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United States v. Wilson

United States District Court, D. Arizona

December 2, 2016

United States of America, Plaintiff,
v.
Chester Wayne Wilson, Defendant.

          ORDER

          Honorable Cindy K. Jorgenson United States District Judge.

         On November 19, 2015, Drug Enforcement Agency (DEA) agents arrested Defendant for possession of methamphetamine for distribution. The arrest was made at the FedEx Shipping facility located at 3601 E. Columbia Street, Tucson, Arizona, and the Agents were there to intercept a package containing methamphetamine that Florida agents said was intended to be mailed by Defendant to Panama City, Florida that afternoon. On December 16, 2015, Defendant was indicted for Possession With Intent to Distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(B)(viii). (Doc. 8).

         Defendant filed a Motion to Suppress Statements and a Motion to Suppress Fruits of Illegal Seizure. (Docs. 29, 30). Evidence and argument were heard on July 18, 2016, and August 17 and 19, 2016 before Magistrate Judge Lynette C. Kimmins. On September 7, 2016, Magistrate Judge Kimmins issued a Report and Recommendation (R & R), recommending denial of the Motions. (Doc. 69.) The R & R advised that pursuant to Federal Rule of Criminal Procedure 59(b)(2), any party may serve and file written objections within 14 days of being served with a copy of the R & R. (Id.) No objections were filed, and on October 7, 2016, this Court adopted the R & R and denied Defendant's Motions. (Doc. 72.) Thereafter, The Court granted Defendant's Motion to Extend Time to File Objections to the Magistrate Judge's Report and Recommendation (Doc. 79) and vacated its prior Order adopting the R & R. (Docs. 79, 83.) Defendant has now filed his objections, and the Government filed its response. (Docs. 84, 88.) Defendant's objections relate only to the Motion to Suppress Fruits of Illegal Seizure and consent to search the package.

         The Court has reviewed the Motion to Suppress Statements and the Motion to Motion to Suppress Fruits of Illegal Seizure (Docs. 29, 30), the government's responses (Docs. 37, 38), the R & R (Doc. 69), the hearing transcripts from July 18, 2016 (Doc. 84, Ex.1), and August 17 and 19, 2016 (Docs. 68, 81), Defendant's objections to the R & R (Doc. 84), and the government's response (Doc. 88), and Defendant's reply (Doc. 89).

         The Court will adopt the R & R with respect to the Motion to Suppress Statements and deny the Motion. The Court will also adopt the R & R with respect to the finding of consent to search the package and need not reach the issue of probable cause for the warrantless search. Therefore, the Court will deny the Motion to Suppress Fruits of Illegal Seizure.

         I. Background

         The seizure of the package and arrest of Defendant were the result of cooperation between Arizona-based DEA agents and Florida-based DEA Agents Bell and Key in Panama City, Florida. It is undisputed that the Arizona DEA Agents had no warrant to seize the package. The Magistrate Judge found, inter alia, that the Tucson Agents had probable cause to seize the package and that Defendant gave his consent to the search of the package.

         Defendant objects to the Magistrate Judge's findings on two grounds: (1) the Magistrate Judge improperly limited the probable cause inquiry to information and evidence obtained after the Arizona DEA Agents received Defendant's identity from the Florida DEA Agents; i.e. she refused to allow inquiry into how the Florida DEA Agents initially determined Defendant's identity; and (2) the Magistrate Judge improperly found that Defendant had consented to the opening of the package.[1] (Doc. 84 at 5, 10.)

         The evidence leading to Defendant's arrest is adequately set forth in the R & R. (Doc. 69 at 2-3.) Because the Court finds that Defendant gave his consent for the search of the package, the Court need not reach the issue of probable cause and will not further discuss the facts related to that issue.

         On November 19, 2015, Arizona DEA agents had a FedEx shipping facility under surveillance, and when the Defendant arrived and handed a package to Shane Karwoski to mail at the FedEx, Defendant and Mr. Karwoski were both arrested. After Defendant's arrest, he participated in an unrecorded interview. Defendant acknowledged signing a Recording Declination form. (Govt's Exhibit 1). Defendant testified that he did not consent to the opening of the package taken from Shane Karwoski at the time of the arrest. The Government presented evidence (Govt's Exhibit 2) of Defendant's consent to search his phone, which the Defendant claims he did not sign. Defendant asserts that the signature on the consent form does not match the signature on the Recording Declination form. (Doc. 84 at 4.) The Magistrate Judge found Defendant's statement that the package was not his was not credible and, for the same reason, found Defendant's testimony that he did not consent to a search of the package not credible. (Doc. 69 at 9.)

         II. Legal Standards

         A. Review of R & R

         The Court reviews de novo the objected-to portions of the Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The Court reviews for clear error the unobjected-to portions of the Report and Recommendation. Johnson v. Zema Systems Corp., 170 F.3d 734, 739 ...


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