USA v. Strickland et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
NATHAN STRICKLAND, JOHNNYLEE
BURK,
Defendants. 	Case No. 3:15-cr-00088-SLG
ORDER RE MOTION TO SUPPRESS
Before the Court is a Motion to Suppress filed by Defendant Nathan Strickland at
Docket 46; Defendant Burk filed a notice of intent to join in the motion at Docket 61. The
motion seeks to suppress evidence obtained pursuant to a search warrant for a residence
located at 4191 Carefree Drive, Wasilla. 	The motion was referred to Magistrate Judge
Deborah M. Smith. The Government filed its opposition to the motion at Docket 56; Mr.
Strickland filed a reply at Docket 60. Evidentiary hearings were held on the motion before
the Magistrate Judge on June 21, 2016 and August 19, 2016. 	The Magistrate Judge
issued a Final Report and Recommendation regarding the motion at Docket 124,
recommending that the motion be denied. 	Defendant Burk filed an opposition to the
report, but made no specific objections to the Magistrate Judge’s recommendations.1
Defendant Strickland filed objections to the Report and Recommendation, which focus on
the fact that Mr. Strickland had not been provided a copy of the search warrant at the time
1 Docket 128.
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of the search.2 The Government filed a response to both objections and urged that the
Court accept the Report and Recommendation in its entirety.
When a motion has been referred to a magistrate judge, 28 U.S.C. § 636(b)(1)
provides that the district judge “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” However, the district judge
must “make a de novo determination of those portions of the [magistrate judge’s] report
or specified proposed findings or recommendations to which objection is made.”3 	But
“[n]either the Constitution nor the statute requires a district judge to review, de novo,
findings and recommendations that the parties themselves accept as correct.”4 Rather,
“[i]t does not appear that Congress intended to require district court review of a
magistrate’s factual or legal conclusions, under a de novo or any other standard, when
neither party objects to those findings.”5
DISCUSSION
Mr. Strickland’s objection to the Report and Recommendation centers on the lack
of presentment to him of the search warrant at the time of the search. He first argues that
he was prejudiced by Agent Foreman’s failure to provide him with a copy of the warrant,
and maintains that “as a result of the search warrant Mr. Strickland made statements that
2 Docket 129.
3 28 U.S.C. § 636(b)(1).
4 U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (citations omitted).
5 Thomas v. Arn, 474 U.S. 140, 150 (1985).
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he would not have made had he been provided a copy of the warrant.”6 However, there
is no evidentiary support for this statement in the record, as Mr. Strickland did not testify
at 	the 	evidentiary 	hearings 	on 	the 	motion. 	Accordingly, 	no 	prejudice 	has 	been
demonstrated and the Court concurs with the Magistrate Judge’s finding on this issue.
Mr. Strickland next argues that there was a “deliberate disregard” of the rule
requiring presentment by Agent Foreman. 	He maintains that Agent Foreman “willfully
disregarded [her] training by failing to provide Mr. Strickland with a copy of the warrant.”7
But on de novo review, the Court is not persuaded by this assertion. 	Agent Foreman
indicated that she began her training in October 2009 and arrived at the office in May of
2010 – over six years ago.8 	Prior to the second hearing, Agent Foreman reviewed her
training materials and, at the August hearing, testified that she had indicated that although
she had received training on this topic in the past, she had forgotten about Ninth Circuit
law that requires law enforcement to serve a copy of the warrant prior to commencing the
search when there is no justifiable reason for delaying service. Her testimony that search
warrants have not generally been served at the outset of searches in this district was
corroborated by other law enforcement officers who testified at the hearing. In light of the
foregoing, and on de novo review, this Court agrees with the Magistrate Judge’s finding
that Agent Foreman did not deliberately disregard the presentment requirement when she
served the warrant.
6 Docket 129 at 2.
7 Docket 129 at 2.
8 Docket 82 at 4.
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Mr. Strickland also argues that the Magistrate Judge’s reliance on United States v.
Williamson is misplaced, because at the second hearing Agent Foreman testified that she
now recalled having learned of the presentment requirement during her previous
training.9 But in Williamson, as in this case, at the time of the execution of the search
warrant, the agent was unaware of the case law requiring the agent to provide a copy of
the warrant at the outset of the search.10 	The Court finds Williamson sufficiently
analogous to the facts of this case.
Finally, Mr. Strickland argues that United States v. Hector is also distinguishable.11
But although Mr. Strickland has correctly observed several factual distinctions between
Hector and this case, the Court finds that the fundamental points in Hector--that the causal
connection between the failure to present the warrant and the seizure of the evidence
was highly attenuated and the social costs of excluding the evidence were considerable
--applies with equal force in this case.
For the foregoing reasons, the Final Report and Recommendation at Docket 124
is adopted and accepted in its entirety. In light of the foregoing, the Motion to Suppress
at Docket 46 and Mr. Burk’s joinder in that motion at Docket 61 are DENIED.
DATED this 18th day of November, 2016 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
9 Docket 129 at 3.
10 United States v. Williamson, 430 F.3d 1125, 1130 (9th Cir. 2006).
11 Docket 129 at 3; citing United States v. Hector, 474 F. 3d 1150 (9th Cir. 2006).
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