United States District Court, W.D. Tennessee, Western Division
H. MAYS, JR. UNITED STATES DISTRICT JUDGE
the Court is Defendant Nickey Ardd's Motion to Suppress
Evidence, filed on September 22, 2016. (Mot. to Suppress
Evidence & Mem. in Supp., ECF No. 23 (“Mot. to
Suppress”).) The United States (the
“Government”) responded in opposition on October
20, 2016. (Gov't's Resp. to Mot. to Suppress, ECF No.
28 (“Resp. to Mot. to Suppress”).) On March 2,
2017, Magistrate Judge Tu M. Pham issued an Amended Report
and Recommendation recommending that the Motion to Suppress
be denied. (ECF No. 54 (“Report”).)
March 16, 2017, Ardd filed objections to the Report. (Objs.
to Am. R. & R., ECF No. 61 (“Objs.”).) The
Government filed a response to the Objections on March 29,
2017. (Gov't's Resp. to Objs. to Am. R. & R., ECF
No. 62 (“Resp. to Objs.”).)
Court ADOPTS Sections I.A, I.C, II.A.2, II.B, and II.C of the
Report. The Court ADOPTS Section I.B of the Report to the
extent consistent with the discussion in Section III.B below.
The Court ADOPTS Section II.A.1 of the Report to the extent
consistent with the discussion in Section III.C below. The
Motion to Suppress is DENIED.
April 27, 2016, a federal grand jury returned a five-count
indictment against Ardd. (Indictment, ECF No. 1.) Ardd was
charged with (1) one count of possessing, with intent to
distribute, a detectable amount of cocaine, in violation of
18 U.S.C. § 841(a)(1) (“Count 1”); (2) one
count of knowingly using and carrying a firearm during and in
relation to a drug-trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A)(i) (“Count 2”); (3)
two counts of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1) (“Count
3” and “Count 4”); and (4) one count of
possessing a firearm from which the serial number had been
removed, obliterated, or altered, in violation of 18 U.S.C.
September 22, 2016, Ardd filed the Motion to Suppress. Ardd
argues that there was not probable cause to arrest him, that
there was not probable cause to search his residence, and
that his postarrest statement should be suppressed because he
had not been informed of his Miranda rights. (See generally
Mot. to Suppress 3-7.) The Court referred the Motion to
Suppress to Magistrate Judge Pham. (Order of Reference, ECF
No. 24.) On October 20, 2016, the Government filed its
Response to Motion to Suppress.
November 15, 2016, the Magistrate Judge conducted a hearing
on the Motion to Suppress. (Minute Entry, ECF No. 37.) The
Government presented testimony from three witnesses:
Detective William Acred, Detective Johnathon Knowlton, and
Detective Harold Tellez. (Id.; Hr'g Tr. 26-165.)
During the hearing, Ardd requested permission to file a
supplemental memorandum in support of the Motion to Suppress.
(Hr'g Tr. 165-66.) The Court granted that motion.
(Id. at 168.) Ardd filed the Supplemental Memorandum
on January 3, 2017. (Suppl. Mem. in Supp. of Mot. to Suppress
Evidence, ECF No. 40 (“Suppl. Mem.”).) On January
10, 2017, the Government filed a Response to Defendant's
Memorandum in Support of Motion to Suppress. (ECF No. 42
(“Resp. to Suppl. Mem.”).)
March 1, 2017, the Magistrate Judge entered his Report and
Recommendation. (ECF No. 53.) On March 2, 2017, the
Magistrate Judge entered an Amended Report and Recommendation
that made minor changes to the original. (See generally
Report.) On March 16, 2017, Ardd filed his Objections. On
March 29, 2017, the Government filed its Response to the
district court has the authority to “designate a
magistrate judge to conduct hearings, including evidentiary
hearings, and to submit to a judge of the court proposed
findings of fact and recommendations for the disposition, by
a judge of the court, of any motion.” 28 U.S.C. §
636(b)(1)(B). “The district judge may accept, reject,
or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with
instructions.” Fed.R.Civ.P. 72(b)(3).
district court has appellate jurisdiction over any decisions
the magistrate judge issues pursuant to such a referral. 28
U.S.C. § 636(b); Fed.R.Civ.P. 72(a). The standard of
review the district court applies depends on the nature of
the matter considered by the magistrate judge. “It is
well-settled that upon proper objection by a party, a
district court must review de novo a magistrate judge's
ruling on a motion to suppress.” United States v.
Quinney, 238 F. App'x 150, 152 (6th Cir. 2007)
(citing 28 U.S.C. § 636(b)(1); United States v.
Curtis, 237 F.3d 598, 603 (6th Cir. 2001)); see also
United States v. Ickes, No. 1:15-CR-00004-GNS-2, 2017 WL
1017120, at *1 (W.D. Ky. Mar. 15, 2017) (quoting Curtis, 237
F.3d at 603).
Court need not review -- under a de novo or any other
standard -- those aspects of a report and recommendation to
which no objection is made. Thomas v. Arn, 474 U.S.
