MARK W. BENNETT, District Judge.
On March 20, 2014, a Superseding Indictment was returned against defendant Yoirlan Tome Rojas charging him with using a counterfeit access device, in violation of 18 U.S.C. § 1029(a)(1) (Counts 1 & 2), possession of fifteen or more counterfeit access devices, in violation of 18 U.S.C. § 1029(a)(3) (Count 3), money laundering, in violation of 18 U.S.C. § 1956(a)(1) (Count 4), and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1) (Counts 5 & 6).
On September 9, 2014, Rojas filed a motion to suppress in which he seeks to suppress all evidence seized as a result of the search of his apartment and an adjacent storage closet pursuant to search warrants. Rojas contends that it was unlawful when police stopped him and entered onto the curtilage of his home. He also alleges the police violated his 5th Amendment rights when they asked him his address. He further contends that the search warrants lacked probable cause. Rojas finally argues that the Leon good-faith exception to the exclusionary rule, see United States v. Leon, 468 U.S. 897 (1984), should not apply because law enforcement officers could not have acted in good faith reliance on the search warrants.
The prosecution filed a timely resistance to Rojas's motion. Rojas's motion to suppress was referred to United States Magistrate Judge Leonard T. Strand, pursuant to 28 U.S.C. § 636(b). On September 29, 2014, Judge Strand conducted an evidentiary hearing and subsequently filed a Report and Recommendation on October 3, 2014, in which he recommends that Rojas's motion to suppress be denied. In his Report and Recommendation, Judge Strand concluded that the police were justified in conducting a Terry stop of Rojas. Judge Strand also found that the police were justified in following Rojas into the driveway and that the driveway was not within the protected curtilage of the home. Judge Strand, alternatively, concluded that even if the driveway qualified as part of the house's curtilage, the police did not violate Rojas's rights when they pulled into the driveway and initiated a Terry stop at that location did not violate Rojas's rights. In a second alternative determination, Judge Strand concluded that Rojas had failed to prove that he had a legitimate expectation of privacy in the driveway. Judge Strand further determined that, based on the additional information learned during the Terry stop, the police had probable cause to arrest Rojas for credit card fraud. Judge Strand further determined that asking Rojas his address did not violate Rojas's Fifth Amendment rights because asking such a routine processing type question did not constitute interrogation. Judge Strand also concluded that, based on the totality of circumstances, probable cause supported the state judge's issuance of the first search warrant for Rojas's apartment. Likewise, based on the totality of circumstances, Judge Strand found that probable cause supported the state judge's issuance of the second search warrant for Rojas's storage closet adjacent to his apartment. Judge Strand noted that the police's seizure of the keys for the storage closet fell within the scope of the first search warrant and was not improper. He also concluded that the police's insertion of a key into the storage closet door, in order to confirm that the keys were for that closet, was not a search. Judge Strand further determined that the police's seizure of three VISA gift guards pursuant to the second search warrant was lawful. Finally, Judge Strand concluded that, if the search warrant applications were not supported by probable cause, the Leon good-faith exception to the exclusionary rule applies because the law enforcement officer obtaining the search warrants acted in reasonable reliance on the state magistrate's determinations of probable cause for issuance of the warrants. Therefore, Judge Strand recommended that Rojas's motion to suppress be denied.
On October 8, 2014, Rojas filed objections to Judge Strand's Report and Recommendation. The prosecution filed a timely response to Rojas's objections on October 9, 2014. I, therefore, undertake the necessary review of Judge Strand's recommended disposition of Rojas's motion to suppress.
In his Report and Recommendation, Judge Strand made the following factual findings:
Report and Recommendation at 2-5. Upon review of the record, I adopt all of Judge Strand's factual findings.
I review the magistrate judge's report and recommendation pursuant to the statutory standards found in 28 U.S.C. § 636(b)(1):
28 U.S.C. § 636(b)(1); see FED. R. CIV. P. 72(b) (stating identical requirements); N.D. IA. L.R. 72, 72.1 (allowing the referral of dispositive matters to a magistrate judge but not articulating any standards to review the magistrate judge's report and recommendation). While examining these statutory standards, the United States Supreme Court explained:
Thomas v. Arn, 474 U.S. 140, 154 (1985). Thus, a district court may review de novo any issue in a magistrate judge's report and recommendation at any time. Id. If a party files an objection to the magistrate judge's report and recommendation, however, the district court must "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). In the absence of an objection, the district court is not required "to give any more consideration to the magistrate's report than the court considers appropriate." Thomas, 474 U.S. at 150.
