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United States v. James

United States District Court, D. New Mexico

August 9, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DEREK JAMES, Defendant.

          John C. Anderson United States Attorney Samuel A. Hurtado Assistant United States Attorney United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff.

          Stephen P. McCue Federal Public Defender Alejandro Benito Fernandez Assistant Federal Public Defender Federal Public Defender's Office Albuquerque, New Mexico Attorneys for the Defendant.

          MEMORANDUM OPINION AND ORDER ADOPTING PROPOSED FINDINGS AND RECOMMENDED DISPOSITIO

         THIS MATTER comes before the Court on the Magistrate Judge's Proposed Findings and Recommended Disposition, filed May 15, 2019 (Doc. 29)(“PFRD”). In the PFRD, the Honorable Laura Fashing, United States Magistrate Judge for the United States District Court for the District of New Mexico, recommends that the Court grant Defendant Derek James' Motion to Suppress Tangible Evidence and Statements, filed February 25, 2019 (Doc. 16). The PFRD requires the parties to file any objections no later than May 29, 2019. See PFRD at 18. Both Plaintiff United States of America and James filed timely objections. See Objection to Proposed Findings, filed May 29, 2019 (Doc. 36)(“James' Objection”); United States' Objections to the Magistrate Judge's Proposed Findings and Recommended Disposition (Doc. 29), filed May 29, 2019 (Doc. 37)(“United States' Objections”). The Court conducted a de novo review. Having carefully reviewed the record, including the transcript of the evidentiary hearing and the exhibits admitted into evidence, as well as the PFRD, the United States' Objections, and James' Objection, the Court finds that the Magistrate Judge's recommendation is correct. The Court therefore accepts the findings in the PFRD, adopts Magistrate Judge Fashing's recommendation, and grants James' Motion to Suppress Tangible Evidence and Statements.

         LAW REGARDING OBJECTIONS TO PROPOSED FINDINGS AND RECOMMENDATIONS

         District courts may refer suppression motions to a Magistrate Judge for a recommended disposition. See Fed. R. Crim. P. 59(b)(1) (“A district judge may refer to a magistrate judge for recommendation a defendant's . . . motion to suppress evidence . . . . The magistrate judge must promptly conduct the required proceedings.”). Rule 59(b)(2) of the Federal Rules of Criminal Procedure governs objections: “Within 14 days after being served with a copy of the recommended disposition, . . . a party may serve and file specific written objections to the proposed findings and recommendations.” Fed. R. Crim. P. 59(b)(2). When resolving objections to a magistrate judge's proposal, “[t]he district judge must consider de novo any objection to the magistrate judge's recommendation. The district judge may accept, reject, or modify the recommendation, receive further evidence, or resubmit the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 59(b)(3). Similarly, 28 U.S.C. § 636 provides:

A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.

28 U.S.C. § 636(b)(1)(C). Rule 59 of the Federal Rules of Criminal Procedure “is derived in part from Federal Rule of Civil Procedure 72.” Fed. R. Crim. P. 59 advisory committee's note to 2005 adoption. The rule's waiver provision “is intended to establish the requirements for objecting in a district court in order to preserve appellate review of magistrate judge's decisions, ” a procedure the Supreme Court approved in Thomas v. Arn, 474 U.S. 140, 155 (1985). Fed. R. Crim. P. 59 advisory committee's note.

         “‘The filing of objections to a magistrate's report enables the district judge to focus attention on those issues -- factual and legal -- that are at the heart of the parties' dispute.'” United States v. One Parcel of Real Prop., 73 F.3d 1057, 1059 (10th Cir. 1996)(“One Parcel”) (quoting Thomas v. Arn, 474 U.S. at 147). As the United States Court of Appeals for the Tenth Circuit has noted, “the filing of objections advances the interests that underlie the Magistrates Act, [1] including judicial efficiency.” One Parcel, 73 F.3d at 1059 (citing Niehaus v. Kan. Bar Ass'n, 793 F.2d 1159, 1165 (10th Cir. 1986), superseded by statute on other grounds as stated in De Vargas v. Mason & Hanger-Silas Mason Co., 911 F.2d 1377 (10th Cir. 1990); United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981)).

