II. Inevitable Discovery
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, therefore, defendant's motion to suppress evidence should be denied.
Upon careful consideration of the Report and Recommendation and of the submissions of the parties, and after hearing oral argument, the Court adopts the proposed findings of the Report and Recommendation. The proposed findings are amply supported by the record. Magistrate Judge Heckman made specific findings of fact as to the testimony presented and provided a thorough analysis of the totality of the circumstances in this case regarding the issue of consent and the issue of inevitable discovery.
While the District Court is required to make a de novo determination of those portions of the Report and Recommendation which have been objected to, credibility determinations by a magistrate judge, who has heard and observed the witnesses, are given deference. United States v. Marshall, 609 F.2d 152 (5th Cir. 1980). Magistrate Judge Heckman observed first-hand the demeanor of the witnesses who testified at the hearing and based her proposed finding crediting defendant's testimony regarding the absence of consent on these observations. Accordingly, the Court finds no basis in the record for rejecting Magistrate Judge Heckman's proposed finding crediting defendant's testimony.
The Second Circuit has determined that the prosecution must prove, by a preponderance of the evidence, that a defendant's consent to search was "freely and voluntarily" given. Calvente, 722 F.2d at 1023. Although Magistrate Judge Heckman determined that the government failed to meet its burden of establishing consent by a preponderance of the evidence, "with clear and positive testimony," it is clear from the record that Magistrate Judge Heckman applied the preponderance of the evidence standard to the circumstances of this case and that the government failed to meet its burden of establishing defendant's consent to a warrantless search of his duffel bag based on that standard.
Accordingly, for the reasons set forth in Magistrate Judge Heckman's Report and Recommendation, and for the reasons set forth herein, the Court grants defendant's motion to suppress evidence.
IT IS ORDERED that the parties shall appear in Part II of this Court at 9:00 a.m. on March 8, 1994, for a meeting to set trial date.
IT IS SO ORDERED.
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: February 22, 1994