LAURIE SMITH CAMP, District Judge
This matter is before the Court on the Report and Recommendation (Filing No. 47) issued by Magistrate Judge F.A. Gossett recommending that the Motion to Suppress (Filing No. 10) filed by the Defendant Glen A. Heyd be granted. The United States has objected to the Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1)(C) and NELR 72.4, with the general argument that the recommendation to suppress the evidence should be rejected. (Filing No. 50).
Heyd is charged in a one-count Indictment of being a convicted felon who knowingly was in possession of ammunition in violation of 18 U.S.C. § 922(g)(1).
Following an evidentiary hearing on the motion, Magistrate Judge Gossett issued a Report and Recommendation in which he determined that: 1) police officers had reasonable suspicion under Terry v. Ohio, 392 U.S. 1 (1968), and Michigan v. Summers, 452 U.S. 692 (1981), to detain Heyd in order to prevent interference with their search of an apartment for which they had a warrant; 2) Heyd had already been seized when he was asked for incriminating information from law enforcement without first being advised of his rights; 3) regardless of whether Heyd admitted possession of the infraction amount of marijuana, law enforcement did not have probable cause to search Heyd's apartment and no exigent circumstances were present to justify a warrantless search of Heyd's apartment; and 4) the good faith exception articulated in United States v. Leon, 468 U.S. 897 (1984) does not apply to the facts of this case.
Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de novo review of the record. I have read the transcripts (Filing No. 39, hereafter referred to as "Tr." and Filing No. 42, hereafter referred to as "Tr2."), considered the exhibits, considered the Report and Recommendation, and reviewed all the briefs that were filed in connection with the motion. (Filing Nos. 11, 45, and 46) Based on this review, I find and conclude that the Magistrate Judge's Report and Recommendation should be adopted in its entirety.
Factual Background
Pursuant to a search warrant (Ex. 2), several members of the Omaha Police Department, including members of its Emergency Response Unit ("ERU") converged at 6820 So. 30th Street, Apartment No. 1 to search the premises. The apartment is located in a building that also houses the Outer Limits Bar and at least two other apartments. The application in support of the search warrant identified the person believed to be residing in Apartment No. 1 as Cecilio Rodriguez (Ex. 2.) At the time the police officers arrived, Rodriguez and his two young children were visiting at a neighboring apartment that was leased by Defendant Glen Heyd. (Tr.19, 20.) As the ERU officers approached 6820 So. 30th Street, Heyd observed some of the officers through the window of his own apartment, identified as Apartment No. 2, which is located in the same building. Heyd and his girlfriend, Shannah Allee, had already decided to leave to Apartment No. 2 to go to the store, and so they, Rodriguez, and Rodriguez's children left Heyd's apartment. Allee left the apartment first, followed by Heyd, who stepped back and waited for Rodriguez and his children to leave the apartment, and then Heyd locked the door to Apartment No. 2 behind them. (Tr. 20.)
As Allee walked the few steps down from the landing outside Apartment No. 2, she estimated that there were eight police officers standing around the door of Apartment No. 1, many of whom were clad in bullet-proof vests and had weapons drawn. (Tr. 21.) Initially, one of the officers said to Allee, "this doesn't pertain to you, you guys can go ahead and keep walking," but within a few seconds, another officer recognized Rodriguez as the subject of the search warrant, and the officer directed the people leaving Heyd's apartment to stop. (Tr. 23-24.) According to Allee, both Rodriguez and Heyd were put in handcuffs immediately. Allee recalls that the officers were asking them to identify themselves, and asking who lived where and what they were doing there. (Tr. 26.) Allee also recalls that an officer asked Heyd if they could go inside Apartment No. 2, and he said, "No." (Tr. 26.) She testified that a police officer, without asking for Heyd's consent, put his hands into Heyd's pocket, and pulled out a small bag of marijuana and Heyd's keys. (Tr. 26-27.) During all the time Heyd was standing outside Apartment No. 2 in handcuffs, he was protesting the officers' actions. (Tr. 27-28.)
