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United States v. Miller

United States District Court, Ninth Circuit

August 7, 2013

United States of America, Plaintiff,
v.
1) Earnest Lee Miller, Defendant.

ORDER

JENNIFER G. ZIPPS, District Judge.

On June 20, 2013, Magistrate Judge Jacqueline Rateau issued a Report and Recommendation ("R&R") (Doc. 318) in which she recommended that Defendant's Motion to Suppress (Doc. 248) be denied. The R&R provided that any party could file written objections within fourteen (14) days after being served with a copy of the R & R. On July 5, 2013, Defendant filed an Objection to the R&R. (Doc. 321.) The government filed a response to Defendant's Objection on July 15, 2013. (Doc. 322.) For the reasons stated herein, the Court adopts the R&R.

STANDARD OF REVIEW

The Court reviews de novo the objected-to portions of the R&R. 28 U.S.C. ยง 636(b)(1); Fed.R.Civ.P. 72(b). The Court reviews for clear error the unobjected-to portions of the R&R. Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); see also Conley v. Crabtree, 14 F.Supp.2d 1203, 1204 (D. Or. 1998).

FACTUAL BACKGROUND

The factual background contained in Magistrate Rateau's R&R (Doc. 318) is adopted by reference herein. To the extent Defendant's Objection alleges erroneous factual findings by the Magistrate, those objections are addressed below.

ANALYSIS

Defendant objects to the Magistrate's R&R on two grounds: (1) Defendant contends that the Motion to Suppress should be granted because there was no valid warrant for the search in this case and the search exceeded the scope of the warrant that was issued; and (2) the Motion to Suppress should be granted because the search warrant was not properly served on Mr. Miller, as required by law.

1. Validity and Scope of the Warrant

Defendant contends that the search warrant relied on during the search of his residence was not valid because Attachment B of the warrant lists Defendant's address as "36335 South Universal Ranch Road, " when Defendant in fact resides at - and agents conducted their search at - "36335 South Arivaca Ranch Road."

The Fourth Amendment states that "no Warrants shall issue, but upon probable cause, ... and particularly describing the place to be searched...." Not every defect in a search warrant compels suppression of evidence seized pursuant to the warrant. See United States v. McCain, 677 F.2d 657, 660 (8th Cir. 1982). The test for determining the sufficiency of the warrant description is whether the place to be searched is described with sufficient particularity to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched. See United States v. Turner, 770 F.2d 1508, 1510 (9th Cir. 1985).

The warrant at issue in this case listed Defendant's correct address in the caption and in the list of items to be seized. (Doc. 248-1, pgs. 1, 4.) However, Attachment B, which describes the address to be searched, states:

The property to be searched is located at 36335 S. Universal Ranch Road, Arivaca, Arizona is approximately 2.2 acres and contains a main residence that is identified as a doublewide trailer with a red brick adobe add on building, a barn structure and several garages. There are additional single wide trailers that are currently being rented to unknown residents, these trailers will not be included in the search warrant at this time.

Agent Slagle, who prepared the warrant application with input from other agents, testified that he inadvertently substituted "Universal Ranch" for "Arivaca Ranch" and that the two roads intersect near Defendant's residence. (TR 5/28/13, pgs. 15-16.) Attachment B also ...


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