         The Tenth Circuit has held “that a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” One Parcel, 73 F.3d at 1060. “To further advance the policies behind the Magistrate's Act, [the Tenth Circuit], like numerous other circuits, ha[s] adopted ‘a firm waiver rule' that ‘provides that the failure to make timely objections to the magistrate's findings or recommendations waives appellate review of both factual and legal questions.'” One Parcel, 73 F.3d at 1059 (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)). In addition to requiring specificity in objections, the Tenth Circuit has held that “[i]ssues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.” Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996). See United States v. Garfinkle, 261 F.3d 1030, 1030-31 (10th Cir. 2001)(“In this circuit, theories raised for the first time in objections to the magistrate judge's report are deemed waived.”). In an unpublished opinion, the Tenth Circuit states that “the district court correctly held that [a petitioner] had waived [an] argument by failing to raise it before the magistrate.” Pevehouse v. Scibana, 229 Fed.Appx. 795, 796 (10th Cir. 2007)(unpublished).[2]

         In One Parcel, the Tenth Circuit, in accord with other Courts of Appeals, expanded the waiver rule to cover objections that are timely but too general. See One Parcel, 73 F.3d at 1060. The Supreme Court of the United States -- in the course of approving the United States Court of Appeals for the Sixth Circuit's use of this waiver rule -- noted:

It does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings. The House and Senate Reports accompanying the 1976 amendments do not expressly consider what sort of review the district court should perform when no party objects to the magistrate's report. See S. Rep. No. 94-625, pp. 9-10 (1976)(hereafter Senate Report); H. R. Rep. No. 94-1609, p. 11 (1976), U.S. Code Cong. & Admin. News 1976, p. 6162 (hereafter House Report). There is nothing in those Reports, however, that demonstrates an intent to require the district court to give any more consideration to the magistrate's report than the court considers appropriate. Moreover, the Subcommittee that drafted and held hearings on the 1976 amendments had before it the guidelines of the Administrative Office of the United States Courts concerning the efficient use of magistrates. Those guidelines recommended to the district courts that “[w]here a magistrate makes a finding or ruling on a motion or an issue, his determination should become that of the district court, unless specific objection is filed within a reasonable time.” See Jurisdiction of United States Magistrates, Hearings on S. 1283 before the Subcommittee on Improvements in Judicial Machinery of the Senate Committee on the Judiciary, 94th Cong., 1st Sess., 24 (1975)(emphasis added)(hereafter Senate Hearings). The Committee also heard Judge Metzner of the Southern District of New York, the chairman of a Judicial Conference Committee on the administration of the magistrate system, testify that he personally followed that practice. See Id. at 11 (“If any objections come in, . . . I review [the record] and decide it. If no objections come in, I merely sign the magistrate's order”). The Judicial Conference of the United States, which supported the de novo standard of review eventually incorporated in § 636(b)(1)(c), opined that in most instances no party would object to the magistrate's recommendation, and the litigation would terminate with the judge's adoption of the magistrate's report. See Senate Hearings, at 35, 37. Congress apparently assumed, therefore, that any party who was dissatisfied for any reason with the magistrate's report would file objections, and those objections would trigger district court review. There is no indication that Congress, in enacting § 636(b)(1)(c), intended to require a district judge to review a magistrate's report to which no objections are filed. It did not preclude treating the failure to object as a procedural default, waiving the right to further consideration of any sort. We thus find nothing in the statute or the legislative history that convinces us that Congress intended to forbid a rule such as the one adopted by the Sixth Circuit.

Thomas v. Arn, 474 U.S. at 151-52 (footnotes omitted).

         The Tenth Circuit has noted, “however, that ‘[t]he waiver rule as a procedural bar need not be applied when the interests of justice so dictate.'” One Parcel, 73 F.3d at 1060 (quoting Moore, 950 F.2d at 659 (“We join those circuits that have declined to apply the waiver rule to a pro se litigant's failure to object when the magistrate's order does not apprise the pro se litigant of the consequences of a failure to object to findings and recommendations.”)). Cf. Thomas v. Arn, 474 U.S. at 154 (noting that, while “[a]ny party that desires plenary consideration by the Article III judge of any issue need only ask, ” a failure to object “does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard”). In One Parcel, the Tenth Circuit also noted that the district judge had decided sua sponte to conduct a de novo review despite the lack of specificity in the objections, but the Tenth Circuit held that it would deem the issues waived on appeal, because such action would advance the interests underlying the waiver rule. See 73 F.3d at 1060-61 (citing cases from other Courts of Appeals where district court elected to address merits despite potential application of waiver rule, but Courts of Appeals opted to enforce waiver rule).

