Opinion
CASE NO.: CR509-17.
April 5, 2010
ORDER
After an independent and de novo review, the undersigned concurs with the Report and Recommendation of the Magistrate Judge, to which Objections have been filed. The Government filed a Response. In his Objections, as amended, Defendant Jay Wayne Burch ("Defendant") states that the Magistrate Judge disregarded the citation to authority he set forth in his Brief in support of his Motion to Suppress and does not address this case law. Defendant contends that the cases he cited in his Brief are no different that the case sub judice, and his Motion should be granted.
The Government asserts that, unlike the defendant in James v. United States, 280 F.2d 443 (8th Cir. 1960), Defendant was arrested only after the police officers developed probable cause that Defendant was unlawfully in possession of firearms given his status as a convicted felon. The Government also asserts that police officers reasonably believed Defendant was in his residence and had a reasonable basis to contact Defendant, and it was only after police officers developed probable cause that Defendant was violating the law that he was arrested, as opposed to the facts underlying the decision in Brock v. United States, 223 F.2d 681 (5th Cir. 1955).
As Defendant's counsel is aware, cases arising from the Eighth Circuit are of no precedential value in this Court, nor is James of any persuasive value; the Magistrate Judge need not have addressed this decision. The Brock decision is distinguishable from the facts presently before this Court. In Brock, federal agents failed to obtain a search warrant "after observing an illicit [moonshine] still for two days" before they conducted a raid on the still and then "proceeding to a house one quarter of a mile away on a public road[.]" Brock, 223 F.2d at 685. The court found the federal agents' conduct violated the Fourth Amendment. As outlined by the Magistrate Judge, the police officers involved in this case were at Defendant's residence for legally permissible purposes and observed the illegally possessed firearms in plain view.
Defendant's Objections are without merit. The Report and Recommendation of the Magistrate Judge is adopted as the opinion of the Court. Defendant's Motion to Suppress is DENIED.