United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, CHIEF JUDGE.
Wicahpe Milk is charged with conspiracy to distribute a
controlled substance and possession of a firearm by a
prohibited person. (Docket 34). Defendant filed a suppression
motion. (Docket 45). The suppression motion was referred to
the magistrate judge for a report and recommendation pursuant
to 28 U.S.C. § 636(b)(1)(B) and the standing order dated
March 9, 2015. Magistrate Judge Daneta Wollmann conducted a
hearing on the motion and issued a report and recommendation
concluding defendant's motion should be denied. (Dockets
55 & 57).
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.
submits legal objections and almost no factual
objections to the magistrate judge's report and
recommendation. (Docket 58). The government filed a response
to defendant's objections. (Docket 61). To the extent any
of defendant's objections can be construed as factual,
the court rejects the objections and adopts the magistrate
judge's findings of fact as the court explains below.
(Docket 57 at pp. 2-4). Defendant's legal objections are:
1. He has standing to challenge the constitutionality of the
car search. (Docket 58 at p. 1).
2. Law enforcement lacked a sufficient basis to stop the car.
Id. at pp. 2-3.
3. The search of the car was not constitutional. Id.
at p. 3.
4. The state court search warrants were not constitutional.
Id. at pp. 3-4.
5. He has standing to challenge the constitutionality of law
enforcement's search of Julissa Poor Bear's cell
phone. Id. at pp. 1-2.
Standing to challenge the car search
magistrate judge determined defendant lacked the standing
necessary to attack the constitutionality of the car search.
(Docket 57 at pp. 6-7). Defendant was in the car's
backseat when it was stopped, he “had no ownership
interest in the [vehicle], and his name did not appear on any
ownership documents.” Id. at pp. 2, 6. He
failed “to prove any facts showing he had a reasonable
expectation of privacy in the [vehicle] and was anything more
than a mere passenger.” Id. at pp. 6-7.
Despite admitting he was a passenger in the vehicle,
defendant claims he has standing because he “had
possession of the vehicle with the consent of the
owners.” (Docket 58 at p. 1).
Amendment rights are personal rights that may not be asserted
vicariously. An individual asserting Fourth Amendment rights
must demonstrate that he personally has an expectation of
privacy in the place searched, and that his expectation is
reasonable.” United States v. Barragan, 379
F.3d 524, 529 (8th Cir. 2004) (internal citation and
quotation marks omitted). “The defendant moving to
suppress bears the burden of proving he had a legitimate
expectation of privacy that was ...