United States District Court, E.D. Tennessee
MEMORANDUM OPINION AND ORDER
A. VARLAN, UNITED STATES DISTRICT JUDGE
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].
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
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.
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.
Standard of Review
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).
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
Validity of Consent to the July 30, 2018 Trailer
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].
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 ...