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United States v. Stankee

United States District Court, N.D. Iowa, Eastern Division

September 3, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
TERRY STANKEE, Defendant.

ORDER

LINDA R. READE, Chief District Judge.

I. INTRODUCTION

The matter before the court is Defendant Terry Stankee's Objections (docket no. 35) to United States Chief Magistrate Judge Jon S. Scoles's Report and Recommendation (docket no. 29), which recommends that the court deny Defendant's "Motion to Suppress" ("Motion") (docket no. 22).

II. RELEVANT PROCEDURAL BACKGROUND

On June 17, 2014, a grand jury returned an Indictment (docket no. 2) charging Defendant with knowingly and intentionally conspiring to manufacture and distribute a mixture or substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); knowingly and intentionally attempting and aiding and abetting the attempt to manufacture a mixture or substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 18 U.S.C. § 2(a); and knowingly and intentionally making a place available for use, with and without compensation, for the purpose of unlawfully manufacturing, distributing and using a mixture or substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. § 856(a)(2). The Indictment also contains a forfeiture allegation. On July 9, 2014, Defendant filed the Motion. On July 18, 2014, the government filed a Resistance (docket no. 24). On July 23, 2014, Judge Scoles held a hearing on the Motion. See July 23, 2014 Minute Entry (docket no. 25). Defendant appeared in court with his attorney, Michael Lahammer. Special Assistant United States Attorney Ravi Narayan represented the government. On July 28, 2014, Judge Scoles issued his Report and Recommendation, which recommends that the court deny the Motion. On August 12, 2014, Defendant filed his 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 only dispute in this case is whether the affidavit submitted by Deputy Sheriff Brian Hillebrand supported the state judicial magistrate's determination that officers had probable cause to search Defendant's residence. As summarized by Judge Scoles, the affidavit contained the following information:

On February 12, 2012, Deputy Sheriff Travis Hemesath was on routine patrol when he smelled the strong odor of ether while driving past the residence at 3387-110th Avenue, Coggon, Iowa.
Deputy Hemesath then parked his vehicle on a nearby road and walked to within a close proximity of the property.
As Deputy Hemesath got closer to the residence, the smell of ether got stronger.
At approximately 9:15 p.m., Deputy Hemesath advised Delaware County Deputy Sheriff Brian Hillebrand of his observations.
Deputies Hillebrand and Hemesath then went to the property to make contact with the homeowner, who Hillebrand knew to be ...

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