Opinion
No. CR98-3018-MWB.
February 17, 1999.
REPORT AND RECOMMENDATION REGARDING MOTION TO SUPPRESS
I. INTRODUCTION
A motion to suppress (Doc. No. 16) was filed on February 2, 1999, by defendant David Brian Ammerman ("Ammerman"). Ammerman asks the court to suppress evidence obtained as a result of a warrantless search of his person and of his automobile in Clarion, Iowa, on May 21, 1998. He also asks the court to suppress, as the "fruit of the poisonous tree," evidence seized under a warrant authorizing a further search of his automobile and warrants authorizing searches of his residence and the residence of Tammi Smith. Finally, he asks the court to suppress a statement he gave to Wright County Sheriff's Department Captain Fred C. Meeder in the Humboldt County Jail on July 20, 1998, while he was incarcerated on state charges.
On February 9, 1999, the court held a hearing on Ammerman's motion. Assistant United States Attorney Steven Colloton appeared on behalf of the United States of America ("government") and attorney Clemens Erdahl appeared on behalf of Ammerman. Officer Che Matthew Hanson ("Hanson") of the Clarion Police Department and Deputy Sheriff James Lester ("Lester") of the Wright County, Iowa, Sheriff's Department testified on behalf of the government. Ammerman testified in his own behalf. The court has considered the testimony and other evidence submitted at the hearing and the briefs and arguments of the parties, and now considers the motion to suppress to be fully submitted.
II. FINDINGS OF FACT
At 4:45 a.m. on May 21, 1998, Officer Hanson was patrolling alone in his squad car when he observed a blue Buick Regal, with its lights on, parked adjacent to a Clarion city street in the parking lot of a vacant general store. Hanson pulled his car into the parking lot and positioned it so that its headlights shined directly at the driver's side of the Buick Regal. He noticed that the car had one occupant, who was sitting in the driver's seat in a reclined position. The occupant of the vehicle did not move, so Hanson moved his car directly behind the Buick and called the Buick's licence plates in to the dispatcher.
Hanson left his vehicle and walked up to the Buick. He was wearing his patrol uniform and was clearly identifiable as a police officer. As he approached the driver's door, Hanson shined his flashlight into the rear seat of the Buick and noticed the handle and trigger of a partially obscured gun on the rear seat immediately behind the driver. Hanson then shined his light at the vehicle's occupant, who leaned forward in his seat. Hanson recognized the occupant as David Ammerman. Ammerman explained to Hanson that he was waiting for a friend to go to work. Hanson told Ammerman to get out of the car, and Ammerman complied. As Ammerman was getting out of the vehicle, Hanson used his portable radio to call for back up. Hanson immediately handcuffed Ammerman with his hands behind his back, advising Ammerman that he was doing so to protect both Ammerman and himself. Hanson told him that he was investigating a possible concealed weapons charge under Iowa Code § 724.4.
During his direct examination, Hanson testified that he knew Ammerman from a photograph at the Wright County Sheriff's Office, from seeing him around Clarion, and from a state-wide report about Ammerman issued a few years earlier concerning a possible assault by Ammerman involving the discharge of a .357 magnum pistol at his wife.
Iowa Code § 724.4 provides:
Except as otherwise provided in this section, a person who goes armed with a dangerous weapon concealed on or about the person, or who, within the limits of any city, goes armed with a pistol or revolver, or any loaded firearm of any kind, whether concealed or not, or who knowingly carries or transports in a vehicle a pistol or revolver, commits an aggravated misdemeanor."
IOWA CODE ANN. § 724.4 (West 1993).
Hanson then conducted a pat-down search of Ammerman's person. According to Hanson, during the search he determined that there was nothing of significance in Ammerman's back pants pockets, but while patting down Ammerman's left front pants pocket he felt a hard metal object that he suspected might be a weapon. Hanson reached into the pocket and, before encountering the metal object, felt a plastic baggy. Hanson removed the baggy from the pocket and placed it on the trunk of his patrol car. He then reached into the pocket and pulled out a money clip. The plastic baggy and the money clip were admitted into evidence as Exhibit 6. From the appearance of the baggy and from his experience, Hanson strongly suspected that it contained methamphetamine. Hanson asked Ammerman about the weapon and the powdery substance in the baggy, and Ammerman told Hanson that the weapon was a pellet gun but made no statement concerning the baggy.
