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United States v. Rau

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

December 3, 2019

United States of America,
Cheri Lea Rau (3), Defendant.


          Michael L. Brown United States District Judge

         The Magistrate Judge issued a Report and Recommendation (“R&R”) (Dkt. 781), recommending denial of Defendant Cheri Rau's Motion to Suppress Evidence from Postal Search (Dkt. 741) and Perfected Motion to Suppress Evidence from Postal Search (Dkt. 756).

         I. Background

         The Court incorporates by reference the facts and legal standards stated in the R&R. In short, the United States indicted Defendant Rau as part of an alleged criminal street gang called the Ghostface Gangsters. The United States charged her with RICO conspiracy and conspiracy to traffic a controlled substance. Some of the evidence the United States seeks to introduce at trial came from the execution of search warrants on various pieces of mail. Defendant Rau moved to suppress evidence obtained pursuant to the execution of three warrants.[1] She moved to suppress evidence from several pieces of mail sent to a rental house that she claims to own at 3834 Wynntuck Circle in Kennesaw, Georgia. One of the items was addressed to Terry Rau; two were addressed to Sheryl Rau; and three were addressed to J&C Auto or Darius Range.

         The Magistrate Judge recommends denial of her motion to suppress because she lacks standing to challenge the searches, the warrants were supported by probable cause and, even if probable cause was absent, the agents acted on a good-faith belief that the warrants were valid. Defendant Rau filed objections.

         II. Standard of Review

         A district court has a duty to conduct a “careful and complete” review of a magistrate judge's R&R. Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982). Under 28 U.S.C. § 636(b)(1), the Court reviews any portion of the R&R that is the subject of a proper objection on a de novo basis. But, when a party files no objections, the Court reviews the record for plain error. See United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam). “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.” Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988). After conducting a complete and careful review, the district court has broad discretion to accept, reject, or modify a magistrate judge's proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 680 (1980). Additionally, the Court may “receive further evidence or recommit the matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1). For non-dispositive matters, such as the pending discovery motion, “[t]he district judge must consider timely objections and modify or set aside any part of the order that is contrary to law or clearly erroneous.” Fed. R. Crim. P. 59(a).

         III. Analysis

         A. Standing

         Defendant Rau had the burden of establishing “both a subjective and an objective expectation of privacy” in the packages that were searched. United States v. Segura-Baltazar, 448 F.3d 1281, 1285 (11th Cir. 2006). “The subjective component requires that a person exhibit an actual expectation of privacy, while the objective component requires that the privacy expectation be one that society is prepared to recognize as reasonable.” Id. (internal quotation marks omitted). The Magistrate Judge correctly noted that “[a] defendant may have a reasonable expectation of privacy in a package even where the package is not addressed in the defendant's name, provided that [the defendant] establishes a connection between [herself] and the addressee.” United States v. Campbell, 434 Fed.Appx. 805, 809 (11th Cir. 2011). The Magistrate Judge found Defendant Rau failed to establish a sufficient connection between herself and the packages at issue to support her standing to challenge the searches.

         Defendant objects to this conclusion and argues she has standing because she is the sole owner of the Wynntuck Circle residence and because all the packages were addressed to either Terry Rau or Sheryl Rau at that address. (Dkt. 840 at 1-2.) She further argues that “she may reasonably believe that the sender intended to direct the correspondence to her, yet misspelled her name.” (Id. at 2.)[2] She also argues she “has a reasonable expectation of privacy to mail addressed to her property and addressed to her last name.” (Id.)

         To begin with in her motion to suppress, Defendant Rau claimed Wynntuck Circle was “one of [her] rental properties.” (Dkt. 756 ¶ 2.) She never claimed that she lived at the location, that she sometimes resided there, or that she received mail there. In her objections, she makes the legal conclusion that “a person's home is the core of the Fourth Amendment's protection against unreasonable searches and seizures, ” but never alleges that the Wynntuck Circle residence was her “home” or presents any evidence to suggest this. (Dkt. 840 at 3.) The Court accepts the Magistrate Judge's conclusion (and Defendant Rau's assertion) that this was merely a rental property. The Court further finds that Defendant Rau has shown no greater connection between herself and that property.

         The Court also rejects Defendant Rau's contention that she has a privacy interest in all mail sent to someone with her last name at her rental property. In Campbell, the Eleventh Circuit ruled that a defendant's status as a lessee of a property could not establish a connection between him and packages sent to that address in someone else's name. 434 Fed.Appx. at 809. So too, Defendant Rau's mere ownership of the Wynntuck Circle residence cannot establish her right to privacy in packages sent to someone else at that residence. The mere fact that Defendant Rau has the same last name as the addressees of the packages at issue here does not distinguish Campbell. She was not the addressee. She may be related to the addressee, but that does not give her a privacy interest in all the mail. Otherwise, any member of a family could assert a privacy interest in any another family member's mail no matter how tenuous their actual connection.

         Defendant Rau argues — for the first time — that the sender may have misspelled her name. It is also hard to understand how “Terry Rau” could be a misspelling of “Cheri Rau” and no evidence suggests it was. Defendant Rau had a chance to prove this occurred but did not even attempt to do so. She has not alleged or proven, for example, that she sometimes goes by this name, that she once used this name, or even that people sometime confused her with someone by that name. The name “Sheryl Rau” might be a more believable misspelling of “Cheri Rau.” But, Defendant Rau still presents no evidence to suggest this occurred or to ...

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