United States District Court, N.D. Iowa, Western Division
ORDER REGARDING REPORT AND RECOMMENDATION
Leonard T. Strand, Chief Judge.
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).
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.
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
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
Thomas v. Arn, 474 U.S. 140, 150 (1985).
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).
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
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
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.
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
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
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
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.
at 6. Following this recitation, along with five additional
pages of evidence which do not relate to defendant, Louwagie
was granted permission to ...