The money clip is about two inches square, with a protruding design on the top and retractable nail files on either side.
Shortly after this conversation, Deputy Lester arrived, and at Hanson's request he examined the baggy. Lester agreed with Hanson's conclusion that the baggy probably contained methamphetamine. Hanson and Lester decided to conduct a more thorough search of Ammerman, and seized money and a pager from his person. Hanson then placed Ammerman in the back of his patrol car while Lester began a search of Ammerman's vehicle. Hanson joined in the search a short time later. In plain view in the back of the vehicle, along with the gun, the officers observed a butane lighter, bottles apparently containing commercial solvent and window cleaner, and a box of tin foil. The officers then examined the gun and determined that it was, in fact, a pellet gun. The officers continued their search of the vehicle and found a test tube in plain view in the front ashtray and a Pyrex measuring cup in a sack on the floor of front passenger side of the vehicle.
Before they completed their search, Hanson and Lester detected a strong odor inside the vehicle. Lester testified that based on his previous work on a methamphetamine laboratory case, he believed that the odor was consistent with that of a methamphetamine laboratory. At that point, Lester and Hanson walked away from the vehicle, believing that it might be a portable methamphetamine laboratory, and called for assistance. A warrant to search the vehicle was obtained from a Wright County judge, and the Buick was searched more thoroughly by other officers. Ammerman was transported to the Wright County Sheriff's Office, where he was advised that he was under arrest and given a Miranda warning.
Ammerman refused to sign the written Miranda form.
During direct examination, Hanson gave the impression that he had had little contact with Ammerman before this encounter. On cross examination, Hanson stated that he had seen Ammerman on previous occasions around Clarion, but in different vehicles, and that on the night in question he did not know that the man in the blue Buick was Ammerman until he walked up to the vehicle with his flashlight. Later in his cross examination, Hanson was equivocal when questioned about whether he had seen Ammerman on the previous evening, stating that he was not "100 percent certain" that Ammerman was in the Buick as he was approaching the vehicle immediately before the search.
In an attachment to the search warrant for Tammi Smith's house (Exhibit 4A), Hanson made the following statement:
On May 20, 1998 [the day before the search] I was on duty as a police officer for the City of Clarion. Approximately 9:30 p.m. I was on routine patrol in the 700 block of First Avenue SE. While in this block, I saw a blue Buick Regal parked in the driveway on 620 First Avenue SE. I saw a person known to me as David Ammerman walking to the front door.
Ammerman's testimony was largely consistent with the testimony of Hanson and Lester, with a few material exceptions. Ammerman testified that he had been stopped by Hanson on three previous occasions, and that on the evening before this incident Hanson had followed his vehicle around Clarion. Ammerman said that he was sleeping when Hanson first approached his vehicle, and that he only woke up when Hanson shined the flashlight in his window. According to Ammerman, as Hanson approached his vehicle, he said "gun in the back seat, get out of the car." Ammerman testified that as he got out of the car he told Hanson that the pistol was a pellet gun. Most significantly, Ammerman testified that as Hanson was patting him down, he located the money clip in his right front pants pocket, which he retrieved, and only then reached into Ammerman's left front pants pocket and found the drugs. According to Ammerman, he did not put the drugs and the money clip in the same pocket because the rough edges on the money clip might tear a hole in the baggy of drugs.
