United States District Court, N.D. Georgia, Rome Division
HAROLD L. MURPHY, District Judge.
This case is before the Court on Defendant's Motion to Suppress Statements  and on the Non-Final Report and Recommendation of United States Magistrate Judge Walter E. Johnson .
1. Standard of Review for a Report and Recommendation
28 U.S.C. § 636(b)(1) requires that in reviewing a magistrate judge's report and recommendation, the district court "shall make a de nova determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). The Court therefore must conduct a de nova review if a party files "a proper, specific objection" to a factual finding contained in the report and recommendation. Macort v. Prem, Inc., 208 F.Appx. 781, 784 (11th Cir. 2006); Jeffrey S. by Ernest S. v. State Bd. of Educ., 896 F.2d 507, 513 (11th Cir. 1990); United States v. Gaddy, 894 F.2d 1307, 1315 (11th Cir. 1990); Loconte v. Dugger, 847 F.2d 745, 750 (11th Cir. 1988). If no party files a timely objection to a factual finding in the report and recommendation, the Court reviews that finding for clear error. Macort, 208 F.Appx. at 784. Legal conclusions, of course, are subject to de novo review even if no party specifically objects. United States v. Keel, 164 F.Appx. 958, 961 (11th Cir. 2006); United States v. Warren, 687 F.2d 347, 347 (11th Cir. 1982).
A. Procedural Background
On May 29, 2014, a federal grand jury sitting in the Northern District of Georgia returned an indictment against Defendant, alleging that Defendant knowingly possessed a computer containing visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C §§ 2252(a)(4)(B) and 2252(b)(2). (See generally Indictment (Docket Entry No. 3).)
On July 10, 2014, Defendant filed a Motion to Suppress Statements. (Docket Entry No. 15.) On August 13, 2014, Judge Johnson held a hearing on Defendant's Motion. (Docket Entry No. 18.) Defendant filed a Post-Hearing Brief in Support of Motion to Suppress Statements on September 12, 2014. (Docket Entry No. 20.) On November 11, 2014, the Government filed a response. (Docket Entry No. 22.)
On November 14, 2014, Judge Johnson issued a Non-Final Report and Recommendation, recommending that Defendant's Motion be denied. (Docket Entry No. 23.) Defendant has not filed objections, and the allotted time for filing objections has elapsed. (See generally Docket.) The Court consequently finds that the matter is ripe for resolution.
B. Factual Background
The Court has reviewed the record and concludes that Judge Johnson accurately and completely summarized the factual background for the Motion to Suppress Statements. (Non-Final Report & Recommendation (Docket Entry No. 23) at 2-6.) The Court incorporates that portion of the Non-Final Report and Recommendation into this Order as if set forth fully herein.
The Court concludes that Judge Johnson correctly set forth the relevant Fifth Amendment law. (Non-Final Report and Recommendation at 7-8.) Furthermore, Judge Johnson correctly concluded that there was no Fifth Amendment violation because there was no custodial interrogation, relying on the Supreme Court's decision in Edwards v. Arizona, 451 U.S. 477, 486 (1981). (Id.)
The Court also approves Judge Johnson's description of the Sixth Amendment right to counsel. Judge Johnson stated that "[t]he Supreme Court has pegged commencement [of the right to counsel] to the initiation of adversary judicial criminal proceedings-whether by way of formal charge, preliminary hearing, information, or arraignment.'" (Non-Final Report and Recommendation at 9 (second alteration in original) (internal quotation marks and citation omitted).) Judge Johnson further stated that the Sixth Amendment right to counsel is offense specific, citing United States v. U.S. Infrastructure, Inc., 576 F.3d 1195, 1216 (11th Cir. 2009). (Id. at 9-10; see also Gore v. Sec'y for Dep't of Corr., 492 F.3d 1273, 1303 (11th Cir. 2007) ("[T]he Sixth Amendment right to counsel is offense-specific.").) Judge Johnson correctly applied that law to the facts of this case, finding that Defendant had a ...