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United States v. Morris

United States District Court, D. Arizona

March 3, 2017

United States of America, Plaintiff,
v.
Kristen Theresa Morris and Marco Antonio Montijo, Defendants.

          ORDER

          CINDY K. JORGSON UNITED STATES DISTRICT JUDGE.

         On 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).

         The 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)[1], 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 ("TR'XDoc. 60).

         Morris, 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

         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. § 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.").

         Report and Recommendation - Factual Background

         Morris 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 Rubalcava testified:

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?
A. Yes.
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 ten seconds.
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.

         The 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.

         Morris, 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 ...

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