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United States of America v. Gregory Latrell

December 31, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
GREGORY LATRELL GIVENS, DEFENDANT.



ORDER

I. INTRODUCTION

The matter before the court is Defendant Gregory Latrell Givens's Objections (docket no. 24) to United States Magistrate Judge Jon S. Scoles's Report and Recommendation (docket no. 23), which recommends that the court deny Defendant's "Motion to Suppress" ("Motion") (docket no. 14).

II. RELEVANT PROCEDURAL HISTORY

On October 3, 2012, a grand jury returned a two-count Indictment (docket no. 2) against Defendant. Count 1 of the Indictment charges Defendant with knowingly possessing ammunition after having been previously convicted of a crime punishable by imprisonment for a term exceeding one year. Such offense is a violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Count 2 of the Indictment charges Defendant with possessing with the intent to distribute crack cocaine after having been previously convicted of one or more felony drug offenses. Such offense is a violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 851. The Indictment also contains a forfeiture allegation.

On November 15, 2012, Defendant filed the Motion. On November 26, 2012, the government filed a Resistance (docket no. 18). On November 27, 2012, the government filed a Supplement (docket no. 19) to the Resistance. On November 28, 2012, Judge Scoles held a hearing on the Motion. See Minute Entry (docket no. 20). Defendant appeared in court with his attorney, Cory Goldensoph. Assistant United States Attorney Daniel C. Tvedt represented the government. On November 30, 2012, Judge Scoles issued the Report and Recommendation, which recommends that the court deny the Motion. On December 12, 2012, Defendant filed his Objections. The matter is fully submitted and ready for decision.*fn1

III. STANDARD OF REVIEW

When a party files a timely objection to a magistrate judge's report and recommendation, a "judge of the court shall 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); see also Fed. R. Crim. P. 59(b)(3) ("The district judge must consider de novo any objection to the magistrate judge's recommendation."); United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003) (noting that a district judge must "undertake[] a de novo review of the disputed portions of a magistrate judge's report and recommendations"). "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); see also Fed. R. Crim. P. 59(b)(3) ("The district judge may accept, reject, or modify the recommendation, receive further evidence, or resubmit the matter to the magistrate judge with instructions."). It is reversible error for a district court to fail to engage in a de novo review of a magistrate judge's report when such review is required. Lothridge, 324 F.3d at 600. Accordingly, the court reviews the disputed portions of the Report and Recommendation de novo.

IV. ANALYSIS

Defendant objects to two of Judge Scoles's conclusions of law. First, Defendant objects to Judge Scoles's finding that there was no Fourth Amendment violation when Officer Nathan Baughan initiated the October 7, 2010 traffic stop of Defendant's vehicle. Second, Defendant objects to Judge Scoles's finding that law enforcement did not conduct a warrantless search in violation of the Fourth Amendment when law enforcement deployed a drug dog to sniff Defendant's apartment door. After a de novo review of the record, the court overrules Defendant's Objections and adopts Judge Scoles's findings in their entirety.

A. Traffic Stop

First, Defendant argues that Officer Baughan did not have probable cause to believe or a reasonable suspicion that Defendant's paper registration card was not valid and, consequently, Officer Baughan violated Defendant's Fourth Amendment rights by initiating a traffic stop. Defendant contends that the cases Judge Scoles relies on in the Report and Recommendation-United States v. Sanchez, 572 F.3d 475 (8th Cir. 2009), and United States v. Mendoza, 691 F.3d 954 (8th Cir. 2012)-are distinguishable from the facts of this case.Rather, Defendant argues that United States v. Wilson, 205 F.3d 720 (4th Cir. 2000), is "more closely aligned" with the facts of this case. Objections at 1. Moreover, Defendant contends that, contrary to Judge Scoles's suggestion, Defendant could not have made his paper registration card more visible.

The Eighth Circuit Court of Appeals recently summarized the law applicable to traffic stops:

The Fourth Amendment prohibits "unreasonable searches and seizures." "A traffic stop constitutes a seizure of

[a] vehicle's occupants, including any passengers." United States v. Sanchez, 572 F.3d 475, 478 (8th Cir. 2009), citing Brendlin v. California, 551 U.S. 249, 255--57, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007). A traffic stop "must be supported by reasonable suspicion or probable cause." United States v. Houston, 548 F.3d 1151, 1153 (8th Cir. 2008). "A law enforcement officer has reasonable suspicion when the officer is aware of 'particularized, objective facts which, taken together with rational inferences from those facts, reasonably warrant suspicion that a crime is being committed.'" Id. "Any traffic violation, however minor, provides probable cause for a traffic stop." United States v. Wright, 512 F.3d 466, 471 (8th Cir. 2008) (citation and internal quotes omitted). "The determination of whether probable cause," or reasonable suspicion, "existed is not to be made with the vision of hindsight, but instead by looking to what the officer reasonably knew at the time." See United States v. Sanders, 196 F.3d 910, 913 (8th ...


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