Officer Eugene Watson approached Heyd immediately after the group stopped walking. (Tr2. 48-49.) Another officer had placed Rodriguez in custody (Tr2. 48.) Officer Watson recalled Heyd expressing his belief that the police's business with Rodriguez had nothing to do with him. (Tr2. 50.) According to Officer Watson, he asked Heyd whether he had any weapons or drugs on him, and Heyd volunteered that he had a small amount of "weed" in his pocket. Officer Watson testified that he asked which pocket, Heyd indicated, and Officer Watson pulled the marijuana from Heyd's pocket and placed Heyd under arrest. (Tr 2. 40-41.) Officer Watson knew that the "weed" was marijuana, and that it was less than an ounce, and referred to it as an "infraction" amount, possession of which carries a $100 maximum fine. (Tr2. 50.) Officer Watson stated that only after he retrieved the marijuana did he place Heyd under arrest and perform a pat-search of Heyd. During this search, Officer Watson stated that he found the keys to Heyd's apartment. Officer Watson knew they were the keys to Heyd's apartment because he had just observed Heyd using them to lock the door to Apartment No. 2. (Tr2. 51)
Officer Watson and Sergeant Gonzalez each testified that they had no knowledge of how the door to Apartment No. 2 was opened. (Tr2. 51-52; 11-12) Each officer stated that they did not open the door, and each stated that they did not recall asking Heyd for his permission to open the door. Sergeant Gonzalez stated that he made the decision to obtain a search warrant, and he assigned the responsibility of preparing the application and supporting affidavit to Officer Mark Noonan. (Tr2. 12)
Allee stated that as soon as the officer pulled the keys from Heyd's pocket, he asked whether any of the keys fit the door to Apartment No. 2, and Heyd said that they did not. Allee said that then the officer grabbed Heyd and walked him up to the door to Apartment No. 2 and stated that they would just try the keys. Allee testified that all the while, Heyd was protesting and expressing his opinion that what the officers were doing was illegal. (Tr. 29.) When the door to Apartment No. 2 was opened, an officer walked Heyd through the door and into the apartment, stating that they would look around the premises. Heyd protested their entry. (Tr. 30.) Allee testified that Heyd kept stating that he believed the officers were acting illegally, and that Heyd never agreed to go inside the apartment with the officers. After the officers and Heyd entered Heyd's Apartment No. 2, another officer took Allee inside Rodriguez's Apartment No. 1. She estimated that she was outside near Apartment No. 2 for about 15 minutes (Tr. 36 and 33), then she sat in Rodriguez's apartment for approximately 25 minutes (Tr. 33), and then she was taken to Heyd's apartment where she remained for approximately 15 to 20 additional minutes (Tr. 36-37.) When she first entered Heyd's apartment, Allee testified that Heyd's apartment looked like a wreck, and while she was there, she observed the officers conducting a thorough search of the premises (Tr. 37.) She observed Heyd seated on the couch, verbally protesting throughout the time of the search, and being told to "shut his mouth" by the officers. (Tr. 37.) Eventually, Allee was escorted to a police cruiser and taken to police headquarters to be booked on an outstanding felony warrant for failure to appear.
Officer Watson does recall entering Apartment No. 2, stating that he had heard talk of getting a search warrant for Apartment No. 2, and he and other officers went inside to secure Apartment No. 2, but did not seize any property. (Tr2. 43, 54.) He stayed in Apartment No. 2 only a short time, but also recalled that other officers did not leave the apartment at the same time that he left. (Tr. 52-55.) Sergeant Gonzalez estimated that Officer Noonan was absent from the premises for approximately an hour to an hour and fifteen minutes, and that Officer Noonan contacted him by telephone or radio to inform him that the judge had signed the warrant, and that this contact was made about 15 or 20 minutes before he came back to the scene. (Tr.2 13, 14.) Sergeant Gonzales also testified that he directed his officers to bring Allee, Rodriguez, and the two Rodriguez children into Apartment No. 2 "to get them from having to wait around for the search warrant to be signed." (Tr2. 17.)
From the time the police gained entry to Apartment No. 2, and for approximately 45 minutes after that time, police officers were inside Apartment No. 2. When asked about the glassware found in Apartment No. 2, Sergeant Gonzalez stated that it was in a closet by the kitchen area. (Tr2. 21.)
