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United States v. Livingston

United States District Court, D. Arizona

May 16, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
ANDREW SCOTT LIVINGSTON, TERESA LYNN SCHNABEL, Defendants.

ORDER

CINDY K. JORGENSON, District Judge.

On April 18, 2014, Magistrate Judge Leslie A. Bowman issued a Report and Recommendation (Doc. 60) in which she recommended that the Motion to Suppress (Doc. 33) filed by Andrew Scott Livingston ("Livingston") and Teresa Lynn Schnabel ("Schnabel") be denied. The Report and Recommendation ("R & R") notified the parties that they had fourteen days from the date of being served with the copy of the R & R to serve and file any objections. Livingston and Schnabel have each filed objections to the R & R. (Docs. and 64).[1] The government has filed a response. (Doc. 72).

I. Standard of Review

The Court has reviewed the Motion to Suppress (Doc. 33), the response (Doc. 39), the Report and Recommendation (Doc. 60), the transcript of the hearing held before the magistrate judge (Doc. 63), the objections (Doc. 62 and 64), and the response (Doc. 72). The standard of review that is applied to a magistrate judge's report and recommendation is dependent upon whether a party files objections - the Court need not review portions of a report to which a party does not object. Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472-73, 88 L.Ed.2d 435 (1985). However, the Court must "determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instruction." Fed.R.Civ.P. 72(b)(3); see also 288 U.S.C. ยง 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.").

II. Objections to Fact Statement of Magistrate Judge

Defendants object to the magistrate judge's statement that Hector Sanchez ("Sanchez") is a "known scout for drug and alien smugglers." (R & R at p. 3, line 1.) Livingston asserts Agent Cordice testified that Sanchez had never been detained, arrested or charged with any offense relating to his alleged activities and that there were no law enforcement reports written that had documented Sanchez as involved in scouting for aliens or drug load drivers. Rather, Defendants argue Cordice's belief was based solely on informal talk among Border Patrol agents. The relevant testimony is as follows:

Q [Mr. Fink]. Okay. Now, let's talk about Hector Sanchez. You said that Hector Sanchez is either known or believed to be involved in drug trafficking, a scout. Is that correct?
A [Agent Cordice]. Yes, sir.
Q. And what do you base that on specifically? Are there any intelligence reports or anything like that that you base that on?
A. None that I can put my hand on. It's just agent word of mouth, pointing it out on the field training unit and everything. We have encountered him before. I've actually pulled him over before.
Q. That's why I'm trying to be specific. At that time on that day when you observed Hector Sanchez, could you recall, are there any reports that you ever reviewed that concerned Hector Sanchez and drug trafficking?
A. No.
Q. Has Hector Sanchez ever been to your knowledge prosecuted for drug trafficking?
A. To my knowledge, no.
Q. Has he ever been - has he ever been arrested for drug trafficking?
A. To my knowledge, no.
Q. And so never been arrested, never been charged, there's no reports about him. Has he ever been - has he ever been stopped and found to be in possession of drugs?
A. No, sir.
Q. Has anyone ever been arrested to your knowledge with drugs who specifically identified him as a scout?
A. To my knowledge, no.
Q. Have there been any informants - I'm not asking anyone's name. Have there ever been any informants that have identified him ...

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