Opinion
Criminal No. 04-184 ADM/JSM.
August 16, 2004
Erika Mozangue, Esq., Assistant United States Attorney, Minneapolis, MN, on behalf of Plaintiff United States of America.
Thomas H. Shiah, Esq., Law Offices of Thomas H. Shiah, Ltd., Minneapolis, MN, on behalf of Defendant Scott William Sutherlin.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge pursuant to the Objections of Defendant Scott William Sutherlin ("Defendant") [Docket No. 34] to the July 28, 2004 Report and Recommendation ("RR") of Magistrate Judge Janie S. Mayeron [Docket No. 32]. The RR was issued following a contested hearing held on July 12, 2004, before Judge Mayeron.
The RR denies in part and grants in part Defendant's Motion to Suppress any Physical Evidence, Statements Made by Defendant or Identifications of Defendant Obtained as a Result of any Illegal Searches, Seizures, Interrogations, or Identification Procedures [Docket No. 13]. The factual background in this matter is set forth in the RR and is incorporated by reference for purposes of the present Objections. For the reasons set forth below, the Objections are denied and the RR is adopted.
II. DISCUSSION
The district court must undertake an independent, de novo, review of those portions of a RR to which objection is made and "may accept, reject, or modify, in whole or part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C); see also D. Minn. LR 72.1(c)(2).Defendant objects to two recommendations of the RR. Defendant first objects to the finding that probable cause existed to support search warrants issued in relation to the residence at 7365 Paul Road, certain vehicles, and a black backpack. Second, Defendant objects to the RR's conclusion that the eyewitness identification of Defendant was not improperly suggestive. Based on the following, the recommendations of the RR are adopted.
Defendant does not provide any factual or legal basis for his Objections. Rather, Defendant requests a review of the RR's findings stating that he does not agree with the rationales set forth by Judge Mayeron. The first Objection is based on the RR's recommendation relating to whether probable cause existed for various search warrants. See Illinois v. Gates, 462 U.S. 213, 236, 238 (1983); United States v. Fladten, 230 F.3d 1083, 1085 (8th Cir. 2000).
In relation to the warrant for the Paul Road residence and specified vehicles, the RR found that probable cause existed based on the confirmation by several witnesses of the escape vehicle used during the bank robbery. The vehicle, as well as the address it was registered to, were named in the warrant. The supporting affidavit articulated sufficient probable cause for this warrant. See Gates, 462 U.S. at 236, 238; Fladten, 230 F.3d at 1085.
A second warrant was issued on March 29, 2004 for the same residence and two vehicles, based on information provided by the Defendant's ex-wife which supported probable cause to search the residence. However, as the RR correctly notes, the face of the warrant does not support probable cause in relation to the two vehicles at the property. RR at 22. As a result, items seized from the vehicles will be suppressed. See Gates, 462 U.S. at 236, 238; Fladten, 230 F.3d at 1085.
A third warrant issued on March 30, 2004 for the search of the black backpack was premised on statements from the Defendant's ex-wife which suggested that the proceeds from the bank robbery may have been stored in the black backpack. Again, this evidence adequately supported probable cause for the warrant. See Gates, 462 U.S. at 236, 238; Fladten, 230 F.3d at 1085.
Finally, the April 5, 2004 warrant for Defendant's two vehicles was based on evidence obtained from Defendant's ex-wife, prior searches, and discussions with the Eagan police department. Based on this evidence, probable cause existed for the April 5, 2004 warrant. See Gates, 462 U.S. at 236, 238; Fladten, 230 F.3d at 1085.
Defendant's second Objection relates to the recommendation regarding the eyewitness identifications. Defendant argues that was he impermissibly highlighted because his skin color is lighter than the other individuals in the photo array. The RR found that the photo array consisted of African American males, similar in characteristics, age, weight, build, facial shape, and hair style. Although some individuals in the photo array had darker skin, one had skin similar to the color of the Defendant. Accordingly, the photo array was not impermissibly suggestive.See United States v. Maldonado-Rivera, 922 F.2d 934, 974 (2d Cir. 1990); see also United States v. Roberts, 928 F. Supp. 910, 926 (W.D. Mo. 1996) (citing Salam v. Lockhart, 874 F.2d 525, 529 (8th Cir. 1989)). Accordingly, Defendant's Objections are denied.
III. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. Judge Mayeron's RR [Docket No. 32] is ADOPTED in its entirety; and
2. Defendant's Objections [Docket No. 34] are DENIED.