Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Burston

United States District Court, N.D. Iowa, Cedar Rapids Division

September 2, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
DEMOCRUS PERNELL BURSTON, Defendant.

ORDER

LINDA R. READE, Chief District Judge.

I. INTRODUCTION

The matters before the court are Defendant Democrus Pernell Burston's Objections ("Defendant's Objections") (docket no. 30) and the government's Objections ("Government's Objections") (docket no. 29) (collectively, "Objections") to United States Chief Magistrate Judge Jon S. Scoles's Report and Recommendation (docket no. 28) and Defendant's "Motion to Suppress" ("Motion") (docket no. 20).

II. RELEVANT PROCEDURAL BACKGROUND

On June 5, 2012, a grand jury returned an Indictment (docket no. 2) charging Defendant with knowingly possessing firearms and ammunition as a felon and as an unlawful user of marijuana in violation of 18 U.S.C. §§ 922(g)(1) and 922(g)(3). On June 2, 2014, Defendant filed the Motion. On June 9, 2014, the government filed a Resistance (docket no. 22). On June 13, 2014, Judge Scoles held a hearing on the Motion. See June 13, 2014 Minute Entry (docket no. 23). Defendant appeared in court with his attorney, Raphael Scheetz. Assistant United States Attorney Anthony Morfitt represented the government. On June 23, 2014, the government filed a supplemental brief ("Government's Supplemental Brief") (docket no. 25). On June 23, 2014, Defendant filed a supplemental brief ("Defendant's Supplemental Brief") (docket no. 26), and on June 24, 2014, Defendant filed a second supplemental brief ("Defendant's Second Supplemental Brief") (docket no. 27). On July 10, 2014, Judge Scoles issued his Report and Recommendation, which recommends that the court deny the Motion. On July 23, 2014, the government filed the Government's Objections. On July 24, 2014, Defendant filed Defendant's Objections. The Report and Recommendation and the Objections 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.

IV. RELEVANT FACTUAL BACKGROUND [1]

The evidence pertinent to the Motion arises from a drug dog sniff that occurred outside of an apartment building in Cedar Rapids, Iowa. On March 13, 2012, Officer John O'Brien of the Cedar Rapids Police Department received a tip that a potential drug user resided at apartment number 4 at 2050 Northtowne Court N.E. in Cedar Rapids, Iowa. Acting on this information, Officer Al Fear of the K-9 division brought his dog, Marco, to the apartment building, where Marco alerted outside apartment 4. On the basis of Marco's alert and Defendant's criminal record, Officer Fear applied for a search warrant and a state judicial magistrate issued a search warrant. On March 19, 2012, officers of the Cedar Rapids Police Department executed the search warrant and found four rifles, ammunition and marijuana residue.

Officers took Defendant into custody and read him Miranda warnings. Defendant indicated he was willing to talk but declined to sign a form indicating his consent to talk. The officers interviewed Defendant, and Defendant made incriminating statements.

V. ANALYSIS

The government objects "only to the [m]agistrate [j]udge's recommendation with respect to the legal finding that the dog sniff was an unlawful warrantless search.'" Government's Objections at 1. Defendant objects to Judge Scoles's "finding that the Leon [2] good faith exception applies to the instant case." Defendant's Objections at 3 (footnote added).

A. Lawfulness of Dog Sniff

Judge Scoles found that "[b]ecause the area where Marco sniffed is curtilage and because there was no license, explicit or implicit, for Marco to occupy the area where he sniffed, the dog sniff constitutes an unlawful warrantless search under the Fourth Amendment." Report and Recommendation at 10. Because the court finds that Officer Fear was objectively reasonable in relying on binding circuit precedent when conducting the dog sniff, the court "need not determine whether Jardines[3] controls the facts of this case." United States v. Givens , No. 13-2713, ___ F.3d ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.