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United States v. Ardd

United States District Court, W.D. Tennessee, Western Division

April 18, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
NICKEY ARDD, Defendant.

          ORDER

          SAMUEL H. MAYS, JR. UNITED STATES DISTRICT JUDGE

         Before 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”).)

         On 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.”).)

         The 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.

         I. BACKGROUND

         On 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. § 922(k).

         On 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.

         On 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.[1] (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.”).)

         On 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 Objections.

         II. STANDARDS

         A 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).

         The 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).

         The 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)).

         III. ANALYSIS

         A. Adoptions Based on Failures to Object

         Ardd does not object to various parts of the Report.

         The 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.

         The 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.)

         Ardd 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.)

         Ardd's 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.”[2] 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 *3.

         Ardd's 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 Report.

         B. Objections to Section I.B of the Report

         The 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.[3] Both concern details of the reverse-buy operation that led to Ardd's arrest.

         First, 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.)

         Tellez's 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.

         Second, 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 [a] ...


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