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United States v. Milk

United States District Court, D. South Dakota, Western Division

January 29, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
WICAHPE MILK, Defendant.

          ORDER

          JEFFREY L. VIKEN, CHIEF JUDGE.

         INTRODUCTION

         Defendant 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).

         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.

         Defendant submits legal objections and almost no factual objections[1] 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.

         ANALYSIS

         1. Standing to challenge the car search

         The 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).

         “Fourth 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 ...


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