MARK W. BENNETT, District Judge.
This case is before me on United States Magistrate Judge C.J. Williams's Report and Recommendation concerning defendant Jeremy D. Terrell's Motion to Suppress (docket no. 44). In his Report and Recommendation, Judge Williams recommends denying Terrell's Motion to Suppress. Terrell has filed timely objections to Judge Williams's Report and Recommendation. I, therefore, undertake the necessary review of Judge Williams's Report and Recommendation.
On December 15, 2015, an Indictment was returned against Terrell, charging him with conspiracy to distribute 500 grams or more of a methamphetamine mixture which contained 50 grams or more of pure methamphetamine, having previously been convicted of a felony drug offense in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and 851 (Count 1), possessing with intent to distribute 500 grams or more of a methamphetamine mixture which contained 50 grams or more of pure methamphetamine, having previously been convicted of a felony drug offense, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 851 (Count 2), and possessing with intent to distribute cocaine, having previously been convicted of a felony drug offense, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 851 (Count 3).
Terrell subsequently filed a Motion to Suppress in which he seeks to suppress "any and all . . . evidence, tangible and testimonial, which was derived, directly or indirectly," from wiretaps. Defendant's Br. at 35. Terrell contends that the evidence must be suppressed for the following reasons: (1) the police's failure to comply with the Attorney General's pre-authorization requirements; (2) the police's lack of probable cause to intercept Terrell's telephone calls on June 2, 2015; (3) the police's failure to demonstrate that the interception of Terrell's telephone calls was necessary; (4) the police's failing to comply with the minimization requirements in the wiretap orders; and (5) the prosecution's failure to comply with the post-intercept notification requirements which prejudiced Terrell. Terrell also argues that the Leon Good Faith Doctrine was inapplicable and, as a result, all evidence obtained as a result of the wiretaps must be suppressed.
The prosecution filed a timely resistance to Terrell's motion. Terrell's motion was referred to Judge Williams, pursuant to 28 U.S.C. § 636(b). Judge Williams conducted an evidentiary hearing and then filed a Report and Recommendation in which he recommends that Terrell's motion be denied. In his Report and Recommendation, Judge Williams initially concluded that the Douglas County Attorney was not required to obtain pre-authorization from the Nebraska Attorney General before applying for the wiretap orders in this case. Judge Williams further determined that the wiretap application submitted to the Nebraska Attorney General was not required to be signed and sworn. Accordingly, Judge Williams found that the Douglas County Attorney complied with the statutory requirement for submitting the application and affidavit to the Nebraska Attorney General for a nonbinding recommendation. Along those same lines, Judge Williams concluded that the Douglas County Attorney did not have to obtain pre-authorization from the Nebraska Attorney General for each wiretap extension. Thus, Judge Williams found that the Douglas County Attorney fully complied with the statutory requirements for obtaining the wiretaps and extensions.
Judge Williams then turned to the issue of probable cause to intercept Terrell's telephone calls at the time of the first wiretap. Judge Williams concluded that, because the first wiretap was conducted on the telephones of other members of the gang, not on Terrell's telephones, it was only necessary that the affidavit provide probable cause to believe those members of the gang were using their telephones to communicate about criminal activity and it was not necessary that the affidavit additionally establish probable cause for each of the targets, including Terrell. Subsequently, when, agents sought a wiretap on Terrell's telephones, the supporting affidavit established probable cause to believe Terrell would use his telephones to discuss criminal activity. Judge Williams next took up Terrell's claim that evidence obtained from the wiretaps must be suppressed because the wiretaps were unnecessary. Judge Williams found that the supporting affidavits provided an adequate factual basis to inform the state court judge why other investigative techniques were not sufficient or likely to succeed in achieving the goals of the investigation. Next, Judge Williams considered Terrell's claim that law enforcement officers did not comply with the minimization requirements contained in the wiretap orders. Judge Williams found that the prosecution had met its burden of showing that the law enforcement agents reasonably minimized the calls as required by the court's orders. Judge Williams next rejected Terrell's argument that the prosecution failed to timely notify Terrell that his communications were being intercepted. Judge Williams found that the prosecution provided Terrell with sufficient, actual notice of the wiretap within the required 90 day period. Moreover, Judge Williams further determined that, even if the prosecution had failed to timely notify Terrell, such failure was a technical violation which does not require suppression, because Terrell had failed to show that the prosecution acted in bad faith and that he was prejudiced by the delay in notification. Finally, Judge Williams found that the Leon Good Faith Doctrine applied to both of Terrell's probable cause and necessity arguments because the showing of probable cause and necessity were not so facially deficient that law enforcement officers unreasonably relied on the state court judge's conclusions. Therefore, Judge Williams recommended denying Terrell's Motion to Suppress.
