United States v. Waters

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE.

         INTRODUCTION

         A grand jury indicted defendant Lester Waters, Jr., in a six-count indictment. (Docket 19). Mr. Waters is charged in counts I and IV with assault with a dangerous weapon in violation of 18 U.S.C. §§ 113(a)(3) and 1153; in counts II and V with assault resulting in serious bodily injury in violation of 18 U.S.C. §§ 113(a)(6) and 1153; and in counts III and VI with discharging, brandishing or possessing a firearm during and in relation to a crime of violence in violation 18 U.S.C. § 924(c)(1)(A)(iii). Id. In counts I and II the alleged victim is Elgie Iron Bear and in counts IV and V the alleged victim is Charles Janis. Id.

         Pending before the court is defendant's motion to suppress his statements made to law enforcement on January 25, 2018. (Dockets 61 & 76 at p. 4:6-11). Mr. Waters “do[es] not seek suppression of [a] January 29[], [2018, ] statement at the Pine Ridge Adult Offenders Facility.” (Docket 76 at p. 4:8-11). The United States opposes defendant's motion. (Docket 83).

         Defendant's suppression motion was referred to Magistrate Judge Daneta Wollmann for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and the court's March 9, 2015, standing order. The magistrate judge conducted an evidentiary hearing on November 20, 2018, at which two witnesses testified and four exhibits were received into evidence. (Dockets 74 & 76). The parties submitted post-hearing briefing. (Dockets 79 & 83). The magistrate judge issued a report and recommendation (“R&R”) concluding defendant's motion should be granted in part and denied in part. (Docket 87 at p. 1). Defendant timely filed objections to the R&R. (Docket 91). The government filed a response to defendant's objections. (Docket 92).

         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.

         The court completed a de novo review of those portions of the R&R to which objections were filed. For the reasons stated below, the court finds the R&R is an appropriate application of the law to the facts presented by the parties at the suppression hearing. For the reasons stated below, the defendant's objections are overruled and the R&R is adopted in its entirety. The court grants in part and denies in part defendant's suppression motion.

         DEFENDANT'S OBJECTIONS

         Defendant's objections to the R&R are summarized as follow:

1. Mr. Waters objects generally to all factual findings and legal conclusions made by the magistrate judge.

2. Mr. Waters objects to the magistrate judge's finding that Officer Hunter did not deceive the defendant.

3. Mr. Waters should have been advised of his Miranda^[1] rights prior to being subjected to interrogation by Officer Hunter.

4. Mr. Waters objects to the magistrate judge's finding his statements were admissible under the public safety exception to Miranda.

(Docket 91). “For the foregoing reasons, ” Mr. Waters argues “the district court should not accept the magistrate court's [R&R] . . . and should grant Defendant's Motion to Suppress.” Id. at p. 3.

         Each of defendant's objections will ...