De novo review, of course, is nondeferential and generally allows a reviewing court to make an "independent review" of the entire matter. Salve Regina College v. Russell, 499 U.S. 225, 238 (1991) (noting also that "[w]hen de novo review is compelled, no form of appellate deference is acceptable"); see Doe v. Chao, 540 U.S. 614, 620-19 (2004) (noting de novo review is "distinct from any form of deferential review"). The de novo review of a magistrate judge's report and recommendation, however, only means a district court "`give[s] fresh consideration to those issues to which specific objection has been made.'" United States v. Raddatz, 447 U.S. 667, 675 (1980) (quoting H.R. Rep. No. 94-1609, at 3, reprinted in 1976 U.S.C.C.A.N. 6162, 6163 (discussing how certain amendments affect 28 U.S.C. § 636(b))). Thus, while de novo review generally entails review of an entire matter, in the context of § 636 a district court's required de novo review is limited to "de novo determination[s]" of only "those portions" or "specified proposed findings" to which objections have been made. 28 U.S.C. § 636(b)(1); see Thomas, 474 U.S. at 154 ("Any party that desires plenary consideration by the Article III judge of any issue need only ask." (emphasis added)). Consequently, the Eighth Circuit Court of Appeals has indicated de novo review would only be required if objections were "specific enough to trigger de novo review." Branch v. Martin, 886 F.2d 1043, 1046 (8th Cir. 1989). Despite this "specificity" requirement to trigger de novo review, the Eighth Circuit Court of Appeals has "emphasized the necessity . . . of retention by the district court of substantial control over the ultimate disposition of matters referred to a magistrate." Belk v. Purkett, 15 F.3d 803, 815 (8th Cir. 1994). As a result, the Eighth Circuit Court of Appeals has been willing to "liberally construe[]" otherwise general pro se objections to require a de novo review of all "alleged errors," see Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995), and to conclude that general objections require "full de novo review" if the record is concise, Belk, 15 F.3d at 815 ("Therefore, even had petitioner's objections lacked specificity, a de novo review would still have been appropriate given such a concise record."). Even if the reviewing court must construe objections liberally to require de novo review, it is clear to me that there is a distinction between making an objection and making no objection at all. See Coop. Fin. Assoc., Inc. v. Garst, 917 F.Supp. 1356, 1373 (N.D. Iowa 1996) ("The court finds that the distinction between a flawed effort to bring objections to the district court's attention and no effort to make such objections is appropriate."). Therefore, I will strive to provide de novo review of all issues that might be addressed by any objection, whether general or specific, but will not feel compelled to give de novo review to matters to which no objection at all has been made.
In the absence of any objection, the Eighth Circuit Court of Appeals has indicated a district court should review a magistrate judge's report and recommendation under a clearly erroneous standard of review. See Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (noting when no objections are filed and the time for filing objections has expired, "[the district court judge] would only have to review the findings of the magistrate judge for clear error"); Taylor v. Farrier, 910 F.2d 518, 520 (8th Cir. 1990) (noting the advisory committee's note to Fed. R. Civ. P. 72(b) indicates "when no timely objection is filed the court need only satisfy itself that there is no clear error on the face of the record"); Branch, 886 F.2d at 1046 (contrasting de novo review with "clearly erroneous standard" of review, and recognizing de novo review was required because objections were filed). I am unaware of any case that has described the clearly erroneous standard of review in the context of a district court's review of a magistrate judge's report and recommendation to which no objection has been filed. In other contexts, however, the Supreme Court has stated the "foremost" principle under this standard of review "is that `[a] finding is "clearly erroneous" when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). Thus, the clearly erroneous standard of review is deferential, see Dixon v. Crete Med. Clinic, P.C., 498 F.3D 837, 847 (8th Cir. 2007) (noting a finding is not clearly erroneous even if another view is supported by the evidence), but a district court may still reject the magistrate judge's report and recommendation when the district court is "left with a definite and firm conviction that a mistake has been committed," U.S. Gypsum Co., 333 U.S. at 395.