Terrell has filed objections to Judge Williams's Report and Recommendation. The prosecution filed a timely response to Terrell's objections. I, therefore, undertake the necessary review of Judge Williams's recommended disposition of Terrell's Motion to Suppress.
In his Report and Recommendation, Judge Williams made the following factual findings:
Report and Recommendation at 5-13 (footnotes omitted). Upon review of the record, I adopt all of Judge Williams'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, Terrell has filed objections to Judge Williams's Report and Recommendation. I, therefore, undertake the necessary review of Judge Williams's recommended disposition of Terrell's Motion to Suppress.
Terrell objects to Judge Strand's determination that wiretap applications and extensions need not be pre-authorized by the Nebraska Attorney General. He argues that all of the applications for wiretaps and extensions in this case are invalid because the Douglas County Attorney failed to obtain pre-authorizations from the Nebraska Attorney General. The federal wiretap statute requires that a federal prosecutor have authorization from the United States Attorney General, or the United States Attorney General's assigned designee, before applying to a federal court for a wiretap. See 18 U.S.C. 2516(1); see also United States v. Giordano, 415 U.S. 505, 508 (1974) (noting that § 2516(1)1 confers "power on the `Attorney General, or any Assistant Attorney General specially designated by the Attorney General' to `authorize an application to a Federal judge . . . for . . . an order authorizing or approving the interception of wire or oral communications' by federal investigative agencies. . ."). However, as Judge Williams recognized, the federal wiretap statute also permits states to authorize the interception of wire communications. See 18 U.S.C. § 2516(2). Section 2516(2) states, in pertinent part, that:
18 U.S.C. § 2516(2). Accordingly, a state may enact a law permitting a county attorney to apply for a wiretap without any requirement that the attorney general of the state authorize the application in advance. Nebraska is one of these jurisdictions where both the "principal prosecuting attorney" of the state, the Nebraska Attorney General, and a "political subdivision thereof," the county attorneys, have authority to apply for a state wiretap. See NEB. REV. STAT. § 86-291. Section 86-291 states, in pertinent part, that:
NEB. REV. STAT. § 86-291. Thus, in Nebraska, either the Nebraska Attorney General or any county attorney may make application for a wiretap order. Section 86-291 does not require both a county attorney and the Nebraska Attorney General to authorize the application for a state wiretap. However, the State of Nebraska has implemented additional review of wiretaps applications which are authorized by a county attorney. See NEB. REV. STAT. § 86-291. Section 86-291 states, in pertinent part that:
NEB. REV. STAT. § 86-291. Accordingly, § 86-291 does not require the Nebraska Attorney General's authorization, but only that the Nebraska Attorney General make a recommendation to the district court concerning whether the wiretap authorization order should be granted. Section 86-291 is devoid of any language requiring the county attorney to obtain pre-authorization from the Nebraska Attorney General.
The case cited by Terrell, United States v. Giordano, 416 U.S. 505 (1974), does not concern a wiretap authorized under Nebraska law and is, therefore, not controlling precedent on the issue before me. Moreover, Terrell's reliance on State v. Hinton, 415 N.W.2d 138 (Neb 1987) is misplaced. As Judge Williams cogently noted in his Report and Recommendation:
Report and Recommendation at 19. Therefore, this objection is overruled.
Terrell next objects to the Report and Recommendation on the ground that the applications/affidavits submitted to the Nebraska Attorney General had to be "signed and sworn." There is no dispute Assistant Douglas County Attorney Lux submitted unsigned/unsworn copies of the Douglas County Attorney's applications/affidavits for wiretaps in this case. However, I agree with Judge Williams that there is no requirement that signed/sworn applications/affidavits for wiretaps be submitted to the Nebraska Attorney General. Again, the plain language of § 86-291 is entirely silent about any requirement that wiretap applications/affidavits sent to the Nebraska Attorney General be signed or sworn under oath. Such a requirement exists under federal law, but then only when the application/affidavit is presented to a judge. See 18 U.S.C. § 2518(1). Section 2518(1) states, in relevant part that:
18 U.S.C. § 2518(1). Nebraska law similarly requires that an application made to a judge be in writing upon oath or affirmation. See NEB. REV. STAT. § 86-293(1). Section 86-293(1), however, does not require that a wiretap application be sworn under oath before it is presented to the judge and does not require that a wiretap application be sworn under oath when it is presented to the Nebraska Attorney General. Therefore, this objection is also overruled.
