United States District Court, D. South Dakota, Western Division
ORDER ON MOTION TO DISMISS, MOTION FOR BILL OF PARTICULARS, AND MOTION TO SUPPRESS
KAREN E. SCHREIER, District Judge.
NATURE AND PROCEDURE OF THE CASE
Defendant, Susan Marie Schrader, is charged with conspiracy to distribute a controlled substance in violation of 21 U.S.C. §§ 846, 841(a), and 841(b)(1)(C). Schrader moved to dismiss the indictment based on the statute of limitations and vagueness, and alternatively requested a bill of particulars. Docket 40. She separately moved to suppress her arrest and all evidence obtained directly or indirectly from a search of her home and office. Docket 42. The motions were referred to United States Magistrate Judge John Simko for a report and recommendation.
Initially, an evidentiary hearing was scheduled on Schrader's motion to suppress. The United States's response to the motion, however, indicated that the government did not seize any evidence or take any statements from Schrader on the date in question, and consequently did not intend to introduce any evidence obtained directly or indirectly from the allegedly unconstitutional search. Docket 46. Subsequently, the evidentiary hearing was canceled and on June 24, 2014, Magistrate Judge Simko issued his report and recommendation denying as moot Schrader's motion to suppress. Docket 49. On July 1, 2014, Magistrate Judge Simko issued a second report and recommendation denying Schrader's motion to dismiss and granting in part her request for a bill of particulars. Docket 51. Schrader did not object to either report and recommendation. The United States objected to the second report and recommendation to the extent it granted Schrader's request for a bill of particulars. For the following reasons, the court adopts the report and recommendation of Magistrate Judge Simko on Schrader's motion to suppress. Additionally, the court adopts Magistrate Judge Simko's report and recommendation denying Schrader's motion to dismiss the indictment, but rejects the report and recommendation's determination with respect to Schrader's request for a bill of particulars.
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." Accord United States v. Benitez, 244 F.Appx. 64, 66 (8th Cir. 2007) ("If a party objects to the magistrate judge's report and recommendation with respect to a dispositive matter, the district court judge must conduct a de novo review of the disputed portion of the magistrate judge's report and recommendation."). Motions to suppress evidence and motions to dismiss an indictment are dispositive motions that require de novo review. Fed. R. Crim. P. 59(b)(1), (3). De novo review in the context of reviewing a magistrate judge's report and recommendation does not require a new evidentiary hearing and only means a district court "give[s] fresh consideration to those issues to which specific objection has been made by a party." United States v. Raddatz, 447 U.S. 667, 674-75 (1980) (internal quotations and citations omitted). The court has conducted a de novo review.
The pertinent facts are as follows:
Schrader was indicted on May 20, 2014, as part of a four-count indictment. Count I of the indictment alleged that:
Beginning at a time unknown but no later than on or about 2005, and continuing to on or about the date of this Indictment, in the District of South Dakota and elsewhere, [Schrader and others] knowingly and intentionally, combined, conspired, confederated and agreed with persons known and unknown to the Grand Jury, to knowingly and intentionally distribute and to possess with the intent to distribute a mixture or substance containing a detectable amount of Cocaine, its salts, optical and geometric isomers, and salts of isomers, a Schedule II controlled substance, all in violation of 21 U.S.C. §§ 846, 841(a), 841(b)(1)(C).
Docket 1 at 1-2. On May 29, 2014, Schrader was arrested at her home pursuant to an arrest warrant. See Docket 36 (arrest warrant).
I. Motion to Suppress
Schrader requested suppression of her arrest and all evidence "obtained directly or indirectly from the illegal search and seizure of [her] home and office on her property in Pine Ridge, South Dakota on or about the 29th day of May, 2014." The United States responded that Schrader was arrested pursuant to a valid warrant, and that because no evidence was seized on May 29, 2014, the prosecution does not intend to introduce any evidence obtained directly or indirectly from the arrest and subsequent search. Docket 46. Based on that representation from the United States, Magistrate Judge Simko recommended that Schrader's motion to suppress be denied as moot. Schrader did not object to the recommendation. After conducting a de novo review, the court adopts the recommendation of Magistrate Judge Simko and denies the motion to suppress as moot. See United States v. Mitchell, No. 08-CR-46-LRR, 2009 WL 36605, at *1 (N.D. Iowa Jan. 5, 2009) ("[W]hen the government agrees not to offer evidence which is the subject of the motion to suppress, the common practice ...