A resident of Apartment No. 3, which is located in the building directly under Heyd's apartment, also testified at the hearing. Regina Howlett-Andrews stated that on December 9, 2002, she heard " a lot of noise" and "a bunch of bumping over" as if someone was "tearing up the place." (Tr. 53.) She testified that the forces upstairs from her bedroom were so strong that on of the bedroom lights "was knocked out." (Tr. 54.) She also heard breaking glass, and when she opened her door to investigate, she observed a police officer breaking glass up in a box. (Tr. 53.) When she spoke to Heyd after he was released, Heyd told her that the police had reached into his pocket and removed his keys, unlocked his apartment door, and then entered his apartment without his consent. Howlett-Andrews knew Heyd only casually as a neighbor at the time of these events. (Tr. 55-56.)
Analysis
In connection with this motion, it is undisputed that less than an ounce of marijuana was retrieved from Heyd's pocket, but there is a factual dispute as to whether Heyd voluntarily informed a police officer that he had marijuana on him in a manner consistent with the Fifth Amendment, or whether Heyd was searched without his consent. It is also undisputed that law enforcement entered Heyd's apartment before a search warrant was issued, but that a search warrant authorizing the search of Apartment No. 2 was subsequently issued and eventually delivered to Sergeant Gonzalez at the scene. Defendant moves to suppress the evidence that he maintains was seized from his person and from his premises in violation of the Fourth and Fifth Amendments of the United States Constitution. The Court's initial inquiry is whether the restraint on the Defendant's movement was such that the police were required to advise him of his Miranda rights before asking him about his possession of contraband, and then, whether the search of Heyd's person and his apartment were reasonable under the Fourth Amendment as "measured in objective terms by examining the totality of the circumstances." Ohio v. Robinette, 519 U.S. 33, 39 (1996). The exclusionary rule prohibits the admission of the physical and testimonial evidence that was gathered illegally. Wong Sun v. United States, 371 U.S. 471, 484-88 (1963).
Heyd's Statement
A person can be temporarily detained if law enforcement has a reasonable suspicion that criminal activity is afoot under Terry v. Ohio, 392 U.S. 1, 27 (1968). Because the police had a valid warrant to search Apartment No. 1 and to arrest Rodriguez, and because Heyd and Rodriguez were observed by law enforcement as leaving Apartment No. 2 together, I agree that law enforcement had reasonable suspicion to temporarily detain Heyd to ensure that he did not interfere with the execution of the search warrant that was already underway, to inquire into his identity, and to pat-search his body for weapons.
However, "[t]he Fourth Amendment requires that [a police officer] use the least intrusive means reasonably available to confirm or dispel his reasonable suspicion in a short period of time." Eubanks v. Lawson, 122 F.3d 639, 641 (8th Cir. 1997), citing United States v. Sharpe, 470 U.S. 675, 685-86 (1985). Assuming the facts as presented by the government for purposes of this motion, this Court must determine whether Heyd was subjected to a custodial interrogation without the benefit of being advised of his Miranda rights. For the reasons that follow, the Court concludes that Heyd's statement that he possessed a small amount of marijuana was made after he was in custody, when no reasonable person would have felt free to go, and without the benefit of Miranda, and therefore, the statement will be excluded.
In
Miranda v. Arizona, 384 U.S. 436, 444 (1966), the Supreme Court stated: [T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.
Allee's testimony of what transpired and when it transpired was credible in its detail and its consistency. Unlike the law enforcement officers who testified at the hearing who could not recall or did not have knowledge of some of facts leading up to the search of Apartment No. 2, Allee recalled the event in detail. Allee observed approximately eight police officers, all armed (and the ERU officers, heavily armed and attired in bullet-proof vests), as she descended the few stairs outside Apartment No. 2 to the landing. She recalled that the police initially told them to go on their way, and very shortly thereafter, commanded them to stop. Allee and the others in her group could see that Apartment No. 1 was being searched by even more officers. Rodriguez and Heyd were immediately handcuffed. Allee was standing within a foot or two of Heyd and the police officer who handcuffed Heyd. Allee did not hear anyone ask Heyd for consent to search his body, but she observed a police officer putting his hands into Heyd's pockets and pulling out both the marijuana and the keys. She testified that Heyd continuously protested the actions of the law enforcement officers. While I may doubt that Heyd would have volunteered to a police officer that he possessed a small amount of marijuana, I need not get to that credibility issue.