Terrell also objects to Judge Williams's determination that the June Affidavit was sufficient on its face to establish probable cause to justify a wiretap of Terrell's telephone. Nebraska Revised Statutes § 86-293(3) states that:
NEB. REV. STAT. § 86-293(3).
The seminal case of Illinois v. Gates, 462 U.S. 213 (1983), provides the standard an issuing court must follow in determining whether probable cause supports an application for a wiretap and, consequently, the duty of the reviewing court when considering the propriety of that determination:
Id. 462 U.S. at 238.
Thus, the question presented on review of an issuing judicial officer's determination is not whether the reviewing court would have granted the wiretap based on the affidavit as presented, but whether the court which did issue the warrant had a "`substantial basis for . . . conclud[ing]' that probable cause existed." Id. at 238-39 (citation omitted). Accordingly, a reviewing court does not conduct a de novo review of the issuing judge's determination, but must instead afford it great deference. Id. at 236; see United States v. McArthur, 573 F.3d 608, 613 (8th Cir. 2009); United States v. Maxim, 55 F.3d 394, 397 (8th Cir. 1995).
As the Court explained in Gates:
Gates, 462 U.S. at 236; see also United States v. Gladney, 48 F.3d 309, 312 (8th Cir. 1995). As the Eighth Circuit Court of Appeals has observed:
Gladney, 48 F.3d at 312 (quoting United States v. Bieri, 21 F.3d 811, 815 (8th Cir. 1994)). Equally on point is the observation of Justice (then Judge) Kennedy:
United States v. Peacock, 761 F.2d 1313, 1315 (9th Cir. 1985) (citations omitted). Where, as here, the issuing judge relied solely on the affidavit presented to him, "`only that information which is found within the four corners of the affidavit may be considered in determining the existence of probable cause.'" Gladney, 48 F.3d at 312 (quoting United States v. Leichtling, 684 F.2d 553, 555 (8th Cir. 1982).
The June Affidavit, read in its entirety, contained sufficient information to provide a basis for the state court judge's finding of probable cause for a wiretap of co-conspirators Henderson and Goodwin's telephones. Law enforcement officers had information from multiple sources that Terrell and other members of a gang were involved in bank robberies and narcotics trafficking. The reliability of these sources was corroborated. Law enforcement's focus for the wiretap investigation was on Henderson and Goodwin. As Judge Williams correctly observed, the Nebraska and federal wiretap statutes "[do] not prohibit the government from listing someone as a target subject even if probable cause is lacking as to that person." United States v. Dunn, 723 F.3d 919,927 (8th Cir. 2013). Therefore, at the time the first application was granted, it was not necessary to establish probable cause for Terrell or any other individuals listed as targets, only Henderson and Goodwin. However, when later law enforcement sought wiretaps for Terrell's telephones, these applications contained numerous incriminating statements Terrell made in intercepted telephone calls during the initial wiretaps for Henderson and Goodwin's telephones.
Terrell also objects to Judge Williams's finding that the information supporting the first wiretap was not stale. The mere lapse of time between information and its use in an affidavit is not controlling, a court must also consider the nature of the criminal activity involved and whether such activity is continuous or ongoing in nature. See United States v. Macklin, 902 1320, 1326 (8th Cir. 1990) (instructing that the passage of time between events and issuance of warrant is less significant where the criminal activity being investigated is a continuing criminal enterprise). As Judge Williams recognized, because the criminal activities here were continuous and ongoing, any lapse of time was less significant. See Macklin, 902 F.2d 1320, 1326 (8th Cir. 1990); see also United States v. Jeanetta, 533 F.3d 651, 655 (8th Cir. 2008) ("`[W]here continuing criminal activity is suspected, the passage of time is less significant.'") (quoting United States v. Formaro, 152 F.3d 768, 771 (8th Cir. 1998)); United States v. Jones, 801 F.2d 304, 314 (8th Cir. 1986) ("The passage of time between the transactions on which a warrant is based and the ensuing search is less significant when the facts recited indicate activity of a continuous nature."); United States v. Lueth, 807 F.2d 719, 727 (8th Cir. 1986) (continuous and ongoing criminal activity relevant to probable cause determination); United States v. Ellison, 793 F.2d 942, 947 (8th Cir. 1986) (same).