         Where a party files timely and specific objections to the Magistrate Judge's proposed findings and recommendation, on “dispositive motions, the statute calls for a de novo determination, not a de novo hearing.” United States v. Raddatz, 447 U.S. 667, 674 (1980). “[I]n providing for a ‘de novo determination' rather than de novo hearing, Congress intended to permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a magistrate's proposed findings and recommendations.” United States v. Raddatz, 447 U.S. at 676 (quoting 28 U.S.C. § 636(b) and citing Mathews v. Weber, 423 U.S. 261, 275 (1976)). The Tenth Circuit requires a “district court to consider relevant evidence of record and not merely review the magistrate judge's recommendation” when conducting a de novo review of a party's timely, specific objections to the magistrate's report. In re Griego, 64 F.3d 580, 583-84 (10th Cir. 1995). “When objections are made to the magistrate's factual findings based on conflicting testimony or evidence . . . the district court must, at a minimum, listen to a tape recording or read a transcript of the evidentiary hearing.” Gee v. Estes, 829 F.2d 1005, 1008-09 (10th Cir. 1987).

         A district court must “clearly indicate that it is conducting a de novo determination” when a party objects to the Magistrate Judge's report “based upon conflicting evidence or testimony.” Gee v. Estes, 829 F.2d at 1009. On the other hand, a district court fails to meet the requirements of 28 U.S.C. § 636(b)(1) when it indicates that it gave “considerable deference to the magistrate's order.” Ocelot Oil Corp. v. Sparro Indus., 847 F.2d 1458, 1464 (10th Cir. 1988). A district court need not, however, “make any specific findings; the district court must merely conduct a de novo review of the record.” Garcia v. City of Albuquerque, 232 F.3d 760, 766 (10th Cir. 2000). “[T]he district court is presumed to know that de novo review is required. Consequently, a brief order expressly stating the court conducted de novo review is sufficient.” Northington v. Marin, 102 F.3d 1564, 1570 (10th Cir. 1996)(citing In re Griego, 64 F.3d at 583-84). “[E]xpress references to de novo review in its order must be taken to mean it properly considered the pertinent portions of the record, absent some clear indication otherwise.” Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42, 8 F.3d 722, 724 (10th Cir. 1993). The Tenth Circuit has previously held that a district court properly conducted a de novo review of a party's evidentiary objections when the district court's “terse” order contained one sentence for each of the party's “substantive claims” and did “not mention his procedural challenges to the jurisdiction of the magistrate to hear the motion.” Garcia v. City of Albuquerque, 232 F.3d at 766. The Tenth Circuit has explained that brief district court orders that “merely repeat[] the language of § 636(b)(1) to indicate its compliance” are sufficient to demonstrate that the district court conducted a de novo review:

It is common practice among district judges in this circuit to make such a statement and adopt the magistrate judges' recommended dispositions when they find that magistrate judges have dealt with the issues fully and accurately and that they could add little of value to that analysis. We cannot interpret the district court's statement as establishing that it failed to perform the required de novo review.

In re Griego, 64 F.3d at 584.

         Notably, because “Congress intended to permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a magistrate's proposed findings and recommendations, ” Raddatz, 447 U.S. at 676 (emphasis omitted), a district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate, ” 28 U.S.C. § 636(b)(1). See Bratcher, 8 F.3d at 724-25 (holding that the district court's adoption of the magistrate judge's “particular reasonable-hour estimates” is consistent with the de novo determination that 28 U.S.C. § 636(b)(1) and United States v. Raddatz require).

         FACTUAL BACKGROUND

         [3]Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed. R. Crim. P. 12(d) (“When factual issues are involved in deciding a motion, the court must state its essential findings on the record.”). The findings of fact in this Memorandum Opinion and Order shall serve as the Court's essential findings for rule 12(d) purposes. The Court makes these findings under rule 104(a) of the Federal Rules of Evidence's authority, which requires a judge to decide preliminary questions relating to evidence's admissibility, including a search's or seizure's legality. See United States v. Merritt, 695 F.2d 1263, 1269-70 (10th Cir. 1982). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed.R.Evid. 104(a) (“The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so doing, the court is not bound by evidence rules, except those on privilege.”). Thus, the Court may consider hearsay in ruling on a motion to suppress. See United States v. Lopez-Carillo, 536 Fed.Appx. 762, 768-69 (10th Cir. 2013)(unpublished)(“[T]he Supreme Court has made it clear hearsay is admissible in suppression hearings. . . . As a result, the restriction in the Confrontation Clause against admission of testimonial statements . . . is not implicated here.” (citing United States v. Matlock, 415 U.S. 164, 172-77 (1974); United States v. Sanchez, 555 F.3d 910, 922 (10th Cir. 2009); United States v. Miramonted, 365 F.3d 902, 904 (10th Cir. 2004))).

