United States District Court, D. South Dakota, Southern Division
ORDER DENYING MOTION TO SUPPRESS
E. SCHREIER UNITED STATES DISTRICT JUDGE
James Joseph Thompson, is charged in a superseding indictment
with possession with intent to distribute methamphetamine, in
violation of 21 U.S.C. § 841(a)(1). Docket 82. Thompson
moves to suppress all physical evidence seized from his
person, his residence, his vehicles, and his storage unit,
which evidence was seized pursuant to two search warrants.
Docket 78. The motion was referred to a United States
magistrate judge for a report and recommendation pursuant to
28 U.S.C. § 636(b)(1)(B).
the evidentiary hearing, the magistrate judge heard testimony
from one law enforcement officer and Thompson. During the
hearing, documents pertaining to the request for a search
warrant and two photographs of Thompson’s residence
were entered into evidence. The magistrate judge issued a
report and recommended denial of Thompson’s motion to
suppress. Docket 105. Thompson objects to the report and
recommendation. Docket 106. For the following reasons, the
report and recommendation is adopted in part.
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."
Id. "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."
United States v. Benitez, 244 F. App’x 64, 66
(8th Cir. 2007). A motion to suppress evidence is a
dispositive motion that requires 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). In conducting de novo review, this court may
"accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1); see also United
States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
to the testimony provided and the exhibits introduced at the
evidentiary hearing, the pertinent facts are as follows:
in 2012, Thompson resided at 1009 North Lowell Avenue in
Sioux Falls, South Dakota. On July 9, 2015, the Sioux Falls
Police Department (SFPD) received an anonymous tip stating
that Thompson was selling methamphetamine and marijuana. The
tipster indicated that Thompson was receiving drugs through
the mail and that Thompson was a dangerous person. The
tipster also provided a physical description of Thompson and
his address, phone number, vehicle make and model, and
vehicle license plate information.
August 10, 2015, SFPD detectives Nick Cook and Terrance Matia
conducted surveillance of Thompson’s residence. They
noticed a gray Honda matching the description provided in the
anonymous tip. They also noticed an A-OK Garbage Service
(A-OK) trash container in front of Thompson’s house,
located in between the garage’s main door and the
Friday, August 14, 2015, Detective Matia contacted A-OK
Garbage Service. A-OK confirmed that it provided garbage
removal service for Thompson and that it removed garbage from
his home on Tuesdays between 6:00 a.m. and 6:30 a.m. A-OK
agreed to arrange a controlled collection of Thompson’s
Tuesday, August 18, 2015, Detective Matia met an A-OK truck
driver near Thompson’s house. At that time,
Thompson’s trash container was located a few feet in
front of the garage door. Detective Matia watched from afar
as the A-OK employee rolled the garbage container down the
driveway and dumped its contents into the collection area of
the truck. The collection area was empty at that time.
Detective Matia retrieved the trash from the truck’s
collection area moments later.
Matia took Thompson’s trash to the Minnehaha County
Sheriff’s Office to conduct the search. The trash
consisted of three white bags, all of which were tied shut at
the top. According to Detective Matia, numerous items
connected to drug activity were found in the garbage bags: a
heat sealed bag, a Zig Zag Cigarillos package, and eight
chemical bottles typically used in marijuana grow sites.
August 18, 2015, Detective Matia received a report issued by
Federal Bureau of Investigation (FBI) Special Agent David
Keith. The report detailed information obtained from an
in-person interview with a confidential Source of Information
(SOI). SOI identified the house located at 1009 North Lowell
Avenue, Sioux Falls, South Dakota, as the home where
"James" lived. SOI informed Special Agent Keith
that he or she had ingested methamphetamine at that
residence, and that James obtained the methamphetamine from a
gallon sized zip lock bag that was apparently full of
methamphetamine. SOI also provided a phone number for James
that was later identified as Thompson’s phone number.
Because SOI had historically provided accurate information,
Special Agent Keith believed SOI was credible here as well.
August 25, 2015, Detective Matia met an A-OK truck driver to
conduct another controlled collection of Thompson’s
trash. Detective Matia supervised the trash pull from afar
while the A-OK employee rolled Thompson’s trash
container down the driveway and dumped the trash into an
empty collection area of the truck. From this collection
area, Detective Matia obtained four white trash bags that
contained the following drug related items: one large heat
sealed bag, one piece of a plastic heat sealed bag that
contained marijuana residue, two empty packages of
marijuana-infused product, ...