The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER ADOPTING REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO SUPPRESS
Defendant, Harold George Voice, is charged with one count of failure to register as a sex offender in violation of 18 U.S.C. § 2250(a). Docket 1. Voice moves to suppress the luggage and items inside the luggage that were searched and seized by Fort Thompson Chief of Police Scott Shields on October 3, 2008. Docket 13.*fn1
The court referred the motion to suppress to the magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate judge recommends that this court deny Voice's motion to suppress. Voice objects to factual findings and legal conclusions in the magistrate judge's report and recommendation. The government has not responded to Voice's objections.
The court must make a de novo review "of those portions of the [Magistrate's] report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1); see also United States v. Lothridge, 324 F.3d 599 (8th Cir. 2003); Jones v. Pillow, 47 F.3d 251, 253 (8th Cir. 1995). 28 U.S.C. § 636(b)(1) requires that when a party objects to the report and recommendation of a magistrate judge concerning a dispositive matter, "[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." Id.; see also Fed. R. Civ. P. 72(b). After a de novo review of the magistrate judge's report and recommendation and a review of the record, the court adopts the report and recommendation as supplemented below.
Voice objects to certain factual findings made by the magistrate judge.
A. Involvement of St. John
Voice asserts that the magistrate judge's finding that Priscilla St. John pointed to the comfort station from her backyard and told Chief Shields that there may be bags in the building that belonged to Voice is erroneous. Voice argues that Chief Shields' written report and motion hearing testimony illustrate that instead of simply pointing to the comfort station and stating there may be bags there, St. John showed Chief Shields where Voice had been sleeping and where he was keeping his luggage inside the building.
During the motion hearing, Chief Shields testified that he arrested Voice on October 2, 2008, and that he spoke with Ronnie Wounded Knee and St. John on the following day, October 3, 2008. Docket 27 at 36-37. On direct examination, Chief Shields testified that both Wounded Knee and St. John informed him "that [Voice] frequented their residence and they believed that he was sleeping behind an abandoned building to the rear of their residence." Id. at 15. Chief Shields also testified that "St. John just pointed to the building" behind her house. Id. When asked if St. John went with him to the area to specifically show him which building she was referring to, Chief Shields responded that "[i]t was right next to it" and that "[s]he pointed to it." Id. at 19. When asked whether St. John got close enough to the building to show him the specific area where Voice was sleeping, he responded that St. John "told [him Voice] was sleeping behind the building." Id. at 22.
But on cross-examination, Chief Shields admitted that his written report stated that St. John took him to show him where Voice had been sleeping and also showed him where Voice was keeping his luggage inside the building. He further admitted that before he even unzipped the bag, St. John had told him that the duffle bags were Voice's luggage. Chief Shields stated that he thought the bag may have been evidence of a burglary despite the fact that St. John had already told him that the bag belonged to Voice because the bags had the names "Darla V." and "Traversie" marked on them. Id. at 38-42.
Chief Shields testified both that St. John pointed to the building to indicate where Voice was sleeping and may have kept luggage and that St. John took him to show him where Voice had been sleeping and where Voice kept his luggage. Accordingly, based upon Chief Shields' testimony, the court finds that St. John both pointed to the building and took Chief Shields to the building. This fact does not affect the legal ...