Opinion
No. CR08-0058-LRR.
April 14, 2009
ORDER
The matter before the court is the January 26, 2009 report and recommendation (docket no. 24) of United States Magistrate Judge Jon S. Scoles. Under 28 U.S.C. § 636(b), Judge Scoles recommended that the defendant's motion to suppress (docket no. 11) be denied. On February 9, 2009, the defendant filed objections (docket no. 29) to the report and recommendation regarding the motion to suppress.
"A district judge may refer to a magistrate judge for recommendation . . . a motion to suppress evidence. . . ." Fed.R.Crim.P. 59(b)(1). "The magistrate judge must promptly conduct the required proceedings." Id. "The magistrate judge must enter on the record a recommendation for disposing of the matter, including any proposed findings of fact." Id. "Within 10 days after being served with a copy of the recommended disposition, . . . a party may serve and file specific written objections to the proposed findings and recommendations." Fed.R.Crim.P. 59(b)(2). "Failure to object . . . waives a party's right to review." Id.; see, e.g., United States v. Flores, 257 F. App'x. 164, 165-66 (11th Cir. 2007) (per curiam) (explaining that a failure to object waives a constitutional claim).
When a party properly objects to a magistrate judge's report and recommendation, the court must conduct a de novo determination of the portions of the report, findings or recommendations to which objection is made. 28 U.S.C. § 636(b)(1); see also United States v. Uscanga-Ramirez, 475 F.3d 1024, 1027 (8th Cir. 2007) (stating that de novo review is required); United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003) (citing 28 U.S.C. § 636(b)(1)); Fed.R.Crim.P. 59(b)(3) (stating that "[t]he district judge must consider de novo any objection to the magistrate judge's recommendation"). The 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); Fed.R.Crim.P. 59(b)(3). The court "may also receive further evidence or recommit the matter to the magistrate judge with instructions." 28 U.S.C. § 636(b)(1); Fed.R.Crim.P. 59(b)(3).
The court considered the entire record, which includes but is not limited to the motion to suppress (docket no. 11), the government's resistance (docket no. 17), the recording of the 911 call, the police car video, the transcript of the hearing held on January 16, 2009 (docket no. 31), the report and recommendation and the objections. Having conducted the required de novo review of the objected to portions of the report and recommendation, the court deems it appropriate to overrule the defendant's objections. The report and recommendation contains a very thorough and cogent analysis of the facts and applicable law. The court concludes that Judge Scoles' recommended disposition of the motion to suppress should be upheld or affirmed, as it is fully supported by the factual record and controlling legal authorities.
IT IS THEREFORE ORDERED:
1) The defendant's objections (docket no. 29) are OVERRULED;
2) The report and recommendation (docket no. 24) is ADOPTED; and
3) The defendant's motion to suppress (docket no. 11) is DENIED.