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United States v. Ardd

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

September 18, 2017

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

          ORDER

          SAMUEL H. MAYS, JR. UNITED STATES DISTRICT JUDGE.

         Before the Court are two motions filed by Defendant Nickey Ardd: (1) Motion To Suppress Controlled Substance Evidence (ECF No. 67) and (2) Motion to Reconsider Order Denying In Part Motion to Suppress and requesting a Franks hearing (ECF No. 68), both filed on May 23, 2017. On July 26, 2017, United States Magistrate Judge Tu M. Pham issued a Report and Recommendation (the “Report”). (ECF No. 83.) The Report recommends that both motions be denied. (Id. at 553.)[1]

         On August 11, 2017, Defendant filed a motion asking to extend the deadline to file objections to the Report to August 14, 2017. (ECF No. 88.) The Court granted the motion the same day. (ECF No. 89.) On August 17, 2017, Defendant filed untimely ob- jections to the Report. (ECF No. 90.)[2] On September 1, 2017, the Government responded to the objections. (ECF No. 91.)

         For the following reasons, the Court ADOPTS the Magistrate Judge's Report. The Motion to Reconsider and request for a Franks hearing are DENIED. The Motion to Suppress is DENIED.

         I. BACKGROUND

         The facts are stated more fully in the Order dated April 18, 2017. (ECF No. 63.)

         On April 27, 2016, a federal grand jury returned a five-count indictment against Defendant. (ECF No. 1.) Among the charges against Defendant was one count of possessing, with intent to distribute, a detectable amount of cocaine, in violation of 18 U.S.C. § 841(a)(1).

         On September 22, 2016, Defendant filed a Motion to Suppress. (ECF No. 23.) The Court referred the Motion to Suppress to Magistrate Judge Pham. (ECF No. 24.) After a hearing on the Motion to Suppress, 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. (ECF No. 54) On April 18, 2017, the Court adopted the Report in part and issued an order denying the motion to suppress. (ECF No. 63.)

         On May 23, 2017, Defendant filed two more pre-trial motions. The first seeks to suppress the cocaine he allegedly purchased from undercover officers on July 16, 2015. (ECF No. 67.) The second seeks reconsideration of the Court's April 18, 2017 Order, and requests a Franks hearing on the search warrant affidavit signed by Detective Harold Tellez of the Memphis Police Department. (ECF No. 68.)

         On July 26, 2017, the Magistrate Judge entered his Report (ECF No. 83.) The Report recommends denial of both motions. (Id. at 553.)

         II. JURISDICTION & STANDARD OF REVIEW

         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 depends on the nature of the matter considered by the magistrate judge. “[U]pon 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)).

         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). Objections to any part of a Magistrate Judge's disposition “must be clear enough to enable the district court to discern those issues that are dispositive and contentious.” Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995); see also Arn, 474 U.S. at 147 (stating that the purpose of the rule is to “focus attention on those issues . . . that are at the heart of the parties' dispute.”). A general, frivolous, or conclusory objection will be treated as if no objection had been made. Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991); see also Mira v. ...


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