United States v. Dat

UNITED STATES OF AMERICA, Plaintiff, v. DILANG D. DAT, Defendant.

No. 8:22-CR-147

United States District Court, D. Nebraska

February 22, 2023

ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATIONS

Brian C. Buescher United States District Judge.

This matter is before the Court on defendant Dilang N. Dat's objections to United States Magistrate Judge Michael D Nelson's Findings and Recommendations. Filing 116; Filing 118. In two Findings and Recommendations, Judge Nelson recommended to the undersigned that Dat's Motion to Dismiss for violations of the Speedy Trial Act and the Sixth Amendment's guarantee of a right to a speedy trial should be denied, Filing 112, and that Dat's Motion to Suppress evidence located during a search of Dat's residence should be denied, Filing 114. Having carefully reviewed the matter de novo, 28 U.S.C. § 636(b)(1), the Court overrules Dat's objections, adopts Judge Nelson's Findings and Recommendations in their entirety and denies Dat's Motions.

Dat's argument that the Speedy Trial Act has been violated because the time he was arrested by Nebraska authorities and subject to Nebraska state prosecution should be counted in this Federal case is without merit.^[1] See United States v Garner, 32 F.3d 1305, 1309 (8th Cir. 1994) (“The arrest on state charges does not engage the speedy trial protection for a subsequent federal charge.”); see also United States v. Haynes, 958 F.3d 709, 713 (8th Cir. 2020) (“The thirty-day clock to return an indictment under the Act begins when there is a federal arrest or summons .... [M]ere delay between a state arrest and federal indictment does not constitute evidence of collusion [between federal and state prosecutors].”). Similarly, Dat's Sixth Amendment right to a speedy trial has not been violated because the Indictment has only been pending for approximately eight months, with much of the delay caused by Dat's repeated requests to continue the pretrial motion deadline and these current Motions. See United States v. Titlbach, 339 F.3d 692, 699 (8th Cir. 2003) (holding that an eighth month delay was not presumptively prejudicial and noting that much of the delay could be attributed to the defendant and his codefendants).

The Court also agrees with Judge Nelson that the affidavit relied upon by the judge issuing the search warrant established probable cause. See United States v. Reed, 25 F.4th 567, 569 (8th Cir. 2022) (outlining applicable standards). The trash pull conducted by law enforcement was lawful because the garbage outside of Dat's residence was readily accessible to the public. See United States v Hansen, 27 F.4th 634, 637 (8th Cir. 2022). The garbage 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 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) (“[I]n fact, ‘our court appears close to a blanket exception holding that...