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United States v. Duggan

United States District Court, E.D. Tennessee

July 17, 2019

UNITED STATES OF AMERICA Plaintiff,
v.
DANIEL GARY DUGGAN, Defendant.

          MEMORANDUM OPINION AND ORDER

          THOMAS A. VARLAN, UNITED STATES DISTRICT JUDGE

         This criminal action is before the Court on the Report and Recommendation (the “R&R”) of Magistrate Judge H. Bruce Guyton, entered on April 17, 2019 [Doc. 33], which addresses the defendant's motion to suppress [Doc. 18]. After considering the parties' oral and written arguments, Magistrate Judge Guyton recommended that defendant's motion be denied. The defendant filed an objection to the R&R [Doc. 37], to which the government responded [Doc. 41].

         I. Background

         The Court presumes familiarity with the R&R in this case, but for purposes of background, includes the following findings of fact as articulated in the R&R:

Patricia Duggan is the owner of both properties at issue in this case- 503 Waller Ferry Road and 1640 Parkway Drive in Lenoir City, Tennessee. The Defendant was arrested by the Loudon County Sheriff's Office on July 28, 2018, for domestic assault.
Patricia Duggan signed a Consent to Search Form on July 30, 2018, at 8:25 p.m., authorizing law enforcement to conduct a complete search of the premises and property, including all buildings and vehicles, located at “503 Waller Ferry [Road], Lenoir City, TN, House and White Trailer Next Door.” [Exh. 3]. Law enforcement officers, including Special Agent Makemson and Detective Stanley, subsequently conducted a search of the property at 503 Waller Ferry Road, including the house and trailer. After the search on July 30, 2018, Patricia Duggan signed a consent to the forfeiture of several items seized from the trailer at 503 Waller Ferry Road, including: 1) a black homemade silencer with no serial number; 2) approximately 42 rounds of miscellaneous ammunition; 3) a Glenfield Model 25 .22 caliber rifle; 4) approximately 277 rounds of miscellaneous ammunition; 5) approximately 89 rounds of miscellaneous ammunition; 6) a Model 1900 .22 caliber Brevettata starter pistol; 7) one loaded magazine from Room A; and 8) six loaded magazines from Room B. [Exh. 6].
On August 28, 2018, Special Agent Makemson filed an application for a search warrant to search the residence located at 1640 Parkway Drive, Lenoir City, Tennessee, 37771. [Exh. 1]. In support of this application, Special Agent Makemson filed a supporting affidavit as well as pictures of the property. Magistrate Judge Debra C. Poplin signed the search warrant on August 28, 2018, finding that probable cause existed to search the property at 1640 Parkway Drive. [Id.].
Law enforcement officers then searched the property at 1640 Parkway Drive on August 30, 2018. Several items were seized following the search, including: 1) one round of .22 caliber ammunition; 2) one round of .25 caliber/loaded Ruger magazine with six “rounds .380/1 round .22 blank;” 3) 38 rounds of assorted .22 caliber ammunition; 4) 26 rounds of .223 caliber ammunition; 5) five rounds of .45 caliber ammunition; 6) one round of 12 gauge ammunition; 7) one round of .357 caliber ammunition; 8) 215 rounds of assorted caliber ammunition; and 9) a suspected machine gun- Glock selector switch. [Exh. 1].
On August 30, 2018, after the execution of the search warrant and while the Defendant was still in jail, Special Agent Makemson and law enforcement officers then obtained Ms. Duggan's consent to search the property on 503 Waller Ferry Road for a second time. [Exh. 8]. Following this search, approximately seventeen rounds of additional ammunition were found.

         II. Standard of Review

         A court must conduct a de novo review of those portions of a magistrate judge's report and recommendation to which a party objects unless the objections are frivolous, conclusive, or general. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Smith v. Detroit Fed'n of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987); Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). “Objections disputing the correctness of the magistrate's recommendation, but failing to specify the findings believed to be in error are too general and therefore insufficient.” Stamtec, Inc. v. Anson, 296 Fed.Appx. 516, 519 (6th Cir. 2008) (citing Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006)). The Court “may accept, reject, or modify, in whole or in part, the findings or recommendations” made by the magistrate judge. 28 U.S.C. § 636(b)(1).

         III. Analysis

         The defendant objects to Magistrate Judge Guyton's determinations that: (1) Patricia Duggan had lawful authority to consent to the search of defendant's trailer on July 30, 2018; and (2) the officers had probable cause for the warrant to search the residence located at 1640 Parkway Drive on August 30, 2018. The Court will address each objection in turn.

         A. Validity of Consent to the July 30, 2018 Trailer Search

         Neither party disputes the R&R's conclusions that defendant had an expectation of privacy in the trailer at 503 Waller Ferry Road or that Patricia Duggan lacked actual authority to consent to its search. Because these issues are not contested, the Court adopts the Magistrate Judge's recommendations. See 28 U.S.C. § 636(b)(1). Defendant, however, does contest the Magistrate Judge's conclusion that Patricia Duggan had apparent authority to consent to the trailer's search [Doc. 37]. In response, the government argues that the R&R correctly decided this issue, or alternatively, that the good faith exception applies [Doc. 41].

         The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. Warrantless searches are presumptively unreasonable, Minnesota v. Dickerson, 508 U.S. 366, 372 (1993), however an exception exists where valid consent is obtained. United States v. Lucas, 640 F.3d 168, 174 (6th Cir. 2011). The government bears the burden of demonstrating by a preponderance of the evidence and ...


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