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United States v. Rembert

United States District Court, N.D. Georgia, Atlanta Division

January 8, 2019




         This action comes before the Court on the Final Report and Recommendation ("R&R") of Magistrate Judge Alan J. Baverman [Doc. 64] recommending that Defendant's Motion to Suppress Evidence [Doc. 17], Motion to Suppress Statements [Doc. 18], Supplemental Motion to Suppress Evidence [Doc. 26], and Supplemental Motion to Statements [Doc. 27] be granted in part and denied in part. The Order for Service of the R&R [Doc. 65] provided notice that, in accordance with 28 U.S.C. § 636(b)(1), the parties were authorized to file objections within fourteen (14) days of the receipt of that Order. Defendant has filed his objections to the R&R [Doc. 67] ("Def.'s Objs.").


         In reviewing a Magistrate Judge's R&R, the district court "shall make a de novo 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). "Parties filing objections to a magistrate's report and recommendation must specifically identify those findings objected to. Frivolous, conclusive, or general objections need not be considered by the district court." United States v. Schultz. 565 F.3d 1353, 1361 (11th Cir. 2009) (quoting Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988)). If there are no specific objections to factual findings made by the Magistrate Judge, there is no requirement that those findings be reviewed de novo. Garvev v. Vaughn. 993 F.2d 776, 779 n.9 (11th Cir. 1993) (citations omitted). Absent objection, the district court judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge," 28 U.S.C. § 636(b)(1), and may accept the recommendation if it is not clearly erroneous or contrary to the law. FED. R. Crim. P. 59(a). In accordance with 28 U.S.C. § 636(b)(1) and Rule 59 of the Federal Rules of Criminal Procedure, the Court has conducted a de novo review of those portions of the R&R to which Defendant objects and has reviewed the remainder of the R&R for plain error. See United States v. Slav. 714 F.2d 1093. 1095 (11th Cir. 1983).


         As an initial matter, Defendant "reiterates, relies on, and incorporates by reference all of his factual allegations and legal conclusions in his previously filed motions and supporting brief." Def.'s Objs. at 1. "[A] party does not state a valid objection to an R&R by merely incorporating by reference previous filings." Hammonds v. Jackson, No. 13-CV-711-MHS, 2015 WL 12866453, at *6 n.2 (N.D.Ga. May 18, 2015); see also Masimo Corp. v. Philips Elec. N.A. Corp., 62 F.Supp.3d 368, 376 (D. Del. 2014) (holding that underlying briefs may not be incorporated by reference when riling objections to a report and recommendation); Morrison v. Parker, 90 F.Supp.2d 876, 878 (W.D. Mich. 2000) (citations omitted) ("Plaintiffs' general, nonspecific objections, purporting to incorporate by reference their earlier brief, are tantamount to no objection at all and do not warrant further review."). Accordingly, the Court will not review the prior arguments made by Defendant to the Magistrate Judge, but only will consider specific objections made to the R&R.

         A. The November 28, 2016, Traffic Stop and Arrest

         Defendant objects to the Magistrate Judge's conclusion that some of his post-arrest statements made during an approximately 25-second conversation with Officer Anthony Paniagua were made voluntarily and not in response to the questioning by the police officer. Def.'s Objs. at 1-2. The chronology of the conversation between Officer Paniagua and Defendant was as follows:

• Officer Paniagua initiated a traffic stop on a Honda Civic driven by Defendant based on an expired tag.
• After obtaining Defendant's driver's license and running it, Officer Paniagua found that the license was suspended, arrested Defendant for driving with a suspended license, and placed him in the back of his patrol car.
• Defendant was not advised of his Miranda[1] rights.
• Based upon the odor of marijuana coming from the vehicle, Paniagua and another officer searched the vehicle and found a Glock firearm inside an unlocked glove box.
• Officer Paniagua asked Defendant, "Is this your Glock?" to which Defendant responded, "Nah, nah, that's my cousin's car." • Defendant asked Officer Paniagua if he would let "Damien drive my car," and Officer Paniagua responded, "Yeah" and informed Defendant that the weapon would be taken into police property.
• Defendant then said, whoever owns the gun, it was "clean." • Officer Paniagua again asked Defendant if the gun was his, and Defendant ...

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