United States District Court, D. Arizona
K. JORGSON UNITED STATES DISTRICT JUDGE.
December 27, 2016, Magistrate Judge Leslie A. Bowman issued a
Report and Recommendation (Doc. 45) in which she recommended
that the Motion to Suppress (Doc. 35) filed by Kristen
Theresa Morris ("Morris") be denied. Morris has
filed an Objection to Magistrate Judge's Report and
Recommendation to Deny Defendant's Motion to Suppress
(Doc. 50); a Response to Defendants' Objection to
Magistrate Judge's Report and Recommendation (Doc 68) has
been filed. On January 17, 2017, the magistrate judge issued
a second, related Report and Recommendation (Doc. 52). Morris
has filed a Supplement to Objection to Magistrate Judge's
Report and Recommendation (Doc. 72).
Court has reviewed the Motion to Suppress (Doc. 35), the
Response (Doc. 38), the Supplemental Memorandum in Support of
Motion to Dismiss (Doc. 44), the Response to the Supplemental
Memorandum (Doc. 47), the December 27, 2017 Report and
Recommendation (Doc. 45) ("12/27/16 R&R") (Doc.
45), the January 17, 2017 Report and Recommendation (Doc. 57)
("1/17/17 R&R"), the Objection to Magistrate
Judge's Report and Recommendation to Deny Defendant's
Motion to Suppress (Doc. 50), the Objection to Magistrate
Judge's Report and Recommendation (Doc. 66), the Response to
Defendants' Objections to Magistrate Judge's Report
and Recommendation (Doc. 68), the Supplement to Objections to
Magistrate Judge's Report and Recommendation to Deny
Defendant's Motion to Suppress (Doc. 72), and the
transcript of the December 13, 2016, hearing
through her joinder to the co-defendant's objection, has
requested oral argument. The Court finds it would not be
assisted by additional evidence or argument and declines to
set this matter for hearing.
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. §
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
and Recommendation - Factual Background
objects to the conclusions reached by Agent Rubalcava based
on the time the agent had to observe the vehicle as it passed
him. She asserts such testimony is not credible. Deference to
a "magistrate's credibility determinations is
appropriate when supported by the record." 32 Am. Jur.
2d Federal Courts § 146 (May 2014); United States v.
Boone, 951 F.2d 1526, 1536 (9th Cir. 1991). Agent
Q: ... When you're sitting there at the turnout by mile
marker 3 04, approximately how long does it take a vehicle to
pass you at 65 miles an hour?
A. It only takes a fraction of a second, but I don't ~ I
don't do tunnel vision just straightforward, I'm
looking down the road to see what's coming up and
what's coming up to my position. I mean, the view that I
had is not the split second view just right in front of me
through ~ through ~ through just a cylindrical cone. I mean,
I have to look left and right and that's ~ that's
what I do when I observe traffic.
Q. Okay. So you're looking down south?
Q. So you see a car traveling north and you track it and it
goes by you, correct?
A. Yeah, I keep on doing that.
Q. Split second in front of you, what, ten seconds the entire
time you're able to observe?
A. Probably less than that from my field of view, less than
Q. Less than ten seconds?
A. I want to say between seven ~ ten seconds is pretty far
out. TR, pp. 68-69. The magistrate judge summarized this
testimony as the agent having "had less than 10 seconds
to observe the two vehicles as they passed his
location." 12/27/16 R&R (Doc. 45), p. 3.
Court finds the agent was estimating the amount of time he
had to observe the vehicles. The estimate given by the agent
was reasonable and does not negatively impact his
credibility. Simply put, the Court finds there would have
been sufficient time for Agent Rubalcava to make the
observations that were the subject of his testimony. The
Court agrees with the magistrate judge's implicit finding
the agents' testimony to be credible.
through her joinder of the co-defendant's objection,
objects to the magistrate judge's finding that Agent
Rubalcava testified that these two cars were the only cars
with windows rolled down. It is asserted that the agent
stated that these were the only cars that had
"both" windows rolled down. The agent testified on
cross-examination as follows:
Q. What -- how can you tell between a car following another
car and traveling in tandem?
A. Well, they usually, they match each other on speed and
lanes and they ~ they -- they follow each other closely,
that's one of the deals, and then out of all the vehicles
that I had seen at that point in time since I got on duty,
those were the only two vehicles that had their windows down.
That's what brought my attention to them.
TR, p. 38. The agent later testified:
Q. And that night about how many cars had you seen pass that
location with ...