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United States v. Sanders

United States District Court, N.D. Indiana, Fort Wayne Division

August 20, 2018

UNITED STATES OF AMERICA
v.
JOSEPH E. SANDERS

          OPINION AND ORDER

          THERESA L. SPRINGMANN CHIEF JUDGE

         On August 16, 2017, Defendant Joseph E. Sanders filed a Motion to Suppress [ECF No. 30]. The Defendant also filed a Supplemental Motion to Suppress [ECF No. 47] on October 25, 2017. The Court referred [ECF Nos. 33, 49] the Motions to Magistrate Judge Susan L. Collins to conduct any necessary hearings and to issue a report and recommendation that included proposed findings of fact and recommendations for the disposition of the Motions. The Defendant appeared with Court-appointed counsel Anthony Churchward on November 6, 2017, and November 14, 2017, at hearings before the Magistrate Judge [ECF Nos. 51, 52]. After the hearing, Attorney Churchward moved to withdraw as attorney for the Defendant [ECF No. 60]. After a hearing on February 20, 2018 [ECF No. 65], the Court found that the Defendant had knowingly and voluntarily waived his right to counsel and permitted him to represent himself; however, the Court appointed Attorney Churchward as stand-by counsel in the case. The Defendant filed his Brief in Support of his Motion to Suppress [ECF No. 67] on March 13, 2018. On March 19, 2018, he also filed a Motion to Dismiss [ECF No. 69], and the Court advised [ECF No. 71] that the Magistrate Judge should consider that Motion along with other submissions related to the Defendant's Motions to Suppress. The Government filed its Response [ECF No. 83] on April 23, 2018, and the Defendant replied [ECF No. 84] on May 11, 2018. On June 11, 2018, the Magistrate Judge issued a Report and Recommendation [ECF No. 85], recommending that the Court deny the Defendant's Motions to Suppress.

         Pursuant to the Federal Magistrate's Act, Title 28 U.S.C. § 636(b)(1)(A)-(C), a magistrate judge does not have authority to issue a final order on these pending Motions. Instead, the Magistrate Judge submits proposed findings of fact and recommendations to a district court. See United States v. Sabo, No. 1:10-CR-21, 2010 WL 4628242, at *1 (N.D. Ind. Nov. 8, 2010). If a party files a timely objection to the magistrate judge's report and recommendation, § 636(b)(1) provides that a district judge is to make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. The court may accept, reject, and/or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge also may receive further evidence or recommit the matter to the magistrate judge with instructions.

         After no objections were filed either by the Defendant or by the Government, the Court reviewed the Report and Recommendation and adopted it in full [ECF No. 86] on July 11, 2018. Subsequently, the pro se Defendant filed a Motion to Object [ECF No. 92], advising the Court that he never received a copy of the Report and Recommendation at his place of incarceration and therefore was unable to make timely objections. The Court granted [ECF No. 95] his Motion on August 9, 2018, vacated its Opinion and Order [ECF No. 86] adopting the Magistrate Judge's Report and Recommendation, and set a briefing schedule with regard to the Defendant's objections. The Government filed a Notice [ECF No. 98] that it would not be responding to the Defendant's objections and would rely on its previous briefing and the reasoning set for in the Magistrate Judge's Report and Recommendation. Without a response from the Government, the Defendant need not file a reply for the Court to proceed with its consideration of the Defendant's objections to the Magistrate Judge's Report and Recommendation.

         Before turning to the merits of the Defendant's objections, the Court notes that the Defendant has also filed a Motion to Request a Deposition Hearing [ECF No. 93] in which he requests to take the depositions of Task Force Officer Caleb Anderson, United States Marshal Eric Anderson, United States Marshal John Simpson, Special Agent Timothy Worthen, Angelia Freeman, and Officer Geff Norton in order “to question witnesses and confirm the truth” regarding the allegations in the Defendant's Motions to Suppress. The Government filed a Response [ECF No. 99], objecting to the Defendant's request to take depositions of these witnesses. Federal Rule of Criminal Procedure 15 permits depositions when necessary to preserve testimony for trial due to exceptional circumstances. See United States v. Knox, 540 F.3d 708, 717 (7th Cir. 2008) (noting that a deposition in a criminal case is “an unusual occurrence.”); United States v. Morrison, 946 F.2d 484, 490 (7th Cir. 1991) (citing Fed. R. Crim. P. 15). There is no indication that any of these witnesses cannot be present at the trial, and there is therefore no need to preserve their testimony for trial. Thus, the Defendant is not entitled to take the requested depositions pursuant to the Federal Rules of Criminal Procedure.