The wiretap applications, here, reflect an investigation of an ongoing drug trafficking operation. Because ongoing criminal conduct was suspected here, the passage of time is less significant. See Jeanetta, 533 F.3d at 655; Formaro, 152 F.3d at 771; Jones, 801 F.2d at 314. Judge Williams noted that the initial application contained background information on Terrell that was a year old, but also pointed out more recent information from March 2015 regarding Terrell's reported involvement in drug trafficking. Because the investigation was of gang members' involvement in bank robberies and drug trafficking for more than a year, and considering the information in the June Affidavit as a whole, I do not find that the information was so stale as to negate probable cause. See United States v. Tallman, 952 F.2d 164, 166 (8th Cir. 1991) (finding wiretap affidavit supported probable cause finding where information concerning drug trafficking took place four months before wiretap application). Therefore, this objection is also overruled.
Terrell also objects to Judge Williams's finding that wiretap applications for Terrell's telephones satisfied the "necessity" requirements for the granting of a wiretap. Nebraska Revised Statutes § 86-293(3) provides, in relevant part, that:
NEB. REV. STAT. § 86-293(3). "Whether the statutory requirement is met is to be determined by the issuing judge in a commonsense manner, and the determination is a finding of fact, which can be reversed only if clearly erroneous." United States v. Maxwell, 25 F.3d 1389, 1394 (8th Cir. 1994) (quoting United States v. Macklin, 902 F.2d 1320, 1327 (8th Cir. 1990)). The necessity requirement does not require the prosecution to exhaust every available investigative technique before a wiretap may be authorized. Macklin, 902 F.2d at 1326 ("While the statute does require that normal investigative procedures be used first, it does not require that law enforcement exhaust all possible techniques before applying for a wiretap."); see United States v. Gruber, 994 F.Supp. 1026, 1044 (N.D. Iowa 1998); see also United States v. Losing, 560 F.2d 906, 910 (8th Cir. 1977).
Here, the original wiretap application, as well as those that followed, detailed the prior investigative measures law enforcement employed to identify gang members and the gang's criminal activity, and disclosed the reasons why these measures proved inadequate in this investigation. Judge Williams noted these measures in his Report and Recommendation and found that Terrell had failed to establish that other investigative techniques had a likelihood of success. Terrell's bare bones objection does not disclose what he believes is incorrect about Judge Williams's analysis. Finding no error on this issue, Terrell's objection is overruled.
Terrell similarly makes a bare bones objection to Judge Williams's finding that the post-intercept notice requirements were satisfied. The Nebraska wiretap statute requires, in pertinent part, that within 90 days after the termination of a wiretap, the persons named in the application be provided with notice of the wiretap order and whether telephone calls were intercepted. See NEB. REV. STAT. § 86-293(9)(a). Judge Williams found that the Douglas County Attorney did not provide formal notices for the second wiretap within the 90 days. However, Judge Williams also found that Terrell and his counsel received actual notice of the wiretap of his phone conversations on October 26, 2015, well within the 90 day window, when during a debriefing, law enforcement agents informed Terrell and his counsel about the interception of Terrell's conversations and showed him several interception line sheets. As Judge Williams noted, the Eighth Circuit Court of Appeals has specifically addressed this issue and held that a defendant received adequate notice when the prosecution informed him of the interception, even though not with a formal notice made in the formal manner identified by statute. See United States v. Dunn, 723 F.3d. 919, 927 (8th Cir. 2013). Terrell's bare bones objection fails to identify any factual error in Judge Williams's analysis or any binding legal authority contrary to Dunn. Accordingly, this objection, too, is overruled.
Finally, Terrell makes another bare bones objection to Judge Williams's finding that the "good faith doctrine" established in United States v. Leon, 468 U.S. 897 (1984), applies to the wiretap orders here. The Eighth Circuit Court of Appeals has held that the Leon "good faith doctrine" applies to wiretap orders when law enforcement officers rely in good faith on a deficient wiretap order. See United States v. Moore, 41 F.3d 370, 376-77 (8th Cir. 1994). However, the doctrine does not apply if the wiretap order is "so facially deficient . . . that the executing officers cannot reasonably presume it to be valid."
Therefore, for the reasons discussed above, I, upon a de novo review of the record, accept Judge Williams's Report and Recommendation and deny defendant Terrell's Motion to Suppress.