Even though some "lesser review" than de novo is not "positively require[d]" by statute, Thomas, 474 U.S. at 150, Eighth Circuit precedent leads me to believe that a clearly erroneous standard of review should generally be used as the baseline standard to review all findings in a magistrate judge's report and recommendation that are not objected to or when the parties fail to file any timely objections, see Grinder, 73 F.3d at 795; Taylor, 910 F.2d at 520; Branch, 886 F.2d at 1046; see also FED. R. CIV. P. 72(b) advisory committee's note ("When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation."). In the context of the review of a magistrate judge's report and recommendation, I believe one further caveat is necessary: a district court always remains free to render its own decision under de novo review, regardless of whether it feels a mistake has been committed. See Thomas, 474 U.S. at 153-54. Thus, while a clearly erroneous standard of review is deferential and the minimum standard appropriate in this context, it is not mandatory, and I may choose to apply a less deferential standard.
As noted above, Rojas has filed objections to Judge Strand's Report and Recommendation. I, therefore, undertake the necessary review of Judge Strand's recommended disposition of Rojas's motion to suppress.
Rojas initially objects to Judge Strand's conclusion that the police did not illegally enter the curtilage of the house at 1708 Rose Lane when they entered the rear driveway. This objection is rendered moot by Judge Strand's finding that Rojas failed to show that he, personally, had any legitimate expectation of privacy in the house at 1708 Rose Lane. Rojas has not objected to this finding nor could he in good faith. Fourth Amendment rights are personal rights that may not be vicariously asserted. Rakas v. Illinois, 439 U.S. 128, 133-34 (1978); see United States v. Douglas, 744 F.3d 1065, 1071 (8th Cir. 2014); United States v. Skoda, 705 F.3d 834, 837 (8th Cir. 2013); United States v. Ruiz-Zarate, 678 F.3d 683, 689 (8th Cir. 2012); see also United States v. Salvucci, 448 U.S. 83, 85 (1980) (explaining "that defendants charged with crimes of possession may only claim the benefits of the exclusionary rule if their own Fourth Amendment rights have in fact been violated"). That is, "[a] person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed." Rakas, 439 U.S. at 134. Consequently, Rojas must show that "`(1) he has a reasonable expectation of privacy in the areas searched or the items seized, and (2) society is prepared to accept the expectation of privacy as objectively reasonable.'" Skoda, 705 F.3d at 837 (quoting Ruiz-Zarate, 678 F.3d at 689). Here, Rojas presented no evidence that he was the owner or occupant of, or even an overnight guest at, the Rose Lane residence. Thus, he has not established that he had a reasonable expectation of privacy in the Rose Lane residence. See United States v. Davis, 103 F.3d 660, 671 (8th Cir. 1996) (holding that defendant did not have a legitimate expectation of privacy in the apartment searched when he neither lived at the address nor "was a guest in the home at the time of the search"); see also United States v. Brown, 408 F.3d 1049, 1051 (8th Cir. 2005) ("There was no evidence Brown had a reasonable expectation of privacy in Lewis's residence, because he was not present during the search, did not live at the residence, and did not have a key to the residence."). Accordingly, Rojas lacks a Fourth Amendment right to contest the validity of the police's entry onto the Rose Lane residence's driveway and this objection is overruled.
Assuming, arguendo, that Rojas had a legitimate expectation of privacy in the Rose Lane residence, see Minnesota v. Olson, 495 U.S. 91, 97-98 (1990) (holding that overnight guest could have expectation of privacy in host's home), Rojas's objection fails on the merits. The Eighth Circuit Court of Appeals has repeatedly held that individuals have no reasonable expectation of privacy in their driveways when there are no barriers to access and the driveways are open to public view. See, e.g., United States v. Cicneros-Gutierrez, 598 F.3d 997, 1005 (8th Cir. 2010) ("[N]o Fourth Amendment search occurs when officers `restrict their movements to those areas generally made accessible to visitors—such as driveways, walkways, or similar passageways.'") (quoting United States v. Reed, 733 F.2d 492, 501 (8th Cir. 1984)); United States v. Lakoskey, 462 F.3d 965, 973 (8th Cir. 2006) ("[W]e will not extend [the defendant's] expectation of privacy to his driveway, walkway or front door area."); United States v. Khabeer, 410 F.3d 477, 482 ((8th Cir. 2005) (holding that no Fourth Amendment violation occurred where police observations were made from residence's driveway); United States v. Ventling, 678 F.2d 63, 66 (8th Cir. 1982) ("[A] driveway and portion of the yard immediately adjacent to the front door of the residence can hardly be considered out of public view."). So, whether or not the driveway was curtilage, the police did not violate Rojas's Fourth Amendment by viewing his pickup truck while standing in the driveway that was open to public view. Accordingly, this objection is also overruled on the merits.
