United States v. Dat

UNITED STATES OF AMERICA, Plaintiff, v. BALING N. DAT Defendant.

No. 8:22-CR-147

United States District Court, D. Nebraska

February 23, 2023

ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION

Brian C. Buescher, United States District Judge.

This matter is before the Court on Magistrate Judge Michael D Nelson's Findings and Recommendation recommending that defendant Baling N. Dat's Motion to Suppress be denied. Filing 113. No objections were filed within fourteen days of the Findings and Recommendation. See NECrimR 59.2.

Under 28 U.S.C. § 636(b)(1),

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].

28 U.S.C. § 636(b)(1). The Eighth Circuit Court of Appeals has held that that “it is reversible error for the district court to fail to conduct a de novo review of a magistrate judge's report where such review is required.” Woods v. Burt, No. C 06 3038 MWB 2007 WL 1959102, at *1 (N.D. Iowa July 3, 2007) (citing Hosna v. Groose, 80 F.3d 298, 306 (8th Cir. 1996)). Nevertheless, 28 U.S.C. § 636(b)(1) only requires de novo review of “those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). Accordingly, those portions of a findings and recommendation to which no objection is made are reviewed only for “plain error.” See Griffini v. Mitchell 31 F.3d 690, 692 (8th Cir. 1994) (reviewing factual findings for “plain error” where no objections to the magistrate judge's report were filed).

2

The Court has thoroughly reviewed the record and Judge Nelson's Order. Judge Nelson correctly concluded that the affidavit relied upon by the judge issuing the search warrant established probable cause. United States v. Reed 25 F.4th 567, 569 (8th Cir. 2022) (outlining applicable standards). The garbage searched during a trash pull containing marijuana residue and ammunition, which was found in two black latex gloves; felons and gang members living in the residence; law enforcement receiving a tip that there were drugs being sold and stored in the residence; and other supporting statements in the affidavit noted by Judge Nelson established probable cause to issue a search warrant. See United States v. Shockley, 816 F.3d 1058, 1062 (8th Cir. 2016) (holding that a trash pull uncovering green leafy substance that tested positive for THC, eleven plastic gloves, and eight sandwich baggies established probable cause for search warrant); see also United States v Seidel, 677 F.3d 334, 338 (8th Cir. 2012) (“[...