140, 150-52 (1985); Harris v. Ocwen Loan Servicing,
LLC, No. 2:16-CV-02224-SHM-CGC, 2017 WL 899943, at *3
(W.D. Tenn. Mar. 7, 2017) (citing Arn). Objections to a
magistrate's report “must be specific in order to
focus the court's attention on the issues in dispute,
” and failure to raise an issue specifically leads to
waiver. Gant v. Bradley, No. 98-5069, 1999 WL
282643, at *3 (6th Cir. Apr. 30, 1999) (citing Miller v.
Currie, 50 F.3d 373, 380 (6th Cir. 1995); Mira v.
Marshall, 806 F.2d 636, 637-38 (6th Cir. 1986)).
Adoptions Based on Failures to Object
does not object to various parts of the Report.
section titled “Proposed Findings of Fact”
(Section I of the Report) has three subsections. (Report
2-9.) Ardd objects to certain findings of fact in Section
I.B. (Objs. 1-3.) Section I.B details “the events of
June 16, 2015” -- the “reverse-buy
operation” leading to Ardd's arrest, the search of
Ardd's residence, and Ardd's questioning after his
arrest. (Report 5-8.) Ardd does not object to the findings of
fact in Sections I.A and I.C of the Report. The Court ADOPTS
Sections I.A and I.C of the Report. Arn, 474 U.S. at 150-52;
Harris, 2017 WL 899943, at *3.
Report's section titled “Proposed Conclusions of
Law” (Section II of the Report) has three subsections.
(Report 9- 25.) Ardd objects to certain conclusions of law in
Section II.A. (Objs. 3-7.) Section II.A concludes that (1)
the search of Ardd's residence was supported by probable
cause, and (2) even if the search were not supported by
probable cause, the good-faith exception to the
probable-cause requirement would apply. (Report 9-21.)
states a conclusory objection to Sections II.B and II.C of
the Report. (Objs. 7-8.) Section II.B addresses the search of
Ardd incident to his arrest. (Report 22.) It concludes that
“the officers had ample probable cause to arrest Ardd .
. ., and because his arrest was lawful, the officers could
conduct a search of Ardd's person without running afoul
of the Fourth Amendment.” (Id.) Section II.C
addresses Ardd's postarrest statements to officers.
(Id. at 22-25.) It concludes that “the
government has met its burden of showing that Ardd knowingly
and voluntarily waived his Miranda rights and that his
post-arrest statement was made voluntarily and free of police
coercion.” (Id. at 24.)
objection to Sections II.B and II.C of the Report is stated
in one sentence: “For the reasons previously argued in
the [Motion to Suppress] and the [Supplemental Memorandum],
this Court should not adopt the [Report] and should suppress
both the [postarrest] statement and the evidence obtained
from the search of Mr. Ardd.” That sentence is
insufficient to state an objection to the Magistrate
Judge's Report. It does not isolate specific purported
errors in the Report. The Motion to Suppress and the
Supplemental Memorandum were filed before the Report. Neither
of them could or does isolate specific errors in the Report.
“It is well-established that the failure to object to
any portion of a magistrate judge's report results in a
waiver of both district-court and appellate review of that
portion.” McClain v. Kelly, 631 F. App'x
422, 441 (6th Cir. 2015); see also Gant, 1999 WL 282643, at
objections to Sections II.B and II.C of the Report have been
waived. The Court ADOPTS Sections II.B and II.C of the
Objections to Section I.B of the Report
first section of Ardd's objections asserts that the
Report is “unreliable, inaccurate and should not be
adopted.” (Report 1.) Ardd asserts that the Report
“contain[s] multiple errors in its proposed findings of
fact.” (Id. at 1-2.) As noted above, the
errors Ardd cites refer to findings in Section I.B of the
Report. Ardd cites two errors in the proposed findings of
fact. Both concern details of the reverse-buy
operation that led to Ardd's arrest.
Ardd objects that the Report incorrectly finds that, during
the reverse-buy operation leading to Ardd's arrest,
“Ardd showed [Tellez] the money.” (Objs. 2; see
also Report 5.) Ardd argues that “there was another
individual in the car and that Detective Tellez testified
that ‘both of them, they were holding money in their
laps and were counting it in front of me.'” (Objs.
2 (quoting Hr'g Tr. 125).) The Government does not
dispute that the Report contains this factual error. (Resp.
to Objs. 2.)
testimony was that both Ardd and his companion showed money
to Tellez. (Hr'g Tr. 125.) It is not entirely clear that
the Report gets this wrong. To the extent the Report's
statement, “Ardd showed the detective the money,
” could be read to suggest that only Ardd showed Tellez
money during the reverse-buy operation, the Court SUSTAINS
Ardd's objection and finds that both Ardd and his
companion showed Tellez money during the operation. Nothing
of legal significance turns on this point.
Ardd objects that the Report incorrectly states that Tellez
“‘took the cocaine out of [a storage] container
and handed it to Ardd.'” (Objs. 2 (quoting Report
6).) Ardd argues that Tellez testified that the relevant
cocaine was in a plastic bag within a Styrofoam container
within a second plastic bag. (Id. (citing Hr'g
Tr. 127, 140, 148-50).) According to Tellez's testimony,
Ardd contends, Tellez never took the cocaine “out of