United States District Court, N.D. Iowa, Central Division
LINDA R. READE, Chief District Judge.
The matter before the court is Defendant Billy D. Thorne's Objections ("Objections") (docket no. 47) to United States Magistrate Judge Jon S. Scoles's Report and Recommendation (docket no. 36), which recommends that the court deny Defendant's Motion to Suppress ("Motion") (docket no. 24).
II. RELEVANT PROCEDURAL HISTORY
On December 3, 2013, a grand jury returned an Indictment (docket no. 2) that charged Defendant with knowingly possessing, in and affecting commerce, a firearm after previously having been convicted of crimes punishable by imprisonment for a term exceeding one year in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The Indictment also contained a forfeiture allegation. On February 18, 2014, Defendant filed the Motion. On February 25, 2014, the government filed a Resistance to the Motion (docket no. 30). On February 27, 2014, Judge Scoles held a hearing on the Motion. See February 27, 2014 Minute Entry (docket no. 34). Defendant appeared in court with his attorney, Terence McAtee. Assistant United States Attorney Dan Tvedt represented the government. On March 3, 2014, Judge Scoles issued his Report and Recommendation. On March 17, 2014, Defendant filed his Objections. The Objections and Report and Recommendation are fully submitted and ready for decision.
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.
Defendant objects to Judge Scoles's finding that Defendant voluntarily consented to a search of his phone. Specifically, Defendant contends that Judge Scoles failed to consider as aggravating that "it is possible that an attorney had already been appointed to represent [Defendant]... by the time Detective [Daniel] Vallejo [of the Ankeny Police Department] approached [Defendant] to obtain his consent to search his phone, " and that "Detective Vallejo did not give [Defendant] his Miranda warnings." Objections at 2-3. Defendant also argues that Judge Scoles improperly found that Defendant was not "impaired or unable to appreciate the nature and significance of [Defendant's] consent to search the phone." Id. at 3 (quoting Report and Recommendation at 7). After a de novo review of the record, the court overrules Defendant's Objections and adopts Judge Scoles's factual and legal findings in their entirety.
A court determines the voluntariness of a person's consent by assessing "the totality of all the surrounding circumstances-both the characteristics of the accused and the details of the interrogation." Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973); see also United States v. Smith, 260 F.3d 922, 924 (8th Cir. 2001) (discussing the individual characteristics and environmental factors relevant to a court's determination of the voluntariness of a person's consent); United States v. Chaidez, 906 F.2d 377, 381 (8th Cir. 1990) (same). "The government bears the burden to prove by a preponderance of the evidence that consent to search was freely given...." Smith, 260 F.3d at 924.
The voluntariness of a defendant's consent is examined based on the totality of the circumstances, and courts look to the following, non-exhaustive list of relevant factors:
(1) the individual's age and mental ability; (2) whether the individual was intoxicated or under the influence of drugs; (3) whether the individual was informed of [his] Miranda rights; and (4) whether the individual was aware, through prior experience, of the protections that the legal system provides for suspected criminals. It is also important to consider the environment in which an individual's consent is obtained, including (1) the length of the detention; (2) whether the police used threats, physical intimidation, or punishment to extract consent; (3) whether the police made promises or misrepresentations; (4) whether the individual was in custody or under arrest when consent was given; (5) whether the consent was given in public or in a secluded location; and (6) whether the individual stood by silently or objected to the search.
United States v. Quintero, 648 F.3d 660, 667 (8th Cir. 2011) (quoting United States v. Golinveaux, 611 F.3d 956, 959 (8th Cir. 2010)). Thus, relevant factors include the personal characteristics of Defendant and the environment surrounding Defendant's consent. United States v. Cisneros-Gutierrez, 598 F.3d 997, 1003 (8th Cir. 2010) ("In determining voluntariness, the personal characteristics of the individual who supposedly consented and the environment in which the consent allegedly occurred are relevant.").
The court first notes that whether Defendant was appointed an attorney before consenting to the search is wholly irrelevant to the question of whether Defendant voluntarily consented to the search of his phone. The court does not disagree with Defendant that it "is possible that an attorney had already been appointed to represent [Defendant]" before Detective Vallejo obtained his consent. Objections at 2. Defendant cites to no authority that suggests that a person's consent is rendered involuntary-or indeed that it is even a factor a court considers in determining the voluntariness of a person's consent-without the person's attorney being present, and the court is aware of no such authority. Contrary to Defendant's contention, even if Defendant had been appointed an attorney prior to ...