Later on May 21, 1998, officers obtained three search warrants: one for the vehicle, one for Ammerman's residence, and one for the residence of Tammi Smith (Exhibits 2A, 3, and 4A, respectively). On July 20, 1998, while in custody on state charges in connection with the May 21, 1998, stop, Ammerman gave a statement to Captain Meeder of the Wright County Sheriff's Office (Exhibit 5) after requesting to meet with him. Captain Meeder did not advise Ammerman of his Miranda rights, but told Ammerman that he did not want to talk about Ammerman's case outside the presence of Ammerman's attorney. Ammerman told Meeder that he "didn't trust his attorney and that if his attorney knew he wanted to talk to law enforcement, that the very people he would be trying to make defendants would find out." Meeder reminded Ammerman again that he did not want to discuss Ammerman's case. Nevertheless, Ammerman proceeded to make numerous incriminating statements.
III. LEGAL ANALYSIS A. Did Officer Hanson Have the Right to Approach and Look Inside Ammerman's Vehicle?
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. CONST. amend. IV. "The touchstone of the fourth Amendment's promise is `reasonableness' which generally — though not always — translates into a warrant requirement." United States v. Hatten, 68 F.3d 257, 260 (8th Cir. 1995) (citations omitted).
The Supreme Court has recognized an exception to the warrant requirement which allows an officer to "seize" a person for a brief investigatory stop, not amounting to an arrest, if the officer is "able to point to specific and articulable facts" that give rise to a reasonable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). This rationale also applies to stops of automobiles. United States v. Chhunn, 11 F.3d 107, 109 (8th Cir. 1993). In this case, however, Officer Hanson did not stop Ammerman's vehicle, because it was already parked. Therefore, the only question here is whether Hanson had the right to approach Ammerman's vehicle and look inside it.
"[P]olice officers are not only permitted, but expected, to exercise what the Supreme Court has termed `community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.'" United States v. King, 990 F.2d 1552, 1560 (10th Cir. 1993) (citing Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973)); see also United States v. Smith, 162 F.2d 1126, 1126 (8th Cir. 1998). However, simply because an officer claims a community caretaking basis for his investigation does not eviscerate a person's Fourth Amendment rights. United States v. King, 990 F.2d at 1560 (citing Camara v. Municipal Court, 387 U.S. 523, 530, 87 S.Ct. 1727, 1731, 18 L.Ed.2d 930 (1967)). The test of whether the officer's actions were permissible remains the same: the officer must have specific articulable facts. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975).
Officer Hanson possessed sufficient specific articulable facts in deciding to investigate the Buick. In the early morning hours of May 21, 1998, Officer Hanson observed an automobile with its lights on, parked in the parking lot of a vacant business. Hanson shined his headlights at the driver's side of the automobile and noticed that its sole occupant was sitting reclined in the driver's seat and not moving. From the officer's perspective, the occupant of the vehicle may have been in trouble or in need of assistance. Under these circumstances the officer had the right to approach the vehicle to see if there were any problems. See United States v. Wilson, 758 F.2d 304, 306 (8th Cir. 1985) (holding that circumstances — car running, occupants appearing unconscious, and car parked in fire lane — comprised reasonable suspicion to justify Terry stop of auto).
Not only did Hanson possess justification under Terry to approach Ammerman's car, but he also had the right to use a flashlight to look inside the automobile. "There is no legitimate expectation of privacy shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers." Texas v. Brown, 460 U.S. 730, 739-40, 103 S.Ct. 1535, 1542, 75 L.Ed.2d 502 (1983); see also United States v. Hatten, 68 F.3d at 261 ("[A] person who parks a car — which necessarily has transparent windows — on private property does not have a reasonable expectation of privacy in the visible interior of his car.") (citations omitted); United States v. Garner, 907 F.2d 60, 62 n. 2 (8th Cir. 1990) (noting well-established rule that use of searchlight is not unconstitutional), cert. denied, 498 U.S. 1068, 111 S.Ct. 787 (1991).
Thus, Officer Hanson did nothing wrong when he approached and looked inside of Ammerman's automobile.