         To the extent that the Defendant's request is one for further evidentiary proceedings related to his Motions to Suppress, the Court also does not find such depositions appropriate. Each of these witnesses testified at the two-day evidentiary hearing before the Magistrate Judge, at which time the Defendant had ample opportunity to cross-examine them. The Court finds that the record before the Magistrate Judge is sufficient to allow this Court to make a de novo determination, where necessary. See United States v. Raddatz, 447 U.S. 667, 673-76 (1980) (holding that de novo review does not require a de novo evidentiary hearing, even when witness credibility is at issue).[1]

         ANALYSIS

         If a party files a timely objection to the magistrate judge's report and recommendation, § 636(b)(1) provides that:

the 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. The court may accept, reject, modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge also may receive further evidence or recommit the matter to the magistrate judge with instructions.

         Portions of a recommendation to which no party objects are reviewed for clear error. Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).

         A. Findings of Fact

         At the hearing, the Government offered the testimony of Fort Wayne Police Department (“FWPD”) Officer Geoffrey Norton (“Officer Norton”); United States Marshal Service Deputy John Simpson (“Deputy Simpson”); United States Marshal Service Deputy Eric Anderson (“Deputy Anderson”); Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) Task Force Officer (“TFO”) Caleb Anderson (“TFO Anderson”); and ATF Special Agent Timothy Worthen (“Special Agent Worthen”) (collectively “the Officers”). The Defendant offered the testimony of Angelia Freeman and himself. The Magistrate Judge's findings of fact are as follows:

Officer Norton testified that, while on patrol on March 21, 2017, he noticed that a driver of a silver Hyundai, later identified as the Defendant, gave him a look with widened eyes.[2] In Officer Norton's experience such a look indicated possible criminal activity, so he began to follow the Defendant. The Defendant subsequently accelerated to approximately 55 to 60 miles per hour in an area with a speed limit of 30 miles an hour, leading Officer Norton to believe that the Defendant was attempting to flee. After observing the Defendant fail to appropriately use his turn signal and fail to come to a complete stop at a stop sign, Officer Norton activated his emergency lights. The Defendant continued to accelerate, at which point Officer Norton also activated his emergency sirens. However, the Defendant continued to flee and eventually stopped his car in an alley and attempted to flee on foot.
Officer Norton pursued the Defendant on foot and eventually called for backup. After backup arrived, other officers handcuffed the Defendant and took him to another officer's car, at which point the Defendant was searched and a small bag of marijuana and a substantial amount of cash were found. FWPD officers also recovered a loaded Glock nine-millimeter pistol near the entrance to the property at which the Defendant was apprehended. The Defendant admitted that he had grabbed the gun prior to exiting his vehicle.
Shortly thereafter, Officer Norton contacted TFO Anderson to inform him that the Defendant had felony convictions and was in possession of a firearm. TFO Anderson interviewed the Defendant who initially indicated that the gun belonged to Ms. Freeman, but he later admitted to possessing the gun and purchasing ammunition. TFO Anderson also observed a tattoo that indicated that the Defendant was affiliated with a gang called GMB. Subsequent phone calls made by the Defendant from the Allen County Jail also indicated that the Defendant had sold narcotics just prior to his arrest, which gave TFO Anderson reason to believe that the Defendant was dealing narcotics.
The Defendant was subsequently indicted for being a felon in possession of a firearm, but he was released from the Allen County Jail on bond before the Government could arrest him pursuant to the federal indictment. TFO Anderson subsequently learned that the Defendant stayed at Ms. Freeman's house and that Ms. Freeman had purchased the firearm at issue in this case. TFO Anderson received permission to apprehend the Defendant, and he advised those that would be participating in the apprehension about the Defendant's criminal history, potential gang affiliation, his propensity to resist arrest and carry firearms, and the potential for Ms. Freeman and her children to be present at the house at the time of apprehension. The Officers determined that these circumstances warranted more caution than usual in apprehending the Defendant.
Armed Officers went to Ms. Freeman's residence on May 2, 2017. A woman, later identified as Ms. Freeman, answered the door when the Officers knocked and announced “U.S. Marshals, police, open the door.” Once the door was opened, the Officers smelled the odor of burnt marijuana. After Ms. Freeman confirmed that the Defendant was in the house, the Officers entered the house, instructing Ms. Freeman to remain outside. Deputies Anderson and Simpson called for the Defendant to surrender for about forty-five seconds to one minute before the Defendant appeared from the back of the house with his hands up and cell phone in one of his hands. Instead of complying with repeated commands to lay on the ground and drop the cell phone, the Defendant argued with the Officers. Eventually, one of the Officers handcuffed the Defendant, and Deputy Simpson began a protective sweep of the house to ensure there were no other individuals in the residence that potentially posed a threat. While climbing the stairs, Deputy Simpson noticed a large sum of money wrapped in rubber bands. Also as part of the initial protective sweep, Deputy Anderson entered the room to the left and found a small child. ...

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