1

The Honorable Joseph F. Bataillon, United States District Judge for the

District of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-1054

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Darryl L. Winborn, *

* [PUBLISHED]

Appellant. *

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Submitted: June 19, 2003

Filed: September 18, 2003 

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Before BOWMAN, BEAM, and RILEY, Circuit Judges.

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PER CURIAM.

Darryl Winborn was convicted of conspiracy to distribute cocaine and

possession of cocaine after he was discovered transporting some five kilograms of the

drug. See 21 U.S.C. §§ 841(a)(1) & 846 (2000). Winborn appeals his sentence,

arguing that the District Court1

 erred when it denied his motion to suppress the drugs

and when it declined to award him a two-level minor participation reduction in his

base offense level. We affirm.
2

"Ground zero" is the term commonly used to describe the area where the twin

towers of the World Trade Center stood prior to the terrorist attack on September 11,

2001.

-2-

Winborn was traveling aboard a Greyhound bus from Los Angeles to New

York City. The bus stopped at the Omaha Greyhound bus station, where members

of the Nebraska State Patrol's Commercial Interdiction Unit were working. In one of

the luggage bays beneath the bus, Officer Richard Lutter found only one bag. The

bag had a hard bottom, soft sides, was only partially full, and was new. The bag also

had only one piece of identification on it, the computer-generated tag issued by

Greyhound, which contained the name of the passenger it was issued to (Winborn).

Officer Lutter lifted the bag by its handle and determined it was unusually heavy

given the fact that it was only partly full. Lutter then placed his hand on the bag and

placed his weight on it as he leaned into the bin to examine the luggage in the bin on

the opposite side of the bus. This action generated what Lutter termed a smell that

was "not familiar," but that was not indicative of narcotics. He then examined the

computer tag and determined that the bag originated in a known "source area," San

Jacedro, California. Lutter, who was in plain clothes and was not displaying his

firearm, also noticed that Winborn, who was outside the bus, was watching him

inspect the bag. Lutter was joined by other plain-clothes officers who tested the bag's

weight, looked for identification, and discussed using a dog to check for narcotics.

The officers also noted that Winborn was watching their inspection of his luggage

and that, when the officers made eye contact with Winborn, he walked away. Lutter

then spoke to Winborn, presented his badge and identification, informed Winborn

that he was not under arrest, and asked if Winborn would be willing to speak with

him; Winborn agreed. Thereafter, Winborn provided identification and his bus ticket

and said he was going to New York to see a friend and to visit ground zero.2

 After

explaining the reasons for his presence, Lutter asked if Winborn would consent to

have his bag searched and Winborn again agreed. The officers searched the bag and

found approximately five kilograms of cocaine in it.
-3-

We review the District Court's findings of fact related to a motion to suppress

for clear error and its conclusions of law de novo. United States v. Gwinn, 191 F.3d

874, 877 (8th Cir. 1999). The District Court determined that although Officer Lutter's

'feeling up' of the bag prior to the consented-to search was itself a "search" that

violated Winborn's Fourth Amendment rights, Winborn's freely-given consent to the

search that produced the drugs cured any taint from the previous impermissible

search. The United States urges that the initial investigation of Winborn's bag was

not an illegal search and that we should affirm on that ground. See Jaffke v. Dunham,

352 U.S. 280, 281 (1957) (per curiam) (noting that a successful party may have its

verdict sustained on any ground supported by the record even if the issue was not

raised in a cross appeal). Although we are not convinced that the District Court was

correct when it determined that the initial investigation violated Winborn's Fourth

Amendment rights, we need not (and do not) address this issue because, in any event,

we conclude that the District Court properly held that Winborn's consent to the later

search cured any taint from the first search. 

To reach our conclusion that Winborn's freely-given consent to search his bag

cured any taint,we must first consider several factors—Winborn's age, his education

level, his knowledge of his Miranda rights, and whether he was intoxicated—to

determine whether he voluntarily gave his consent. United States v. Chaidez, 906

F.2d 377, 381 (1990). None of these factors suggest that Winborn's consent was not

voluntary for he: is in his forties; completed high school, took several college courses,

and served in the military; has a long-standing association with the criminal justice

system and is familiar with his Miranda rights; and was not intoxicated on the day in

question. As we must, we next consider whether several other factors—the temporal

proximity between the illegal search and the consent, the presence of intervening

circumstances, and the purpose and flagrancy of the official misconduct—allow us

to conclude that the taint of any illegal search has been cured. Brown v. Illinois, 422

U.S. 590, 603–04 (1975). Here, the initial search found unlawful by the District

Court and Winborn's consent to the later search occurred close in time. We have

previously observed that "[t]emporal proximity weighs in favor of voluntariness."
-4-

United States v. Moreno, 280 F.3d 898, 901 (8th Cir. 2001). There are no

intervening circumstances that support or detract from our conclusion that Winborn's

consent was freely given. In the circumstances of this case, we think their absence

amounts to very little for Winborn's consent was clear. He first agreed to speak with

the officers after he was told that he was not under arrest and that he was free to leave

and, in short order, he agreed to have his bag searched. Finally, the officers' actions

in this case were not for any unlawful purpose and were decidedly not flagrant. In

these circumstances, even if there was a prior illegal search, Winborn's freely-given

consent purged the taint and the District Court properly denied his motion to

suppress. See, e.g., United States v. McGill, 125 F.3d 642, 644–45 (8th Cir. 1997),

cert. denied, 522 U.S. 1141 (1998).

Finally, Winborn contends that he was entitled to a two-level, minorparticipation reduction in his base-offense level. See U.S.S.G. § 3B1.2 (2002). A

district court's interpretation of the sentencing guidelines is subject to de novo review

while its findings of fact are reviewed for clear error. United States v. Auginash, 266

F.3d 781, 785 (8th Cir. 2001). Whether Winborn was a minor participant is a factual

question that we review for clear error. United States v. Harris, 974 F.2d 84, 86 (8th

Cir. 1992). In this case, the District Court's conclusion that Winborn did not qualify

for the minor-participant departure was not clearly erroneous. Winborn was arrested

on what he admitted was his sixth trip transporting narcotics in bulk. In addition to

transporting as much as thirty kilograms of drugs on these trips across the country,

Winborn also collected payment for the drugs when he delivered them to the intended

recipients and admitted he was aware there were at least four other individuals who

were transporting similar amounts of drugs in furtherance of the conspiracy

(additional amounts of narcotics that Winborn arguably could have been, but was not,

held responsible for in the District Court’s determination of his sentence). Winborn

was not a minor participant and was not entitled to a two-level reduction in his baseoffense level.

For the reasons stated, the judgment of the District Court is affirmed.

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