United States District Court, D. South Dakota, Western Division
ORDER ADOPTING REPORT AND RECOMMENDATION
JEFFREY L. VIKEN CHIEF JUDGE
Pending before the court is defendant Jason Wellsandt’s motion to suppress evidence. (Docket 12). Pursuant to 28 U.S.C. § 636(b)(1)(B) and the court’s scheduling and case management order (Docket 11), Magistrate Judge Daneta Wollmann held an evidentiary hearing and issued a report and recommendation. (Docket 35). The magistrate judge recommended Mr. Wellsandt’s motion to suppress be denied in its entirety. Id. at p. 13. Mr. Wellsandt filed objections to the report and recommendation. (Docket 40). The government filed a response to Mr. Wellsandt’s objections. (Docket 41).
The court finds the magistrate judge’s report and recommendation is an appropriate application of the law to the facts presented by the parties at the suppression hearing. See United States v. Newton, 259 F.3d 964, 966 (8th Cir. 2001). Defendant’s objections are sustained in part and overruled in part, and the magistrate judge’s report and recommendation is adopted subject to the noted factual amendment.
THE DEFENDANT’S OBJECTIONS
Under the Federal Magistrate Act, 28 U.S.C. § 636(b)(1), if a party files written objections to the magistrate judge’s proposed findings and recommendations, the district court is required to “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id. The court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id.
I. MAGISTRATE JUDGE’S FINDINGS OF FACT
Mr. Wellsandt objects to the magistrate judge’s findings of fact in one respect. Mr. Wellsandt disagrees with the magistrate judge’s determination that the license plate for the 1969 Ford F250 pickup truck was run and identified as belonging to him. See Dockets 35 at p. 4 (report and recommendation); 40 at pp. 1-2 (defendant’s objections).
The court sustains Mr. Wellsandt’s factual objection. The government concedes it “did not identify any testimony specific to [the ownership of the 1969 Ford pickup at] the evidentiary hearing.” (Docket 41 at p. 2). The parties do not dispute Mr. Wellsandt arrived near the 5247 Red Cliff Court residence, the location at which Mr. Wellsandt was known to be residing, driving a 1969 Ford pickup while law enforcement executed the first search warrant on the residence. (Docket 25 at pp. 43:19-44:5; 45:8-10; 45:25-46:18); see also HE 1 at p. 2; 15; 20-23. However, the parties presented no evidence demonstrating Mr. Wellsandt owned the 1969 pickup or that it was licensed in his name at the suppression hearing or in other filings. Special Agent Steven Ardis of the South Dakota Division of Criminal Investigation (“DCI”) in the affidavit in support of the second search warrant, which included the 1969 Ford pickup truck, averred Mr. Wellsandt drove the pickup to the location, but swore “the 1969 Ford F250 pickup was not registered to [Mr. Wellsandt], but rather was registered to Diane Hillestad and Lois Gribbin. . . [of] Rapid City, South Dakota.” (HE 2 at p. 9). Special Agent Ardis went on to explain that Ms. Huggins, who was living with Mr. Wellsandt, informed him “the 1969 Ford F250 is a family vehicle given on behalf of a deceased relative, but she knows and has witnessed [Mr.] Wellsandt have possession of and drive the vehicle for approximately one year.” Id.
The magistrate judge’s finding that “the vehicle license plate was run and was identified as belonging to Mr. Wellsandt” is not supported by the record and Mr. Wellsandt’s objection is sustained. (Docket 35 at p. 4). However, this factual amendment does not invalidate the magistrate judge’s legal analysis.
II. MAGISTRATE JUDGE’S LEGAL CONCLUSIONS
Mr. Wellsandt raises four objections to the magistrate judge’s legal conclusions.
1. Mr. Wellsandt objects to the magistrate judge’s determination that the black nylon bag was not located within the curtilage of the trailer, but instead in an open field;
2. Mr. Wellsandt objects to the magistrate judge’s determination that he had no objectively reasonable expectation of ...