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United States v. Marcos De La Torre

United States District Court, D. Nebraska

August 24, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
MARCOS DE LA TORRE, Defendant.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Chief United States District Judge.

         This matter is before the Court on the Findings and Recommendation (Filing No. 40), issued by Magistrate Judge F.A. Gossett recommending that the Motion to Suppress filed by the Defendant Marcos De La Torre (“Defendant”) (Filing No. 24), be denied. Defendant filed Objections to the Findings and Recommendation (Filing No. 42) as allowed by 28 U.S.C. § 636(b)(1)(C) and NECrimR 59.2(a). The Government has not responded to the Objections. For the reasons set forth below, the Findings and Recommendation will be adopted, the Objection will be overruled, and the Motion to Suppress will be denied.

         BACKGROUND

         Defendant is charged in a four count Indictment (Filing No. 1) with conspiracy to distribute and possess with intent to distribute 500 grams or more of a mixture or substance containing methamphetamine (Count I); possession with intent to distribute 5 grams or more of methamphetamine (Count II); distribution of methamphetamine (Count III); and possession with intent to distribute 50 grams or more of methamphetamine (Count IV). Defendant moves to suppress any and all evidence found on July 1, 2015, at Neo's Auto Repair & Collision at 4016 Hamilton Street, Omaha, Nebraska 68131(“4016 Hamilton”), pursuant to a search warrant.

         The Magistrate Judge made his substantive findings and recommendations on the record after the evidentiary hearing on Defendant's Motion to Suppress. The Magistrate Judge limited his review of the Motion to whether the search warrant was valid under the four-corners of the affidavit supporting the application for the search warrant. (See Transcript of Evidentiary Hearing, Filing No. 41 (“Tr.”), at 7.) At the evidentiary hearing, the Magistrate Judge received Government Exhibit 1 (“GE 1”). The Government's attorney represented to the Magistrate Judge that the evidence it would introduce would include a certified copy of the search warrant, underlying affidavit, return, and any related documents. (Tr. 5.) The Magistrate Judge received GE 1 for purposes of the Motion to Suppress. (Tr. 8.)

         The GE 1 received for purposes of the Court's de novo review does not include the Application for a Search Warrant and its supporting affidavit (the “Affidavit”). However, because the Magistrate Judge approved the Affidavit and signed the search warrant, the Court was able to locate the Affidavit in the CM/ECF system in USA v. Neo's Auto Repair and Collision, Case No. 8:15-mj-169, Filing No. 1. It is clear that both parties had access to and reviewed the Affidavit, and the Magistrate Judge based his Findings and Recommendation on the allegations contained therein. Thus, the Court will consider the Affidavit as part of the record on review despite not being included in GE 1. See United States v. Hayden, 759 F.3d 842, 846 (8th Cir.), cert. denied, 135 S.Ct. 691 (2014) (“[T]he district court has discretion to receive new evidence without any special justification while conducting de novo review of a magistrate judge's report and recommendation.”).

         On the day before the evidentiary hearing, Defendant filed a Motion to Continue the Suppression Hearing (Filing No. 30), a Motion for Leave to Amend the Motion to Suppress (Filing No. 31), a Motion to Amend Motion to Suppress (Filing No. 32) and a Motion to File Under Seal (Filing No. 33). In his Motions to Amend, Defendant sought a hearing under Franks v. Delaware, 438 U.S. 154 (1978) (a “Franks hearing”), asserting that certain evidence was falsely or recklessly omitted from the Affidavit. At the evidentiary hearing, the Magistrate Judge denied all but the Motion to File Under Seal. The Magistrate Judge reasoned that the request for a Franks hearing was not timely, and there was no good cause shown as to why the request could not have been made on a timely basis. (Tr. 7.) The Magistrate Judge thus limited his review to the sufficiency of the Affidavit and concluded that it was supported by probable cause. (Tr. 11.) The Magistrate Judge also concluded that even if it was not supported by probable cause, it was covered by the good faith exception to the exclusionary rule.

         STANDARDS OF REVIEW

         This case involves both an appeal of the Magistrate Judge's order on nondispositive issues and an objection to the Magistrate Judge's Findings and Recommendation.

         Defendant's arguments regarding the Magistrate Judge's denial of the nondispositive motions are appeals of a magistrate order as permitted by 28 U.S.C. § 636(b)(1)(A), and are governed by that subsection's standard of review. “A district court may reconsider a magistrate judge's ruling on nondispositive pretrial matters where it has been shown that the ruling is clearly erroneous or contrary to law.” Ferguson v. United States, 484 F.3d 1068, 1076 (8th Cir. 2007) (citing 28 U.S.C. § 636(b)(1)(A).

         Defendant's objections to the Magistrate Judge's Findings and Recommendation are governed by 28 U.S.C. § 636(b)(1)(C). Under § 636(b)(1)(C), the Court must make a de novo determination of those portions of the findings and recommendation to which a Defendant has objected. The Court may accept, reject, or modify, in whole or in part, the Magistrate Judge's findings or recommendation. The Court may also receive further evidence or remand the matter to the Magistrate Judge with instructions.

         DISCUSSION

         I. Denial of Motions to Amend and Request for a Franks Hearing

         Counsel for Defendant acknowledges that that the request for a Franks hearing was not timely, but asserts that Counsel's error in failing to make a timely request does not diminish the importance of the omitted information. The Court reviews “the denial of a request for a Franks hearing for abuse of discretion.” United States v. Jansen, 470 F.3d 762, 766 (8th Cir. 2006). There is no dispute that the request for a Franks hearing was untimely, nor is there any dispute that the evidence that is the subject of the requested Franks hearing was available to the Defendant before the deadline. Defendant's Counsel admits that he did not believe the evidence was sufficient to meet ...


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