1. On February 6, 2017, Farmington Police Officer Navid Babadi was on patrol. See Draft Transcript of Hearing at 5:25-7:22 (taken April 12, 2019)(Fashing, Hurtado, Fernandez, Babadi)(“Tr.”).[4]
2. Babadi saw Defendant Derek James drive by him sometime between 11:00 p.m. and 11:30 p.m. See Tr. 8:2-17 (Babadi, Hurtado); id. at 10:19-22 (Babadi, Hurtado); id. at 28:11-29:1 (Babadi, Hurtado).
3. Babadi recognized James from prior encounters. See Tr. 8:16-17 (Babadi, Hurtado).
4. Babadi checked James' license plate and driver's license status on Babadi's mobile system inside his patrol unit, and the system indicated that James' license was suspended. See Tr. 8:18-21 (Babadi, Hurtado); id. at 9:14-10:4 (Babadi, Hurtado); id. at 40:2-41:5 (Babadi, Fernandez); id. at 42:4-24 (Babadi, Fernandez).[5]
5. Babadi engaged his emergency equipment and stopped James. See Tr. 8:22-24 (Babadi, Hurtado); id. at 10:5-14 (Babadi, Hurtado).
6. Once he engaged his emergency equipment, Babadi's dash camera automatically recorded the events from approximately one minute before he turned on the equipment until Babadi pulled over James, and Magistrate Judge Fashing admitted that video recording into evidence as Defendant's Exhibit C. See Tr. 31:1-15 (Fashing); id. at 32:21-22 (Fernandez); id. at 33:16-21 (Babadi, Fashing); Dashcam Video (taken February 6, 2017), admitted April 12, 2019, at hearing as Defendant's Exhibit C.
7. James pulled into a parking area near San Juan and Scott in Farmington, New Mexico. See Tr. 10:12-14; id. at 64:12-65:3; Dashcam Video at 01:02-23 (showing that James pulled off the road into a parking area).
8. Before James stopped, Babadi saw him moving around inside his car, which Babadi described as a “furtive movement.” Tr. at 10:14-18 (Babadi, Hurtado); id. at 13:8-14 (Babadi, Hurtado); id. at 65:4-16 (Babadi, Fernandez).
9. Babadi thought that James might be hiding something. See Tr. at 65:17-66:11 (Babadi, Fernandez).
10. Babadi got out of his patrol unit and told James from the driver's side window that he pulled James over for a suspended license. See Tr. at 11:14-18 (Babadi, Hurtado); Dashcam Video at 01:40-43; Lapel Camera Video at 23:28 (taken February 6, 2017), admitted April 12, 2019, at hearing as Defendant's Exhibit D.[6]
11. Babadi asked James for his driver's license, registration, and insurance, and James handed him a state identification card and his registration, but could not find his proof of insurance. See Tr. at 54:8-12 (Babadi, Fernandez); Lapel Camera Video at 23:28-23:29.
12. After a short conversation, Babadi went back to his patrol unit to check with dispatch to confirm that James' license was suspended. See Tr. at 11:19-12:7 (Babadi, Hurtado); Lapel Camera Video at 23:28-23:32.
13. Babadi checked with dispatch to confirm that James' license was suspended, and he also asked whether there were any warrants for James' arrest originating in any other jurisdictions. See Tr. at 12:5-19 (Babadi, Hurtado).
14. The dispatch operator confirmed that James' license was invalid, but she did not use the word suspended. See Tr. at 58:22-60:9 (Babadi, Fernandez).
15. The dispatch operator said the license was “invalid-expired, ” although the expiration date which she gave was a date in the future. Tr. at 60:8-15 (Babadi, Fernandez).
16. Babadi insisted, however, that the license was invalid. See Tr. at 60:16-62:18 (Babadi, Fernandez).
17. Babadi asked the dispatch operator to send a backup officer. See Tr. at 13:5-7 (Babadi, Hurtado).
18. The backup officer, Sergeant Lacy, arrived before Babadi returned to talk to James. See Tr. at 13:5-10 (Babadi, Hurtado); Lapel Camera Video at 23:35.
19. When Lacy arrived, Babadi told him -- out of James' earshot -- that James' license was suspended and that James did not have insurance, but that, as soon as Babadi stopped him, “he like stuffed something under the seat.” Lapel Camera Video at 23:35.
20. Babadi added: “I've dealt with him before. I know he's Code 12.” Lapel Camera Video at 23:35.
21. “Code 12” means that Babadi thought that James was involved in narcotics activity. Tr. at 67:14-68:12 (Babadi, Fernandez).
22. Babadi also told Lacy: “I'm gonna see if he's gonna give me consent to search the vehicle.”[7] Lapel Camera Video at 23:35.
23. Babadi added: “If not, I'm gonna . . . uh . . . gonna tow it just due to his suspension . . . .”[8] Lapel Camera Video at 23:35-36.
24. After his conversation with Lacy, Babadi went back to James and asked him to step out of his car so that Babadi could ask him about the “furtive movement” he saw just ...

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