United States District Court, D. Alaska
ORDER RE MOTION TO SUPPRESS
L. GLEASON UNITED STATES DISTRICT JUDGE
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.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 of the search. The Government filed a
response to both objections and urged that the Court accept
the Report and Recommendation in its entirety.
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.” 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.” 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.”
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 he would not have made had he been provided a copy of
the warrant.” 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
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.”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. 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.
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. 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. The Court finds Williamson
sufficiently analogous to the facts of this case.
Mr. Strickland argues that United States v. Hector
is also distinguishable.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.
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.
 Docket 128.
 Docket 129.
 28 U.S.C. § 636(b)(1).