United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OPINION AND ORDER
MARTIN REIDINGER, District Judge.
THIS MATTER is before the Court for resolution of the Defendant's Motion to Suppress [Doc. 66], and the Defendant's Objections [Doc. 76] to the Magistrate Judge's Memorandum and Recommendation ("M&R"). [Doc. 75]. For the reasons that follow, this Court will accept the Magistrate Judge's recommendations with modifications described herein and will deny the Defendant's suppression motion in full.
On August 5, 2014, the Defendant Jeffrey Scott Black and four other men were named in a Bill of Indictment filed with the Court. The grand jury charged the five men with various offenses regarding heroin, a Schedule I controlled substance, in violation of 21 U.S.C. §§ 841 and 846, and 18 U.S.C. § 2. [Doc. 1 at 1-5]. The grand jury also found probable cause to believe that Black illegally possessed firearms and charged him with offenses under 18 U.S.C. §§ 922 and 924. [Id. at 6].
On October 11, 2014, Black filed a motion to suppress. [Doc. 66]. The Government filed its Response to the Defendant's motion on November 5, 2014. [Doc. 73]. On November 19, 2014, Magistrate Judge Cayer issued his M&R. [Doc. 75]. He recommended that the Court deny the Defendant's suppression motion. [Id. at 9]. The Magistrate Judge informed the Defendant he could file any objections to the M&R within fourteen days' of service thereof. [Id.]. Black filed his objections on December 6, 2014. [Doc. 76]. The Defendant's Motion to Suppress and Objections to the M&R are now ripe for the Court's consideration.
STANDARD OF REVIEW
Since the Defendant has raised various objections to the Magistrate Judge's Memorandum and Recommendation, the Court will review the Magistrate Judge's proposed findings and conclusions de novo. 28 U.S.C. § 636(b)(1); Fed.R.Crim.P. 59(b)(3).
The detailed factual background of this case is straight forward and is set forth in the M&R. Therefore, it will not be reproduced here. The Defendant raises one factual objection which will be addressed below.
The Defendant objected to the M&R's factual recitation set forth on page 5 and the first sentence of page 6. [Doc. 76 at 1]. These facts flow directly from the Government's Response and describe what the Government contends occurred at, and immediately following, the time the search warrant was executed. [Doc. 73 at 5-7]. Black asserts that the Magistrate Judge erred in including these facts for want of verification. Because the only facts supported by oath or affirmation before the Court are contained within the search warrant application, and because the Magistrate Judge did not conduct an evidentiary hearing to take sworn testimony before issuing his M&R, the Court will accept the Defendant's factual objection. Notwithstanding the Court's acceptance of Black's factual objection, the excision of page 5 and the first sentence of page 6 from the M&R would have no effect upon the legal determinations at issue in this case. Consequently, the Court will adopt the Magistrate Judge's factual findings as set forth in his M&R except as noted above.
The Defendant's suppression motion raised two legal issues: (1) the search warrant was based upon an insufficient factual foundation, and (2) the factual information provided to establish probable cause for a search was stale. [Doc. 66 at 3; 4]. The Magistrate Judge addressed in the M&R the Defendant's assertion that the search warrant was based upon an insufficient factual foundation. The Defendant thereafter conceded the soundness of the Magistrate Judge's legal analysis rejecting his argument on this first issue.
Regarding the Magistrate Judge's legal analysis, Mr. Black does not object to that court's recitation of the applicable law. [M & R, at pp. 6-7]. Further, Mr. Black agrees with the Magistrate Judge that the relevant question is whether law enforcement provided the court with sufficient information to provide probable cause to believe that Mr. Black's house would contain evidence of the commission of a crime ...