United States District Court, D. Arizona
K. Jorgenson United States District Judge.
April 18, 2019, Magistrate Judge D. Thomas Ferraro issued a
Report and Recommendation (“R&R”) (Doc. 55)
in which he recommended the Motion to Suppress (Docs. 26 and
29) filed by Thomas Brice Velasco ("Velasco") be
denied. This Court referred the matter back to the
magistrate judge for a supplemental report and recommendation
regarding whether Velasco had a legitimate expectation of
privacy in the place searched. On June 11, 2019, the
Magistrate Judge Ferraro issued a supplemental Report and
Recommendation (“Supp. R&R”) (Doc. 76) in
which he determined that Velasco lacks standing to contest
the search and recommended the Motion to Suppress be denied.
has filed Objections to the Reports and Recommendations
(Docs. 58 and 79) and the government has filed Responses
(Docs. 63 and 80).
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 (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
instructions.” Fed.R.Civ.P. 72(b)(3); see also
28 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.”).
and Recommendation - Factual Background
asserts he did not, as the magistrate judge stated in the
R&R, approach the officers from the Dodge truck's
location. Velasco also asserts the magistrate court failed to
consider that Officer May relayed to Officer Lopez that he
had met with Trina Norris and reconfirmed that Velasco was
the individual causing the disturbance. It appears Velasco is
asserting the magistrate judge did not consider this
information because it was not included in the factual
summary. The Court will consider these additional
facts in conducting its review.
defendant has standing to challenge the legality of a search
on Fourth Amendment grounds only if he has a 'legitimate
expectation of privacy' in the place searched.”
United States v. Zermeno, 66 F.3d 1058, 1061 (9th
Cir. 1995) (citations omitted); see also United States v.
Parks, 285 F.3d 1133 (9th Cir. 2002). “The
defendant bears the burden of establishing his legitimate
expectation of privacy.” Zermeno, 66 F.3d at
1061. “To demonstrate this, [a defendant] must manifest
a subjective expectation of privacy in the area searched, and
their expectation must be one that society would recognize as
objectively reasonable.” United States v.
Sarkisian, 197 F.3d 966, 986 (9th Cir. 1999).
Supreme Court has determined an “overnight guest in
another's home has a reasonable expectation of privacy
for purpose of Fourth Amendment standing.”
Minnesota v. Olson, 495 U.S. 91, 96, 98
(1990). The magistrate judge stated:
Critically, however, Defendant failed to specify the time and
date that he lived in any space or room in New House #67.
Defendant's failure to tie his residency at New House #67
to any date(s) and/or time period(s) is fatal to his claim
that he had a reasonable expectation of privacy in any part
of New House #67 on April 23, 2016.
Supp. R&R (Doc. 76, pp. 2-3).
asserts the magistrate judge erred in concluding he was not
an overnight guest at the New House # 67 residence.
Specifically, Velasco asserts the declaration of the owner of
New House # 67, which states that Velasco and Velasco's
girlfriend would stay at New House # 67 “for days,
weeks, and sometimes months at a time[, ]” Declaration
(Doc. 79-1), supports a conclusion Velasco was an overnight
guest. Further, Velasco had a key to New House # 67, he and
his girlfriend stored their belongings at the residence, and
Velasco supported the New House # 67 residence (e.g.,
purchased food for members of the house to share, performed
household chores). Velasco also points out the
government's disclosure states that Velasco and his
girlfriend had been staying at House #67 at the time of his
a review of the Tohono O'odham Police Report referenced
by Velasco does not specify when Velasco and his girlfriend
“had been sleeping in the living room area.”
Objection, Ex. A (Doc. 79-1). Velasco describes an
intermittent overnight guest status, with no showing that he
spent the night before (or even a night within the preceding
week or month) the officer looked into the vehicle. Velasco
has not cited to any authority establishing an intermittent
overnight guest has standing to contest a search. See
e.g. Minnesota v. Carter, 525 U.S. 83, 96 (1998)
(Scalia, J., joined by Thomas, J., concurring) (although