United States v. Velasco

          ORDER

          Cindy K. Jorgenson United States District Judge.

         On 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.^[1] 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.

         Velasco 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

         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 (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.”).

         Report and Recommendation - Factual Background

         Velasco 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.^[2] The Court will consider these additional facts in conducting its review.

         Standing

         “A 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).

         The 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).

         Velasco 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 arrest.

         However, 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 overnight ...