ORDER DENYING MOTION TO SUPPRESS
KAREN E. SCHREIER, District Judge.
Defendant, Brandon Gustav McGuire, is charged with possession of firearms by a prohibited person in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). McGuire moves to suppress all evidence obtained by authorities during two separate seizures of his trash, which occurred on October 16 and October 23, 2012, and during the search of his home on or about October 30, 2012. The motion was referred to United States Magistrate Judge John Simko for a report and recommendation.
On September 12, 2013, an evidentiary hearing was held before Magistrate Judge Simko. Four witnesses testified during the hearing: ATF Special Agent Emmet Warkenthien, Sioux Falls Police Detective Terry Matia, Sioux Falls Police Officer John Duprey, and Michael Parham. Nineteen exhibits were received into evidence. Based upon the testimony and exhibits received at the hearing, Magistrate Judge Simko issued a report and recommendation recommending denial of the motion to suppress because (1) there was probable cause to issue a search warrant even after the evidence obtained from the trash pulls was excluded from the supporting affidavit; (2) McGuire did not have a reasonable expectation of privacy in his trash; (3) the trash cans were not within the curtilage of McGuire's home; and (4) the Leon good faith exception applies. McGuire objects to the report and recommendation. For the following reasons, the court adopts the report and recommendation of the magistrate judge as supplemented by this opinion and denies McGuire's motion to suppress.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(C), the court should make a de novo review "of those portions of the [magistrate judge's] report or specified proposed findings or recommendations to which objection is made." See also Thomas v. Arn , 474 U.S. 140 (1985). The court has conducted a de novo review.
The pertinent facts are as follows:
On October 7, 2012, an anonymous caller contacted Crime Stoppers and stated McGuire was selling methamphetamine out of his residence, which is one side of a duplex. The caller further stated that drugs are usually kept on top of the refrigerator. Upon receiving this information, Detective Matia checked the Sioux Falls police department records and confirmed McGuire lived at the residence indicated by the caller.
On October 8, 2012, Detective Matia was contacted by McGuire's landlord, Michael Parham. Parham indicated that he was the landlord of the duplex where McGuire resides and that he had concerns voiced to him by people living in the neighborhood that McGuire was selling narcotics out of the residence. Parham also stated that while he was conducting maintenance in the residence he had seen marijuana on top of McGuire's refrigerator. During this conversation, Parham told Detective Matia that he paid for the trash service at the house, which day the trash service picked up the trash, and that he would permit the police to perform trash pulls.
On October16 and 23, 2012, police officers performed two separate warrantless trash pulls at the duplex. Although the duplex is normally occupied by two separate tenants who share access to the trash cans, one part of the duplex was temporarily vacant at the time of the trash pulls. The trash cans were located next to the attached garage, roughly twenty feet from any public sidewalk, street, or alley. In conducting the trash pulls, the officers walked across the neighbor's property and reached onto Parham's property in order to collect the garbage bags out of the trash cans. The officers found documents belonging to McGuire and various drug paraphernalia items in the trash.
On October 30, 2012, Detective Matia prepared an affidavit for a search warrant. The affidavit included the information obtained from the anonymous callers and Parham and identified the evidence obtained during the two trash pulls. A state judge found probable cause existed and granted the warrant. The warrant was executed that same day; drugs, drug paraphernalia, and firearms were found in the residence.
In May of 2013, McGuire was indicted on federal firearms charges.
McGuire argues that all evidence obtained as a result of the two trash pulls and the subsequent search of his residence should be suppressed because the two trash pulls were illegal searches and seizures. And because the two trash pulls were illegal searches and seizures, McGuire claims the probable cause determination by the state judge was based on an affidavit that omitted essential facts. Had the additional facts been included, McGuire submits probable cause for the search of his residence did not exist. Therefore, ...