B. Did Officer Hanson Have the Right to Conduct a Terry Pat-Down Search of Ammerman?
The United States Supreme Court has held a warrantless pat-down search for weapons is permissible when there are "specific and articulable facts which, taken together with rational inferences from those facts," would lead a police officer reasonably to believe the suspect is "armed and presently dangerous to the officer or to others." Terry, 392 U.S. at 21, 24, 88 S.Ct. at 20 (1968); accord United States v. Glenn, 152 F.3d 1047, 1049 (8th Cir. 1998); United States v. Menard, 95 F.3d 9, 10-11 (8th Cir. 1996). "To decide whether there is a reasonable, articulable suspicion that a suspect is armed and presently dangerous, we consider the totality of circumstances known to the officer at the time of the search. See Glenn, 152 F.3d at 1049; Menard, 95 F.3d at 11-12; United States v. Abokhai, 829 F.2d 666, 670 (8th Cir. 1987). After Officer Hanson observed the gun in the back seat of Ammerman's automobile, it was reasonable for him to conduct a protective Terry pat-down search of Ammerman. It was also permissible to handcuff Ammerman before conducting the pat-down search. United States v. Saffeels, 982 F.2d 1199, 1206 (8th Cir. 1992), vacated on other grounds, 510 U.S. 801 (1993).
C. Was the Discovery of the Methamphetamine in Ammerman's Pocket the Product of a Lawful Terry Search?
The most serious issue raised by this motion to suppress is whether Officer Hanson discovered the baggy of methamphetamine pursuant to a lawful Terry pat-down search. According to Hanson's testimony, he discovered the drugs while removing an object from Ammerman's pocket that he thought might be a weapon. According to Ammerman's testimony, Hanson removed the drugs from Ammerman's pocket after he had removed the suspected weapon from a different pocket. If Hanson's testimony is believed, the seizure of the drugs was lawful. United States v. Williams, 139 F.3d 628, 630 (8th Cir. 1998) ("When an officer discovers contraband during the course of a legitimate Terry search, `the Fourth Amendment does not require its suppression.'") (citing Michigan v. Long, 463 U.S. 1032, 1050, 103 S.Ct. 3469, 3481, (1983)). If, on the other hand, Ammerman's testimony is believed, the officer exceeded the scope of his Terry search, and both the search and the seizure of the drugs were unlawful. The government has the burden of proof. United States v. Riedesel, 987 F.2d 1383, 1388 (8th Cir. 1993) (noting in warrantless search, government bears burden of showing need for exemption from warrant and that its conduct fell within bounds of exception).
At the suppression hearing, the government disclaimed any reliance on the "plain feel" exception to the warrant requirement. See Minnesota v. Dickerson, 508 U.S. 366, 375-77, 113 S.Ct. 2130, 2137 (1993); United States v. Williams, 139 F.3d 628, 630 (8th Cir. 1998); United States v. Craft, 30 F.3d 1044 (8th Cir. 1994); United States v. Hughes, 15 F.3d 798, 802 (8th Cir. 1994).
In deciding whom to believe, the record provides the court with little direct guidance. Both witnesses gave responsive, consistent testimony, and both appeared to be credible. Although the officer was less than forthcoming about his prior contacts with Ammerman, including his surveillance of Ammerman in a blue Buick the previous evening, his recollection was within the limits of what could be expected from an officer involved in daily public encounters and who, over time, is not able to keep the details exactly straight. On the crucial detail of whether or not the drugs were in the same pocket as the money clip, the court believes that both witnesses are aware of the significance of their testimony on this point and that they both recall the truth, although, obviously, only one told the truth in court. Deciding which one is telling the truth is not an exact science or an easy task. The court must examine the limited clues it has at it's disposal and simply make a decision.
