Summary
relying on Finley to uphold cell phone search incident to arrest
Summary of this case from U.S. v. ValdezOpinion
CRIMINAL CASE NO. 07-8-DLB.
November 13, 2007
ORDER ADOPTING REPORT AND RECOMMENDATION
This matter is before the Court upon Motions of Defendant Dennis (Doc. # 25) and Defendant Henry (Doc. # 23) to Suppress Evidence. Consistent with local practice, the motions were referred to the Magistrate Judge for evidentiary hearing and preparation of a Report and Recommendation (R R).
On September 7, 2007, Magistrate Judge Edward B. Atkins conducted a suppression hearing. After supplemental briefing by Defendants (Doc. # 32, 33) and the government (Doc. # 34), the motion was submitted for decision. On October 3, 2007, Magistrate Judge Atkins issued his Report and Recommendation wherein he recommended that the motions to suppress be denied. (Doc. # 37). More specifically, Magistrate Judge Atkins found that the traffic stop was supported by reasonable suspicion, and the length of the detention was reasonably related in scope to the purposes of the stop. Moreover, Magistrate Judge Atkins concluded that the Defendants lacked an expectation of privacy in the crack cocaine which had been thrown from the vehicle. Magistrate Judge Atkins also concluded that any evidence retrieved from Defendant Dennis' cell phone was properly acquired as a valid search incident to a lawful arrest. Finally, Magistrate Judge Atkins found no basis for suppression of evidence based on any alleged discovery violation by the government.
Defendant Dennis has not filed any objections to the R R and the time for filing objections has long expired. Defendant Henry has also failed to submit any objections to the R R and the time for submitting objections has expired.
Defendant Henry's prior counsel, Matthew J. Warnock, was permitted to withdraw on October 17, 2007. Henry's newly appointed counsel, Michael B. Fox, was given an extension to file objections until November 7, 2007. No objections were filed by that deadline on behalf of Defendant Henry.
Upon review of the R R, and the Court being otherwise sufficiently advised, IT IS ORDERED as follows:
1. The Report and Recommendation of the United States Magistrate Judge (Doc # 37) be, and it is, hereby adopted as the findings of fact and conclusions of law of the Court;
2. Defendants' Motion to Suppress Evidence (Doc. # 23, 25) be, and are hereby denied;
3. This matter is set for a Telephonic Status Conference on November 16, 2007 at 9:30 a.m., at which time the Court will schedule this matter for trial. The Court will initiate the call;
4. The time period from August 22, 2007 through the date of this Order, totaling 83 days, is deemed excludable time pursuant to Title 18, United States Code § 3161(h)(1)(F).