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UNITED STATES v. GRIFFITHS

February 22, 1994

UNITED STATES OF AMERICA, Plaintiff,
v.
NORMAN GRIFFITHS, Defendant.


ARCARA


The opinion of the court was delivered by: RICHARD J. ARCARA

BACKGROUND

 Defendant, Norman Griffiths, is charged in a two count indictment with possession with intent to distribute a Schedule II controlled substance in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and 21 U.S.C. § 844(a). Defendant was arrested on July 14, 1993, at the Niagara Frontier Transportation Authority ("NFTA") bus terminal in Buffalo, New York. This matter was referred to Magistrate Judge Carol E. Heckman, pursuant to 28 U.S.C. § 636(b)(1), on July 28, 1993.

 On August 18, 1993, defendant moved to suppress evidence obtained as a result of a warrantless search of his duffel bag at the NFTA police office. A suppression hearing was held before Magistrate Judge Heckman on September 28, 1993. On December 8, 1993, Magistrate Judge Heckman filed a Report and Recommendation recommending that defendant's motion to suppress evidence be granted. On December 22, 1993, the government filed objections *fn1" to the Report and Recommendation. Defendant filed a response to the government's objections on January 26, 1994. Argument was heard on February 1, 1994.

 Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made.

 DISCUSSION

 I. Consent

 A warrantless search conducted pursuant to a valid consent is constitutionally permissible. Schneckloth v. Bustamonte, 412 U.S. 218-19 (1973). However, the government bears the burden of establishing, by a preponderance of the evidence, that defendant's consent was "freely and voluntarily" given. Bumper v. North Carolina, 391 U.S. 543, 548 (1968); see also United States v. Matlock, 415 U.S. 164, 177 (1974); United States v. Calvente, 722 F.2d 1019, 1023 (2d Cir. 1983), cert. denied, 471 U.S. 1021 (1985). Whether the consent is in fact voluntary "is a question of fact to be determined from the totality of all the circumstances." Schneckloth, 412 U.S. at 227. Voluntariness may not be established simply by a showing of mere acquiescence to a police officer's request. United States v. Deutsch, 978 F.2d 878, 883 (2d Cir. 1993).

 Magistrate Judge Heckman made a proposed finding that defendant did not knowingly and voluntarily consent to the warrantless search of his duffel bag. Regarding the conflict in testimony as to whether defendant consented to the search either on the street or at the NFTA police office, Magistrate Judge Heckman found that defendant's testimony was credible and worthy of belief and resolved the conflict against the government as it had the burden of proof on the issue of consent. Relying on United States v. DeWitt, 946 F.2d 1497, 1500 (10th Cir. 1991), cert. denied, U.S. , 112 S. Ct. 1233 (1992), Magistrate Judge Heckman made a proposed finding that the government did not meet its burden of demonstrating by a preponderance of the evidence, "with clear and positive testimony," that defendant gave an informed, knowledgeable and voluntary consent to the search. Item No. 12, at 26.

 The government objects and argues that Magistrate Judge Heckman erred in her application of the totality of the circumstances test and in the standard of proof applicable to a determination of the voluntariness of defendant's consent to a warrantless search.

 The inevitable discovery doctrine provides an exception to the exclusionary rule where the government can demonstrate that the evidence would have been acquired lawfully through an independent source absent the government misconduct. Murray v. United States, 487 U.S. 533, 539 (1988). See also, United States v. Eng, 971 F.2d 854, 859 (2d Cir. 1992) (citing Nix v. Williams, 467 U.S. 431, 448-50 (1984)). The government has the burden of proving by a preponderance of the evidence that the evidence "ultimately or inevitably" would have been discovered by lawful means. United States v. Whitehorn, 829 F.2d 1225, 1230 (2d Cir. 1987).

 Magistrate Judge Heckman made a proposed finding that the government failed to sustain its burden by a preponderance of the evidence that the controlled substance would inevitably have been discovered during an inventory search of defendant's bag incident to his detention on an uncharged violation of the immigration laws.

 The government objects and argues that the evidence supports a finding that an inventory search, pursuant to defendant's detention on an immigration detainer, would have disclosed the presence of controlled substances in defendant's duffel bag and, ...


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