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United States v. Lopez-Zuniga

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

September 18, 2017



          Leonard T. Strand, Chief Judge.

         This matter is before me on a Report and Recommendation (R&R) (Doc. No. 32) in which the Honorable Kelly K.E. Mahoney, United States Magistrate Judge, recommends that I grant defendant's amended motion to suppress (Doc. No. 18).


         A district judge must review a magistrate judge's R&R under the following standards:

Within fourteen days after being served a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. 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. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.

28 U.S.C. § 636(b)(1); see also Fed. R. Crim. P. 59(b). Thus, when a party objects to any portion of an R&R, the district judge must undertake a de novo review of that portion.

         Any portions of an R&R to which no objections have been made must be reviewed under at least a “clearly erroneous” standard. See, e.g. Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (noting that when no objections are filed “[the district court judge] would only have to review the findings of the magistrate judge for clear error”). As the Supreme Court has explained, “[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)). However, a district judge may elect to review an R&R under a more exacting standard, even if no objections are filed:

Any party that desires plenary consideration by the Article III judge of any issue need only ask. Moreover, while the statute does not require the judge to review an issue de novo if no objections are filed, it does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard.

Thomas v. Arn, 474 U.S. 140, 150 (1985).


         A. Procedural History

         On February 23, 2017, the grand jury returned an indictment (Doc. No. 2) charging defendant with one count of conspiracy to distribute methamphetamine. Defendant filed a motion (Doc. No. 15) to suppress evidence on May 15, 2017, and an amended motion (Doc. No. 18) to suppress on June 2, 2017. The Government filed a resistance (Doc. No. 26) to the amended motion on June 12, 2017. Judge Mahoney conducted a hearing on June 28, 2017, and issued her R&R on August 10, 2017. The Government filed objections (Doc No. 38) and defendant has responded (Doc. No. 42).

         B. Relevant Facts

         This case involves the use of a GPS tracking device on defendant's vehicle. Special Agent Dan Louwagie of the Minnesota Bureau of Criminal Apprehension submitted an application for the first state warrant authorizing the use of the GPS device on December 21, 2015. Ex. A at 1-7.[1] A state judge for Nobles County, Minnesota, issued a warrant (Warrant 1) authorizing the use of a GPS device for 60 days the same day. Ex. A at 8-9. The 60-day warrant was renewed three times (Warrants 2, 3 and 4), following an application for an extension in Nobles County on February 18, 2016, and subsequent extensions granted upon application of Special Agent Chris Nissen, Iowa Department of Public Safety, Narcotics Enforcement Division, in Clay County, Iowa, on April 22, 2016, and June 22, 2016. See Exs. B, C, D. While the device was in place, police officers also obtained a warrant to conduct a pen registry search on defendant's phone. Ex. C at 6. Additionally, during the pendency of the second GPS device warrant, a confidential informant executed a controlled buy of amphetamines involving defendant. Ex. C at 7.

         The main issue is whether the warrants authorizing the use of the GPS device were supported by probable cause. The relevant facts from each warrant, along with Judge Mahoney's findings, are summarized below. Also at issue is whether the good faith exception applies, negating the need to suppress.

         C. The R&R

         Because much of the information in the four warrants is the same, Judge Mahoney began by determining whether Warrant No. 1 (Ex. A) was supported by probable cause. Warrant 1 contains the following statements regarding defendant:

On November 24, 2014 Iowa Department of Narcotics Enforcement [Agent] who was acting in an undercover capacity along with [Named Individual (NI)] went to Garcia Jimenez [at Known Address]. [Agent] stayed in the vehicle while [NI] went inside of the apartment complex.
While [Agent] and [NI] were driving back to Iowa [NI] informed [Agent] that his guy (Garcia Jimenez) was out of methamphetamine earlier in the day and that Garcia Jimenez would be getting in a shipment in [sic] on Monday, November 30, 2015.
Several minutes later [NI] exited the apartment complex and got back into [Agent]'s vehicle. [NI] was arrested several minutes later for an outstanding arrest warrant. While [NI] was being searched a quantity of methamphetamine was recovered.
Prior to the transaction with [Agent] and [NI] your Affiant was conducting surveillance at [Known Address]. While conducting surveillance your Affiant observed MN License 498-MHJ pull into [Known Address] and drop off an individual who resembled Garcia Jimenez.
On 12/15/2015 members of the Buffalo Ridge Drug Task Force were conducting surveillance at [Known Address].
During surveillance Buffalo Ridge Drug Task Force Agent Joe Joswiak observed Juan Jose Lopez-Zuniga and Rogelio Magana Garcia Jimenez get into MN Lic[.] 498-MHJ. Surveillance personnel followed Lopez-Zuniga and Garcia Jimenez to Sioux Falls, SD.
Surveillance personnel followed Garcia Jimenez and Lopez Zuniga to a restaurant and the shopping mall in Sioux Falls, S.D. before they returned to Worthington, MN.
Your affiant with other law enforcement personnel believe that [Garcia]Jimenez, Lopez-Zuniga and [Named Individual] are conspiring to sell illegal drugs through [Restaurants] and possibly laundering some of these drug proceeds through the [Restaurant] and area casinos and that Lopez Zuniga is transporting Jimenez and or other individuals in the 1995 LeSabre for this purpose.

         Ex. A, at 6. Following this recitation, along with five additional pages of evidence which do not relate to defendant, Louwagie was granted permission to ...

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