if the initial detention was illegal, a court still must decide if the consent nevertheless was "`sufficiently an act of free will to purge the primary taint.'" Ramos, 42 F.3d at 1164 ( quoting Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). "A search preceded by a Fourth Amendment violation remains valid if the consent to search was voluntary in fact under the totality of the circumstances." McSwain, 29 F.3d at 562 ( quoting United States v. Fernandez, 18 F.3d 874, 881 (10th Cir. 1994)); see also United States v. Rodriguez, 497 U.S. 177, 180, 110 S.Ct. 2793, 2797, 111 L.Ed.2d 148 (1990); United States v. Palacios-Suarez, 149 F.3d 770, 772 (8th Cir. 1998); United States v. Guzman, 864 F.2d 1512, 1520 (10th Cir. 1988).
For the search in this case to be lawful, the Government must demonstrate that both 1) the consent was voluntary in fact, and 2) there was a break in the causal connection between the illegal detention and the consent. See United States v. Melendez-Garcia, 28 F.3d 1046, 1054 (10th Cir. 1994). In analyzing the first prong of this test, the United States Supreme Court lists three factors courts should consider, including "the temporal proximity of the illegal detention and the consent, any intervening circumstances, and, particularly, the purpose and flagrancy of the officer's unlawful conduct." Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2261-62, 45 L.Ed.2d 416 (1975). The Court will analyze, in turn, these two prongs and three factors, as they apply in the present case.
1. Voluntariness of Consent
To prove the taint of the initial illegal stop was purged, the Government first must prove Moreno's consent was voluntary. According to Brown, the Court is to look to three relevant factors to make this determination.
a. Temporal proximity
First, the Court must consider "the temporal proximity of the illegal detention and the consent." See Brown, 422 U.S. at 603-04, 95 S.Ct. at 2261-62. In the present situation, Moreno consented to the search after he was stopped illegally, and moments after Trooper Callaway returned his driver's license and effectively concluded the illegal detention. Therefore, due to the closeness in time of these two events, the Court finds this factor weighs in Moreno's favor.
b. Intervening circumstances
Second, the Court must consider whether there were intervening circumstances between the illegal detention and Moreno's consent. Based on the facts in this case, there were no intervening circumstances between Moreno's unlawful stop and detention and his consent. Therefore, this factor also weighs in favor of a finding that Moreno's consent was involuntary.
c. Officer's unlawful conduct
The third and final factor for the Court's consideration is whether Trooper Callaway's conduct was unlawful. In Ramos, the officer specifically made Ramos aware of his right to refuse to consent to the search. Relying heavily on this factor, the Ramos court concluded the consent given was "sufficiently an act of free will," purging the initial Fourth Amendment taint. As the Ramos court explained:
The officer told [the defendant], both orally and in writing, that he did not have to sign the consent form. Such a warning is not required by law, Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and so the fact that the officer gave it indicates rather strongly to us that he was not attempting to exploit an illegal situation.United States v. Thomas, 83 F.3d 259, 260 (8th Cir. 1996) (quoting Ramos, 42 F.3d at 1164). In the present situation, Trooper Callaway did not inform Moreno that he did not have to consent to the search of his vehicle. In fact, Trooper Callaway essentially told Moreno that if he had drugs in the car, he should not consent to the search, but if he did not have drugs in the car, then he had nothing to hide. Trooper Callaway gave Moreno a quintessential Hobson's Choice. Moreno easily could have concluded that he had to consent to the search, because if he did not, he was admitting he had drugs in his vehicle. While it is true Trooper Callaway was under no obligation to inform Moreno that he did not have to consent to the search, his "Catch-22" instruction to Moreno lends support to a finding that Moreno's consent was involuntary.
Trooper Callaway's exact words were actually confusing and, to some extent, misleading. He stated: "If ya have drugs in your car, don't, don't consent to a search, but if ya, if ya [*] have drugs, then you don't have anything to hide." (Ex. 1 at 18:14:57.) At the [*], he omitted the intended "don't."
Other than informing a defendant of his right to refuse to consent to a search, officers may act in other ways supporting a finding that the officer's conduct was in good faith. The Eighth Circuit held that an officer acted in good faith and did not coerce a defendant's consent to search when the officer repeatedly asked the defendant if he understood what the officer was asking of him, and explained to the defendant the reason for the search. Palacios-Suarez, 149 F.3d at 773. Again, such facts are absent in this case. Although Trooper Callaway encouraged Moreno to ask questions, his overall conduct did not assist Moreno in making a voluntary and knowing waiver of his Fourth Amendment rights.
2. Break in the Causal Connection
The Government also must demonstrate that there was a break in the causal connection between the illegal detention and the consent. See Melendez-Garcia, 28 F.3d at 1054. This is similar to the question of whether there were intervening circumstances between the illegal detention and the search. Moreno was stopped and detained unlawfully. Moments after Trooper Callaway returned Moreno's license to him, Trooper Callaway requested to search Moreno's vehicle. Based on the facts in this case, no break occurred in the causal connection between Moreno's detention and his consent.
Under the totality of the circumstances, the Government has failed to demonstrate that Moreno's consent was voluntary and there was a break in the causal connection between his unlawful detention and subsequent consent. For these reasons, the Court finds that all statements made during the stop and all evidence found pursuant to the stop should be suppressed as to both Moreno and Rojas.
IV. CONCLUSION
IT IS RECOMMENDED, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636 (b)(1)(C) and Fed.R.Civ.P. 72(b), within ten (10) days of the service of a copy of this report and recommendation, that the defendants' motion to suppress evidence (Doc. No. 28) be granted, and Moreno's motion for suppression of wiretaps, etc., (Doc. No. 26) be denied, in accordance with the Court's recommendations set forth above.
Objections must specify the parts of the report and recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 475, 88 L.Ed.2d 435 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).
IT IS SO ORDERED.
DATED this 14th day of July, 2000.