As soon as Heyd locked the door to his apartment and turned toward police, he was temporarily and properly detained based on his proximity to Rodriguez during the execution of the search warrant. Heyd was immediately handcuffed despite his protestations that he had nothing to do the officer's interest in Rodriguez. Given the use of handcuffs, the number of officers, the fact that some officers were ERU officers in bullet-proof vests, the presence of weapons — some of which were drawn, the contemporaneous execution of the search warrant in Apartment No. 1, and the swift change in commands from police to Heyd's group, first allowing them to go and then ordering them abruptly to stop, I conclude that a reasonable person in Heyd's position would not have felt free to leave the scene. I.N.S. v. Delgado, 466 U.S. 210, 216 (1984); United States v. Mendenhall, 446 U.S. 544, 554-55 (1980). Thus, when Officer Watson asked Heyd whether he had any weapons or contraband on him, I find that this was a request for incriminating information and the circumstances required that Heyd first be advised of his right against self-incrimination under Miranda. Because he was not so advised, his statement that he had "weed" in his pocket will be suppressed.
Search of Heyd's Person and Apartment No. 2
Heyd also seeks to suppress all the evidence obtained during the search of his person and Apartment No. 2 on December 9, 2002. The Fourth Amendment prohibits the police from making a warrantless and nonconsensual entry into a suspect's home unless the police have probable cause and there are exigent circumstances present that justify action before a warrant is obtained. Payton v. New York, 445 U.S. 573, 576, 583 (1980). The Eighth Circuit has recently restated:
Despite the protections of the Fourth Amendment, and the preference for search warrants, a search without a warrant is legal when "justified by both probable cause and exigent circumstances."
United States v. Walsh, 299 F.3d 729, 733 (8th Cir. 2002) (internal citation and quotation omitted). In certain narrow situations, therefore, exigency may be substituted for a warrant, but probable cause must be present before either a warrant or exigency will allow a search.
"Probable cause exists when, given the totality of the circumstances, a reasonable person could believe there is a fair probability that contraband or evidence of a crime would be found in a particular place."
United States v. Fladten, 230 F.3d 1083, 1085 (8th Cir. 2000).
Kleinholz v. United States, 339 F.3d 674, 676 (8th Cir. 2003). Thus, "[t]he Fourth Amendment demonstrates a `strong preference for searches conducted pursuant to a warrant,' . . . and the police are more likely to use the warrant process if the scrutiny applied to a magistrate's probable-cause determination to issue a warrant is less than for warrantless searches." Ornelas v. United States,
517 U.S. 690, 699 (1996) internal citation omitted.
Heyd's Person
The officers would have been justified in conducting a pat-search for weapons immediately after detaining Heyd under the circumstances. However, Officer Watson stated that he did not conduct the pat-search until after he asked Heyd whether he had a weapon or drugs on his person, and Heyd had responded that he had some marijuana in his pocket. When Officer Watson performed the pat-search for weapons, he found no weapon on Heyd. The government did not argue, and could not have argued credibly, that during the pat-search the officers felt an object "whose contours or mass" made it readily identifiable as contraband, such as could justify a search of Heyd's pocket and a seizure of the marijuana. See Minnesota v. Dickerson, 508 U.S. 366, 375-76 (1993). Moreover, during this time there is no evidence that Heyd was violent or that he posed a risk of harm to the officers or others. Thus, at the time the officers placed Heyd in custody, and disregarding the statement given in violation of the Fifth Amendment, the officers simply had no facts to suggest that there was a reasonable basis for searching Heyd; no facts to demonstrate that Heyd had been involved in the commission of a crime; and no facts to justify either a search of Heyd or his arrest.
