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United States v. Caswell

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION
Aug 18, 2017
CASE NO: 2:16-cr-134-FtM-29MRM (M.D. Fla. Aug. 18, 2017)

Opinion

CASE NO: 2:16-cr-134-FtM-29MRM

08-18-2017

UNITED STATES OF AMERICA v. DAVID CASWELL


OPINION AND ORDER

On July 11, 2017, United States Magistrate Judge Mac R. McCoy submitted a Report and Recommendation (Doc. #40) to the Court recommending that Defendant's Motion to Suppress Evidence (Doc. #17) be denied. Defendant's Objections (Doc. 44) were filed on July 25, 2017.

I.

After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject or modify the magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); United States v. Powell, 628 F.3d 1254, 1256 (11th Cir. 2010). A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). See also United States v. Farias-Gonzalez, 556 F.3d 1181, 1184 n.1 (11th Cir. 2009). This requires that the district judge "give fresh consideration to those issues to which specific objection has been made by a party." Jeffrey S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990)(quoting H.R. Rep. No. 94-1609, 94th Cong., 2nd Sess, reprinted in 1976 U.S.C.C.A.N. 6162, 6163). The district judge reviews legal conclusions de novo, even in the absence of an objection. See Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994). A district court may not reject the credibility determinations of a magistrate judge without personally rehearing disputed testimony from the witness. Powell, 628 F.3d at 1256-58.

II.

Defendant sets forth three objections. Defendant objects to: (1) the finding that the NIT acted as a "tracking device" versus conducting a search; (2) the finding that there was no violation of the particularity requirement of the Fourth Amendment; and (3) the finding that the NIT was authorized by Rule 41(b)(4) as a "tracking device." (Doc. #44.) After reviewing the Report and Recommendation and the transcript of the evidentiary hearing, the Court fully agrees with the findings of fact and conclusions of law made by the magistrate judge, and rejects defendant's objections. Specifically, the Court agrees with the magistrate judge's findings that the NIT was not a search, that the NIT warrant sufficiently described the place to be searched and the items to be seized, and that NIT is a tracking device pursuant to Rule 41. Accordingly, the Court will adopt the Report and Recommendation, deny the motion to suppress, and overrule defendant's objection.

Accordingly, it is now

ORDERED:

1. The Magistrate Judge's Report and Recommendation (Doc. #40) is accepted and adopted, and it is specifically incorporated into this Opinion and Order.

2. Defendant's Motion to Suppress Evidence (Doc. #17) is DENIED.

DONE and ORDERED at Fort Myers, Florida, this 18th day of August, 2017.

/s/_________

JOHN E. STEELE

SENIOR UNITED STATES DISTRICT JUDGE Copies:
Hon. Mac R. McCoy
Counsel of Record
DCCD


Summaries of

United States v. Caswell

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION
Aug 18, 2017
CASE NO: 2:16-cr-134-FtM-29MRM (M.D. Fla. Aug. 18, 2017)
Case details for

United States v. Caswell

Case Details

Full title:UNITED STATES OF AMERICA v. DAVID CASWELL

Court:UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

Date published: Aug 18, 2017

Citations

CASE NO: 2:16-cr-134-FtM-29MRM (M.D. Fla. Aug. 18, 2017)