United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
A. BRADY UNITED STATES DISTRICT COURT JUDGE.
matter is before the Court on Defendant's multiple
filings (ECF Nos. 134, 135, 137) objecting to Magistrate
Judge Susan Collins' Report and Recommendation (ECF No.
132) issued on October 28, 2019, which recommended that this
Court deny Defendant's Motion to Suppress Physical
Evidence. (ECF No. 128). The Government filed its Notice of
No Objection to the Magistrate Judge's Findings, Report,
and Recommendation and Response to Defendant's Objections
(ECF No. 138) on December 5, 2019, and Defendant filed his
reply (ECF No. 139) on December 11, 2019. Defendant's
objections are now ripe for determination.
basic facts of this case are not in dispute. On May 31, 2017,
United States Custom and Border Protection
(“CBP”) seized a parcel from an address in Hong
Kong containing approximately 100 grams of fentanyl
analogues. CBP had identified a second package from the same
address, and with the same declared contents and value, being
shipped to Defendant at 4218 Encino Drive, Fort Wayne, IN
46816 (the “Target Package”).
12, 2017, CBP searched the Target Package addressed to
Defendant and discovered a clear plastic bag containing
approximately 1 kilogram of 5F-ADB, a Schedule I controlled
substance used to manufacture synthetic marijuana. When
applied to an organic compound, that quantity of 5F-ADB could
produce approximately 100 kilograms (220 pounds) of synthetic
marijuana. While many substances can be used to make
synthetic marijuana, 5F-ADB is one of the most potent.
was not the only international package sent to Defendant.
Defendant received approximately 58 international packages
from 2015 through June 2017. Most of those shipments were
sent to the Encino Drive address, but at least one was sent
to Defendant's mother's home. Although the existence
of these packages is noted in the affidavit attached to the
Application for Search Warrant (the “Affidavit”),
the Affidavit contains no information regarding the sender of
the packages, descriptions of the packages, or lists of their
to the Affidavit, the plan was to deliver the Target Package
containing the 5F-ADB to Defendant and then execute the
search warrant. However, at some point between the issuance
of the warrant and its execution, the decision was made to
remove the controlled substance from the Target Package and
replace it with a sham substance. The application for the
search warrant was never updated with this information. In
addition, the return on the search warrant indicated that the
5F-ADB was recovered from the Encino Drive residence, which
was necessarily false given that the controlled substance was
removed prior to delivery.
Standard of Review
reviewing an objection to a magistrate judge's
recommendation, the Court is obliged to analyze the
recommendation de novo. 28 U.S.C. §
636(b)(1)(C). Thus, the Court can “accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate.” Id. In other words,
the Court's de novo review of Magistrate
Collins' Report and Recommendation is not limited to her
legal analysis alone; rather, the Court may also review her
factual findings, and accept, reject, or modify those
findings as it sees fit based upon the evidence. Id.
objections, absent specific legal authority, do not invoke
the district court's obligation to perform a de novo
review of a magistrate judge's decision: “De novo
review of a magistrate judge's recommendation is required
only for those portions of the recommendation for which
particularized objections, accompanied by legal authority and
argument in support of the objections, are made.”
Banta Corp. v. Hunter Publ'g Ltd., 915 F.Supp.
80, 81 (E.D. Wis. 1995). “[W]ithout specific reference
to portions of the magistrate's decision and legal
discussion on the objected portion, the district court's
duty to make a de novo determination does not arise. The
general statements that a party ‘objects' and
‘incorporates all arguments previously made to the
magistrate' will not suffice.” United States v.
Molinaro, 683 F.Supp. 205, 211 (E.D. Wis. 1988); see
also Thomas v. Arn, 474 U.S. 140, 149 (1985) (holding
that “[s]ection 636(b)(1)(C) . . . does not on its face
require any review at all . . . of any issue that is not the
subject of an objection”).
Reliance on Information Outside the Affidavit
on United States v. Koerth, 312 F.3d 862 (7th Cir.
2002), Defendant first objects to the Magistrate's
reliance on information from outside of the Affidavit,
specifically prior rulings from this Court on Defendant's
previous motions to suppress, in determining that Defendant
was not entitled to a Franks hearing. Defendant
asserts that the Magistrate was bound to look “only to
the Defendant's motion and the affidavit as filed with