Like Judge Gossett, I am persuaded that the evidence regarding Heyd's possession of marijuana must be suppressed because there is no evidence that Heyd was advised of his rights under Miranda before he was asked for self-incriminating information regarding whether he possessed weapons or drugs; and, absent that statement, the police officers had no probable cause for searching Heyd. Certainly there were no exigent circumstances present. Accordingly, I will grant the motion to suppress Heyd's statement that he possessed marijuana and the evidence relating to Heyd's possession of an infraction amount of marijuana.
Apartment No. 2
With regard to the search of Apartment No. 2, there is no dispute that the police officers' entry into Heyd's apartment was without his consent, and, initially, without a warrant. I am persuaded that a police officer pulled the keys from Heyd's pocket, entered his apartment, and performed, at a minimum, a protective sweep of the premises. Thus, the question becomes whether the police officers were justified in conducting the sweep, and in searching Heyd's apartment.
Even without a warrant, police officers are allowed to enter a suspect's home provided that they have probable cause and there are exigent circumstances present. "Probable cause exists when the application for a search warrant `presents sufficient facts to justify a prudent person in the belief that there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" United States v. Hiveley, 61 F.3d 1358, 1360 (8th Cir. 1995) quoting United States v. Riedesel, 987 F.2d 1383, 1390 (8th Cir. 1993). Observations made under the plain view doctrine are properly incorporated into a warrant affidavit for purposes of establishing probable cause when three conditions are satisfied: 1) the officers' initial intrusion must be lawful; 2) the discovery of the evidence must be inadvertent; and 3) the incriminating nature must be apparent. See United States v. Raines, 243 F.3d 419, 421-22 (8th Cir.) cert. denied 532 U.S. 1073 (2001).
The only possibly legitimate reason for entering Apartment No. 2 was to conduct a protective sweep. The government argues that the police had the right to conduct a sweep of Apartment No. 2 under Maryland v. Buie, 494 U.S. 325 (1990). In that case, the Supreme Court identified an exception to the Fourth Amendment's warrant requirement to conduct a protective sweep. "A "protective sweep" is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding." Id. at 327. The Supreme Court held, however, that "there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Id. at 334.
I agree with Judge Gossett that Buie lends little support to the lawfulness of the officers' search in this case. The protective sweep allowed in Buie and the intrusion into Heyd's apartment can be easily distinguished. The protective sweep in Buie was performed immediately after and incident to the suspect's arrest, and the arrest was made at the entrance to the premises. The protective sweep of Heyd's apartment was not made incident to a valid arrest, and the invalid arrest occurred on the walkway outside of Heyd's apartment after he had locked his apartment door. Indeed, Officer Watson agreed that he had observed Heyd locking the apartment door. When an arrest is made outside an individual's home, a search of the home usually is not justified. Vale v. Louisiana, 399 U.S. 30, 33-34 (1970). The government's argument, that the officers needed to sweep Apartment No. 2 because it has a window from which the outside of Apartment No. 1 is visible, is simply insufficient to constitute an articulable suspicion that a dangerous individual might be present under Buie.
Because the officers had no facts to support an articulable suspicion that a dangerous individual was hiding in Heyd's apartment, the officers' initial intrusion into the apartment to conduct a protective sweep was unlawful. Accordingly, under Raines, the presence of contraband items that the officers observed in plain view during the protective sweep could not be used in the affidavit. 243 F.3d at 421-22. I agree with Judge Gossett that the police officers entered Apartment No. 2 to conduct a protective sweep without legal justification, and therefore, the evidence observed in plain view should not have been included in the application for the search warrant.
Statements made in the affidavit offered in support of the search warrant that should not have been in the affidavit include the fact that marijuana was found on the Defendant, and the fact that items considered to be drug paraphernalia were observed in the Defendant's apartment. When these statements are redacted from the affidavit offered in support of the application for a search warrant, as they must because the information was gathered illegally, there remain insufficient facts to justify a prudent person in the belief that there was a fair probability that contraband or evidence of a crime would have been found in Apartment No. 2. See Hiveley, 61 F.3d at 1360. The only lawfully-obtained information possessed by officers at the time they entered Apartment No. 2 was that Heyd had just left his apartment, where he had been with his girlfriend, his neighbor, Cecilio Rodriguez, and Rodriguez's children, and that Heyd had locked the door behind them as they left the premises. These facts do not establish probable cause. Absent probable cause, the search of Heyd's premises was unconstitutional unless this Court finds that the police officers executed the warrant with the good faith belief that it was valid. See United States v. Leon, 468 U.S. 897, 918 (1984).
