Opinion
2:07-cr-118-FtM-29DNF.
October 28, 2008
OPINION AND ORDER
On October 8, 2008, United States Magistrate Judge Douglas N. Frazier submitted a Report and Recommendation (Doc. #32) to the Court recommending that Defendant's Motion to Suppress Identification Evidence (Doc. #19) be denied. Defendant filed Objections to Report and Recommendation (Doc. #33) on October 23, 2008.
I.
After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject or modify the magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). This requires that the district judge "give fresh consideration to those issues to which specific objection has been made by a party." Jeffrey S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990) (quoting H.R. 1609, 94th Cong., § 2 (1976)). The district judge reviews legal conclusions de novo, even in the absence of an objection.See Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994).
II.
Defendant objects to the finding in the Report and Recommendation that his initial stop and subsequent detention were lawful. The Court concurs with the Report and Recommendation. A violation of Fla. Stat. § 316.2065(8) is a lawful basis for a stop. State v. Wilson, 725 So. 2d 1143 (Fla. 2d DCA 1998); State v. Banfield, 614 So. 2d 551, 552 (Fla. 2d DCA 1993). Defendant was lawfully stopped when the officer observed this violation in her presence. The subsequent detention complied with the dictates of Terry v. Ohio, 392 U.S. 1 (1968) both as to reasonable articulable suspicion and duration. Therefore, this objection is overruled.
Defendant also objects to the finding in the Report and Recommendation that the identification procedures used did not violate his due process rights. The Report and Recommendation found that defendant had not established that the identification procedure was impermissibly suggestive or that the identification was unreliable under the totality of the circumstances. Defendant objects, arguing that the show-up was unnecessarily and impermissibly suggestive and that the identifications were not reliable. After reviewing the record, including reading the transcript of the evidentiary hearing (Doc. #31), the Court fully agrees with the findings of fact and conclusions of law made by the magistrate judge. Accordingly, the Court will adopt the Report and Recommendation and will deny the motion to suppress.
Accordingly, it is now
ORDERED:
1. The Magistrate Judge's Report and Recommendation (Doc. #32) is accepted and adopted, and it is specifically incorporated into this Opinion and Order.
2. Defendant's Motion to Suppress Identification Evidence (Doc. #19) is DENIED. DONE AND ORDERED at Fort Myers, Florida.