Rojas also objects to Judge Strand's determination that evidence gathered during the execution of the second search warrant need not be suppressed. Rojas asserts that the second search warrant was tainted by the police's earlier warrantless search of the storage closet.
The Fourth Amendment to the United States Constitution guarantees the right to be free from "unreasonable searches and seizures." U.S. CONST. amend. IV. Searches and seizures conducted without warrants issued by a judge are per se unreasonable unless a specifically established exception applies. See Coolidge v. New Hampshire, 403 U.S. 443, 474-75 (1971); Katz v. United States, 389 U.S. 347, 357 (1967); United States v. Goodrich, 739 F.3d 1091, 1096 (8th Cir. 2014); United States v. Goodale, 738 F.3d 917, 921 (8th Cir. 2013). Searches conducted without warrants have been held unlawful "notwithstanding facts unquestionably showing probable cause," Agnello v. United States, 269 U.S. 20, 33 (1925), because the Constitution requires "`that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police.'" South Dakota v. Opperman, 428 U.S. 364, 381 (1976) (quoting Wong Sun v. United States, 371 U.S. 471, 481-82 (1963)). The burden is on the government to demonstrate that an exception to the warrant requirement applies, and that burden is a heavy one. Welsh v. Wisconsin, 466 U.S. 740, 750 (1984).
Generally, evidence obtained in violation of the Fourth Amendment is inadmissible at trial. See Mapp v. Ohio, 367 U.S. 643, 648 (1961). The Supreme Court has explained that:
Murray v. United States, 487 U.S. 533, 536-37 (1988) (internal quotes and citations omitted). Such derivative evidence acquired as a consequence of an illegal search or seizure is inadmissible under the "fruit of the poisonous tree" doctrine. See Wong Sun, 371 U.S. at 485-86.
I conclude that the police engaged in a warrantless search of the storage closet when they unlocked it and momentarily glimpsed inside it.
Evid. Hearing Tr. at 68. Thus, after Detective Flikeid reviewed the warrant and noted that it did not contain language that he sometimes had in warrants that would have authorized that search, he closed the storage closet door and instructed Officer Younie to stand guard and secure the closet while Detective Flikeid sought a search warrant for the storage closet.
The search warrant for the storage closet was not based on any information obtained solely through the initial warrantless search. Instead, the search warrant was based on information obtained by the police during their investigation, including evidence found during the search of Rojas's apartment.
In addition to his specific objections to Judge Strand's Report and Recommendation discussed above, Rojas also objects "generally to the entire report and recommendation." Rojas's Br. at 3. General objections are insufficient to preserve any issues for review; "[a] general objection to the entirety of the magistrate's report has the same effects as would a failure to object." Howard v. Secretary of Health and Human Services, 932 F.2d 505, 509 (6th Cir. 1991); see United States v. Walters, 638 F.2d 947 (6th Cir. 1981); see also Reed v. Curry Concrete Constr. Inc., Civ. No. 10-4329, 2011 WL 2015217, at *2 (D. Minn. May 23, 2011) ("[W]hen a party is simply unhappy with the results and does not cite any reason why the Magistrate Judge's determination was incorrect, nor any basis for this Court to reach a different outcome, the Court may review the Magistrate Judge's recommendations as if no objections were filed." (alterations and internal quotation marks omitted)). Therefore, I deny Rojas's objection on the ground that he has failed to state his objection with the requisite particularity. Nonetheless, I note that I have made an independent de novo review of the record and Judge Strand's Report and Recommendation. Based on my review, I find that Judge Strand's findings and recommendations are correct and I accept them.
Therefore, for the reasons discussed above, I, upon a de novo review of the record, accept Judge Strand's Report and Recommendation and deny defendant Rojas's motion to suppress.
Government Ex. 3 at 9.
