United States District Court, D. New Mexico
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
MEMORANDUM OPINION AND ORDER ADOPTING PROPOSED
FINDINGS AND RECOMMENDED DISPOSITIO
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.
REGARDING OBJECTIONS TO PROPOSED FINDINGS AND
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
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.
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,  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)).
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.
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
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
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).
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
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
In re Griego, 64 F.3d at 584.
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.
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,
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
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.
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
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
22. Babadi also told Lacy: “I'm gonna see if
he's gonna give me consent to search the
vehicle.” Lapel Camera Video at 23:35.
23. Babadi added: “If not, I'm gonna . . . uh . . .
gonna tow it just due to his suspension . . .
.” 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