Opinion
CR-09-017-TUC-DCB.
July 7, 2009
ORDER
This matter was referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the local rules of practice of this Court for hearing and a Report and Recommendation (R R) on the Defendant's Motion to Suppress Physical Evidence and Statements. Before the Court is the Magistrate Judge's Report and Recommendation on the Defendant's Motion to Suppress. The Magistrate Judge recommends to the Court that the Motion to Suppress should be denied. The Defendant filed Objections to this Recommendation, the Government filed a Response and Defendant filed a Reply.
SUMMARY
Defendant, Pauline Gallego Hong, filed a Motion to Suppress Physical Evidence and Statements based on the Fourth and Fifth Amendments of the United States Constitution. An evidentiary hearing was conducted by the Magistrate Judge on April 8, 2009 and April 20, 2009. Defendant contended that Agents Terry and Reilly stopped the Defendant's vehicle without reasonable suspicion, in violation of the Defendant's Fourth Amendment rights, and that Defendant's statements made following her arrest were the result of an illegal stop. As such, Defendant asserted that both the marijuana and the statements should be suppressed.
DEFENDANT'S OBJECTIONS
The sole basis for the Defendant's Objections to the R R is that the Magistrate Judge incorrectly assessed the credibility of the witnesses during the suppression hearing and that the record is devoid of support for the Magistrate Judge's credibility assessments. Defendant goes on to assert that this Court must conduct "another evidentiary hearing in order to [re]consider the credibility of the Government's witnesses." (Sic.) (Objection at 1.)
STANDARD OF REVIEW
When objection is made to the findings and recommendation of a magistrate judge, the district court must conduct a de novo review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).
DISCUSSION
Available to the Court in conducting this de novo review is the transcript of the motion to suppress hearing. The Court has read the evidentiary hearing transcript. In doing so, the Court has discovered no basis for second-guessing the Magistrate Judge's assessment of credibility such that it will agree to conduct a second evidentiary hearing. The Court also disagrees with the Defendant's position that "[t]he Magistrate simply chose to believe the Government witnesses and disregarded the fact that the Agents' reports were completely devoid of any mention of the most crucial facts which would demonstrate that they were telling the truth." (Objection at 2.)
Defendant argues that the essence of the credibility assessment issue hinges on the Agents' failure to mark with an identifying case number the photographs of marijuana bundles found in the vehicle at the scene. (Objection at 4.) "The Government introduced several photographs of what purports to be the marijuana confiscated from the Defendant's vehicle; however, none of those photographs bear a case number which would identify the bundles as coming from the Defendant's vehicle." (Objection at 4.) In fact, the Magistrate Judge specifically did not attempt to resolve the possible evidentiary chain of custody issue presented stating that "The government did not provide testimony showing that the 19 bundles of marijuana received by Agent Jenkins were the bundles seized from the Defendant's vehicle. Because there was insufficient chain of custody evidence, the pictures and Agent Jenkins' testimony were not considered in reaching the recommendations in this report." (R R at 6 n. 6.) Further, Defendant faults the "failure of the agents to mention in their report the illumination of the Defendant's vehicle." (Objection at 5.) Defendant asserts that information was not disclosed to the Defendant that a flashlight was used to discover the bundles of marijuana until after the Motion to Suppress was filed. Because of these infirmities, the Defendant asserts that the only conclusion the Magistrate Judge could have made was that the Agents stopped Defendant's vehicle based "upon nothing more than a hunch and discovered contraband after the Defendant was stopped." (Objection at 5-6.)
The Government responds that the Magistrate Judge's explanation of her credibility findings is sufficient for this Court to adopt the R R without a second evidentiary hearing, as follows:
Defendant challenged the agents' credibility on the grounds that the agents failed to include certain important details in their reports, including the fact of tandem driving of the vehicles, the use of a flashlight and alley lights, and the failure to photograph the marijuana in place in the Tahoe. Despite these omissions, the Court finds the agents credible. Although the agents could have, and perhaps should have, prepared more complete reports, and photographed the marijuana in the vehicle, the fact that the reports failed to mention certain details does not suggest that the agents have falsely testified regarding those details. As previously stated, the agents' offered consistent testimony. Agents Thornbloom and Terry, who prepared reports in this case, both admitted that they were fatigued when they prepared their reports and did not provide as complete a description as they should have, thereby offering a credible and reasonable explanation for the reports' lack of details. In addition, each is a relatively new agent. Furthermore, the radio transmissions admitted into evidence included Agent Thornbloom's real-time description of the tandem driving. Finally, the government produced evidence demonstrating that Agent Reilly was assigned an experimental high-beam flashlight at the time of Defendants' arrest, which supports his testimony that he used this flashlight to look into Defendant's vehicle.
(R R at 9 n. 7.)
This explanation coupled with the corroborating real-time radio transmissions are sufficient for this Court to determine that a second evidentiary hearing is unnecessary under the circumstances of this case. This Court will adopt the recommendation of the Magistrate Judge. United States v. Ridgway, 300 F.3d 1153, 1156 (9th Cir. 2002) (acceptance of the credibility determination without a second evidentiary hearing does not violate due process).
CONCLUSION
Accordingly, after conducting a de novo review of the record,
IT IS ORDERED that the Court ADOPTS the Report and Recommendation (Doc. No. 42) in its entirety. The Objections (Doc. No. 48) raised by the Defendant are OVERRULED.
IT IS FURTHER ORDERED that Defendant's Motion To Suppress Physical Evidence and Statements (Doc. No. 16) is DENIED. A jury trial is currently set for July 28, 2009.