One important element of this analysis is an examination of the motives of the witnesses to tell the truth or to lie. Ammerman had an obvious motive to lie — he did not want to go to a federal prison, possibly for a long time. The government argues that Officer Hanson had no motive to lie, and in fact, that the consequences of "detected perjury" would be so devastating, including potential criminal penalties and the end of the officer's career, that he was unlikely to lie. Res. to Mot. to Suppress at 8. While this argument is persuasive in the abstract, it has little legitimacy in the real world. Every officer has an inherent interest in having his or her conduct adjudged lawful, and no officer would be happy with the prospect of having an important drug arrest nullified by a "legal technicality." Furthermore, the risk of a criminal penalty or career consequence to an officer from a "one-on-one" swearing match with a drug defendant is minimal, if not non-existent. Thus, the court finds that Officer Hanson, too, had a motive to lie — he wanted to have the legality of his search upheld — although his motive was not as strong as Ammerman's.
As support for Hanson's testimony, the government argues that if Hanson had wanted to lie, he would have relied on "plain feel" to justify the search and seizure of the drugs, which would not have contradicted what the officer knew would be Ammerman's testimony. The court does not find this argument to be persuasive. There is nothing in the record to suggest that Hanson was aware of the plain feel exception at the time of his encounter with Ammerman. Furthermore, even if he were aware of the exception, he would also have known that the applicability of the exception in these circumstances would have been questionable since at the time of the pat-down he had no knowledge that would have made it "immediately apparent" that the baggy contained drugs. See, e.g., Williams, 139 F.3d at 630 (at time of pat-down, officer had knowledge that defendant had recently engaged in a suspected drug transaction).
On the other hand, the court believes that Officer Hanson understood and abided by his oath to tell the truth at the suppression hearing. Also, although the government offered no evidence to impeach Ammerman's testimony, in Ammerman's statement to Captain Meeder he admitted that, at the time of the search he was a substantial dealer of methamphetamine. Exhibit 5. This was an admission to conduct that would constitute a felony conviction, cf. Fed.R.Evid. 609, and the court finds that it detracts from his credibility. Although this is a difficult and close question, the court finds that Officer Hanson discovered the baggy of methamphetamine in the same pocket as the money clip, and as he was attempting to retrieve the money clip from the pocket to see if it was a dangerous weapon ( United States v. Swann, 149 F.3d 271, 276-77 (4th Cir. 1998); United States v. Strahan, 984 F.2d 155, 158 (6th Cir. 1993)), the baggy came into plain view ( Williams, 139 F.3d at 630) and was seized as a part of a lawful Terry pat-down search. When an officer discovers contraband during the course of a legitimate Terry search, "the Fourth Amendment does not require its suppression." Michigan v. Long, 463 U.S. 1032, 1050, 103 S.Ct. 3469, 3481, 77 L.Ed.2d 1201 (1983); Williams, 139 F.3d at 630.
D. Did the Officers Have the Right to Conduct a Warrantless Search of the Buick?
The Fourth Amendment guarantee of the "right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures" is "preserved by a requirement that searches be conducted pursuant to a warrant issued by an independent judicial officer." United States v. Caves, 890 F.2d 87, 89 (8th Cir. 1989) (citing California v. Carney, 471 U.S. 386, 390, 105 S.Ct. 2066, 2068-69, 85 L.Ed.2d 406 (1985)). "In certain circumstances, however, a search may comport with the fourth amendment reasonableness standard even though not conducted pursuant to a warrant. Id. (citation omitted). One such exemption to the warrant requirement is the so-called `automobile exception,' which allows a police officer who has lawfully made a roadside stop of an automobile to search that vehicle without a warrant if probable cause exists to believe that contraband or evidence of criminal activity is located inside." Caves, 890 F. at 89 (citing Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) and Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925)). The automobile exception is recognized because "[t]he mobility of automobiles . . . `creates circumstances of such exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible'" and because "`the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office.'" Carney, 471 U.S. at 391, 105 S.Ct. at 2069 (quoting South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000 (1976)).
