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United States v. Kennemer

United States District Court, D. Arizona

August 16, 2017

United States of America, Plaintiff,
William Robert Kennemer, Defendant.


          Honorable Cindy K. Jorgenson United States District Judge

         On July 14, 2017, Magistrate Judge Leslie A. Bowman issued a Report and Recommendation (“R&R”) (Doc. 30) in which she recommended that Defendant's Motion to Suppress/Motion for Return of Property (Doc. 10) be denied. The Court has reviewed the R&R, Defendant's Objection (Doc. 31), the Government's Response (Doc. 32), and the audio and exhibits from the Evidentiary Hearing. The Court has also considered Defendant's Motion to Suppress, Government's Response (Doc. 21), and Defendant's Reply (Doc. 23). The Court adopts the R&R, and denies Defendant's Motion.

         This Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). Further, under 28 U.S.C. § 636(b)(1), if a party makes a timely objection to a magistrate judge's recommendation, then this Court is required to “make a de novo determination of those portions of the [report and recommendation] to which objection is made.” The statute does not “require [] some lesser review by [this Court] when no objections are filed.” Thomas v. Arn, 474 U.S. 140, 149-50, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Rather, this Court is not required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Id. at 149.

         No objections having been made to the magistrate judge's rendering of the procedural and factual history, the Court adopts those recitations. The Court now addresses Defendant's objections to the Magistrate Judge's R&R.

         Motion to Suppress/Motion for Return of Property

         Defendant's motion asks the court to suppress all evidence seized by agents from the Defendant's home on September 9, 2016, and the guns from the Arizona House of Guns (“gun store”) on or about the same date. (Doc. 10.) Defendant contends that the seizure was a violation of his Fourth Amendment rights because he did not consent to the seizure, the incriminatory nature of the evidence was not immediately apparent (Id. at 3), and the discovery was not inadvertent (Doc. 31 at 2). Defendant further asks for the return of the property seized pursuant to Fed.R.Crim.P. Rule 41(g). (Doc. 10.)

         The Government argues against suppression, stating that the evidence was seized lawfully because the evidence was in plain view after the Defendant consensually provided it to the agents, and its incriminating nature was immediately apparent. (Doc. 31.)

         The Magistrate Judge's R&R determined that the motion to suppress should be denied because the seizure of the evidence was with Defendant's consent. (Doc. 30 at 2.) Furthermore, the evidence was in plain view and its incriminatory nature was apparent. (Id.)

         Factual History

         Starting as early as December 2014, ATF Special Agent David Lopez was investigating Defendant for the sale of firearms. Lopez testified that he discovered that Defendant had purchased multiple firearms of the same model on two different occasions. In addition, Bureau of Land Management agents discovered one of Defendant's purchased firearms at the scene of a crime, in the possession of someone underage. (Exh. 2, Doc. 21-1 at 6-7.) Based on this knowledge, two ATF agents and a U.S. Border Patrol Agent visited Defendant's house December 8, 2014. Agent Lopez attested that the agents were in plain clothes with badges, and knocked on Defendant's door. Defendant appeared to be at ease and friendly. (Exh. 1, 3.)

         In this first meeting, Defendant admitted to selling approximately ten to twelve firearms in the last six months and showed agents between fifteen and twenty bills of sale for firearms he sold. (Exh. 2, Doc. 21-1 at 5-6.) Defendant also admitted he made a small profit from the sales. (Id. at 6) An agent explained to Defendant that selling firearms required a license, and that the agent would return to the home later to provide him a warning and an application packet for the license. (Id. at 5, 8, 13.)

         The agents returned the following day, and gave Defendant a warning letter, which he signed. (Exh. 5.) Agents also warned Defendant he needed to either obtain a license or stop selling firearms, otherwise he could be subject to prosecution for illegal purchasing and reselling of firearms. (Exh. 4, Doc. 21-2 at 7-10.) Defendant again stated he made minimal profit from the sale of firearms. (Id. at 13.) At this time, agents asked to look at the bills of sale again. (Id. at 4-5.) Defendant willingly provided the bills of sale, and agents took pictures and returned them to Defendant. (Id. at 4-5.) After inquiry, agents discovered one of Defendant's sales was to a convicted felon who had not had his gun rights restored. (Exh. 7, Doc. 21-3 at 37.)

         Agent Lopez testified that after the warning, on February 1, 2016, an undercover agent made contact with Defendant through an ad on The agent purchased a gun from Defendant, and when Defendant asked the agent to create a bill of sale, the agent falsely identified himself. The Defendant never followed up on the accuracy of the personal information.

         Agents also learned that a gun purchased by Defendant was later retrieved at a crime scene in California. (Exh. 7, Doc. 21-3 at 21.) Defendant had bought the handgun within the last sixty ...

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