The United States Supreme Court, observed in Michigan v. Tucker, 417 U.S. 433, 447 (1974), and reiterated in United States v. Peltier, 422 U.S. at 539:
The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater
degree of care toward the rights of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.
United States v. Leon, 468 U.S. at 919. Against this background, the
Leon Court stated: "when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope" excluding the evidence will not "further the ends of the exclusionary rule," because, "[i]n most such cases, there is no police illegality and thus nothing to deter."
Id. at 920-921.
The undisputed evidence is that Heyd protested the officers' entry into his apartment, and that he did so continuously and loudly. If Heyd admitted that he had marijuana in his pocket, this admission was made before any police officer advised him of his rights against self-incrimination. Allee's testimony about the police officer retrieving the keys in Heyd's pockets, trying the keys in the lock of Apartment No. 2 until he found one that worked, pulling Heyd into the apartment, and about Heyd's continuous protestations, is credible. Contrasting the detail of Allee's testimony with the lack of recollection and knowledge apparent in the testimony of Sergeant Rodriguez and Officer Watson about their entry into Apartment No. 2, persuades me that, under the totality of the circumstances, the police officers' reliance on the search warrant (which contained more information about Rodriguez and Apartment No. 1 than about Heyd and Apartment No. 2) to perform the search of Apartment No. 2 does not fit the good faith exception described in United States v. Leon.
Some police officer, although Sergeant Gonzalez, Officer Watson and this Court do not know who, found the key to Apartment No. 2 that unlocked the door, and, without probable cause and exigent circumstances, led other police officers into Heyd's apartment. Once in the apartment, the police officers began searching Heyd's apartment immediately, not waiting for a warrant to issue. When the warrant was issued, the judge's probable cause determination may well have been based on illegally-obtained evidence. The same officers who searched Apartment No. 2 were the same officers who knew that their business at the apartment building was with Cecilio Rodriguez and Apartment No. 1, and who gained entry into Apartment No. 2 without probable cause and without a credible reason to perform a protective sweep. Apparently none of these police officers was acquainted with Glen Heyd before December 9, 2002. The application for the warrant to search Apartment 2 contained many facts about Cecilio Rodriguez and Apartment No. 1, but the only fact known to law enforcement to link the two men was that they were neighbors. Police could point to nothing but the infraction amount of marijuana and the presence of Heyd with Rodriguez (and a woman and two children who were not mentioned to the judge who issued the warrant) to justify their search of Apartment No. 2.
I also agree with Judge Gossett that even if Heyd had told Officer Watson that he possessed an infraction amount of marijuana after he had been advised of his Miranda rights, or I might add, had the discovery been inadvertent, then issuance of a citation in lieu of arrest or continued custody, appears to be the appropriate response by law enforcement, and without more, there is no factual basis for seeking to search someone's home. See Report Recommendation at 16-17, Neb. Rev. Stat. § 29-427 (Reissue 1995).
Based on these facts, I find that the officers executed the search warrant without an objectively reasonable reliance on the judge's determination of probable cause, and the good faith exception of United States v. Leon, 468 U.S. 897 (1984), does not apply. The evidence seized as a result of the search, including the ammunition that is identified in the Indictment, shall be excluded from evidence at trial. Wong Sun v. United States, 371 U.S. 471 (1963).
Conclusion
Having conducted a de novo review of the record, and giving consideration to the briefs and arguments of counsel, I conclude that Judge Gossett's analysis leads to the result required by law. For the reasons provided in this Memorandum, Judge Gossett's Report and Recommendation shall be adopted, and the Defendant's Motion to Suppress shall be granted.
IT IS ORDERED:
1. The Plaintiff's Objection to the Report and Recommendation (Filing No. 50) is denied; 2. The Report and Recommendation (Filing No. 47) is adopted; and 3. The Defendant's Motion to Suppress (Filing No. 10) is granted.