As Officer Hanson approached Ammerman's automobile, he observed a gun in the back seat of the vehicle. At that point, Officer Hanson had the right to conduct a Terry search of the vehicle. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694 (1981) (automobiles are subject to Terry stops); accord United States v. Chhunn, 11 F.3d at 109-10 (8th Cir. 1993). Furthermore, possession of a pistol in an automobile is a violation of Iowa Code § 724.4, so this observation provided the officer with probable cause to conduct a warrantless search of the automobile. United States v. Patterson, 140 F.3d 767, 773 (8th Cir.), cert. denied, __ U.S. __, 119 S.Ct. 245 (1998); see also United States v. Smith, 162 F.3d 1226, 1226-27 (8th Cir. 1998). After Officer Hanson discovered the baggy in Ammerman's pocket, there was overwhelming probable cause to search the vehicle.
The fact that upon closer inspection the gun was revealed to be a pellet gun is immaterial. The question is whether, under the totality of the circumstances, when the officer commenced searching the vehicle he had a reasonable belief that the vehicle contained evidence of criminal activity. United States v. Caves, 890 F.2d 87, 89 (8th Cir. 1989); see also Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983); Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949). The court finds that the pellet gun gave every appearance of being a real gun and therefore credits Hanson's similar assumptions. The fact that Ammerman told the officer that the gun was only a pellet gun before the search of the automobile is also immaterial. The officer was reasonable in his decision to examine the gun himself rather than accepting Ammerman's representations about the nature of the gun.
E. Did Officers' Search of the Vehicle Exceed the Lawful Scope of Their Search?
Hanson and Lester did not exceed the lawful scope of their search. In United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), the Court clarified the automobile exception announced in Carroll. The Ross Court addressed "the extent to which police officers — who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere within it — may conduct a probing search of compartments and containers within the vehicle whose contents are not in plain view." Ross, 456 U.S. at 800, 102 S. Ct. at 2160. The Court held that the police "may conduct a search of the vehicle that is as thorough as a magistrate could authorize in a warrant 'particularly describing the place to be searched.'" Id. (quoting U.S. CONST. amend. IV); but see United States v. Watts, 7 F.3d 122, 125-26 (8th Cir. 1993) (unlawful for police to execute search after they learn that probable cause no longer exists). In the instant case, the observation of the gun in the back seat of the car coupled with the discovery of the baggy of drugs on Ammerman supplied the officers with probable cause. The officers then lawfully conducted a probing search of the car's interior as well as its containers until a strong odor they associated with a possibly volatile portable methamphetamine laboratory cut their search short.
F. Was the Subsequent Search of Ammerman's Automobile, and the Searches of Ammerman's and Tammi Smith's Residences, "Fruit of the Poisonous Tree"?
Since the court has upheld the legality of the pat-down search of Ammerman and the initial search of his automobile, the subsequent searches of his automobile, his residence, and the residence of Tammi Smith could not have been the fruit of the poisonous tree.
To the extent the court has reservations about the probable cause to support the search of Tammi Smith's residence, those concerns are allayed by the fact that the government does not, presently, intend to offer anything into evidence from that search, Res. to Mot. to Suppress at 17-18, and by the likelihood that Ammerman does not have standing to challenge that search, Rakas v. Illinois, 439 U.S. 128, 138, 99 S.Ct. 421, 58 L.Ed.2d 387 (1979).
G. Should the Court Suppress Ammerman's August 6, 1998 Statement?
Since the court has upheld the legality of the pat-down search of Ammerman and the initial search of his automobile, his statement to Captain Meeder on August 26, 1998, could not have been the fruit of the poisonous tree. Furthermore, the statement was entirely voluntary, made against the advice of the officer, and not in response to any interrogation. See Rhode Island v. Innis, 446 U.S. 291, 299-300, 100 S.Ct. 1682, 1688-89, 64 L.Ed.2d 297 (1980); accord United States v. Turner, 157 F.3d 552, 556 (8th Cir. 1998) (holding custodial statement admissible if it is voluntary and not product of interrogation).
IV. CONCLUSION
For all the foregoing reasons, the defendant's motion to suppress should be denied.
IT IS RECOMMENDED that, 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, the defendant's motion to suppress be denied.
Objections must specify the parts of the report and recommendation to which objections are made. Objections 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.