United States District Court, D. Montana, Billings Division
P. WATTERS U.S. DISTRICT COURT JUDGE.
the Court are Magistrate Judge Timothy Cavan's findings
and recommendation on Defendant Jermaine David
Richardson's motion to suppress. Judge Cavan recommends
the Court deny Richardson's motion.
October 31, 2018, the Court referred Defendant Jermaine David
Richardson's Motion to Suppress (Doc. 24) to Judge Cavan
for purposes of conducting a hearing and issuing findings and
recommendations pursuant to 28 U.S.C. § 636(b)(1)(B) and
Fed. R. Crim. P. 59(a). On December 26, 2018, Judge Cavan
issued his findings and recommendation. (Doc. 40). Judge
Cavan recommended the Court grant Richardson's motion to
suppress, but noted the government may be able to satisfy the
independent source exception because it later obtained a
search warrant. (Doc. 40 at 20-2 1). Judge Cavan was unable
to complete an analysis of the independent source exception
because the government failed to introduce the search warrant
at the hearing. In its objections to Judge Cavan's
findings and recommendation, the government attached the
search warrant as an exhibit and requested the matter be
referred back to Judge Cavan to conduct the independent
source exception analysis with the warrant in hand. (Doc.
44). Pursuant to 28 U.S.C. § 636(b)(1), the Court
recommitted the matter to Judge Cavan to conduct the
independent source exception analysis. (Doc. 47).
February 12, 2019, Judge Cavan re-issued his findings and
recommendation. (Doc. 50). Judge Cavan recommended the Court
deny Richardson's motion to suppress based on the
independent source exception. (Doc. 50 at 11).
Standard of review
United States and Richardson timely objected to Judge
Cavan's findings and recommendation. (Docs. 44 and 51).
The parties are entitled to de novo review of those portions
of Judge Cavan's findings and recommendation to which
they properly object. 28 U.S.C. § 636(b)(1);
United States' objections
United States objects to Judge Cavan's conclusion that
neither the exigent circumstances exception nor the
protective sweep exception justified the warrantless entry
into Richardson's home. The Court agrees with Judge Cavan
in full and the United States' objections are overruled.
objects to Judge Cavan's conclusion that the evidence
seized from Richardson's home is admissible under the
independent source exception to the exclusionary rule.
independent source exception applies if (1) the officers
would have sought a search warrant without seeing the tainted
evidence and (2) the search warrant application contained
probable cause without the tainted evidence. United
States v. Washington, 700 Fed.Appx. 619, 621 (9th Cir.
2017) (citing United States v. Duran-Orozco, 192
F.3d 1277, 1281 (9th Cir. 1999)). Judge Cavan found both
prongs of the independent source exception were present.
the first finding, Richardson argues the officers would not
have sought a search warrant without seeing the tainted
evidence because the officers spoke about obtaining a search
warrant for ten or fifteen minutes prior to the warrantless
entry, but only obtained a search warrant after the seeing
the tainted evidence. Contrary to Richardson's assertion,
Sergeant Riley Finnegan explained at the hearing that the
purpose of entering the home was to secure it "pending a
search warrant application." (Tr. 13:9-25). Sergeant
Finnegan further explained he would not have entered the
residence to secure it if he had not already decided to get a
search warrant because the purpose of securing a residence is
to "prevent the destruction of any evidence that
possibly could be located ...