United States District Court, W.D. New York
DECISION AND ORDER
HONORABLE RICHARD J. ARCARA JUDGE
defendant, Tyrone Pennick, is charged in a three-Count
Indictment alleging cocaine-trafficking offenses. The
defendant is charged with one Count of conspiracy to possess
with intent to distribute, and to distribute, more than 500
grams of cocaine in violation of 21 U.S.C. § 846; one
Count of possession with intent to distribute more than 500
grams of cocaine in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2; and one
Count of maintaining a drug-involved premises in violation of
21 U.S.C. § 856(a)(1). The Indictment also includes
notice of a sentence enhancement for committing a crime while
on pretrial release under 18 U.S.C. § 3147.
case was referred to Magistrate Judge Michael J. Roemer
pursuant to 28 U.S.C. § 636(b)(1) for the conduct of
pretrial proceedings. Defendant Pennick filed motions to
suppress items of tangible evidence seized during execution
of a search warrant and post-arrest oral statements, and
sought disclosure orders. Dkt. No. 22. The Magistrate Judge
held an evidentiary hearing during which one law enforcement
officer testified. After briefing and oral argument, the
Magistrate Judge recommended in a Report, Recommendation and
Order filed on February 27, 2018, that the Court should deny
the defendant's motions to suppress, and he denied the
defendant's motions for disclosure orders. Dkt. No. 61.
Pennick has filed objections to the recommended denial of his
suppression motions and has appealed the denial of his
disclosure motions. Pursuant to 28 U.S.C. § 636(b)(1),
the Court makes a de novo determination of those
portions of a Magistrate Judge's report and
recommendation to which specific objections have been made.
Thomas v. Arn, 474 U.S. 140, 155 (1985); United
States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
And upon de novo review, the Court “may
accept, reject, or modify the recommendation, receive further
evidence, or resubmit the matter to the magistrate judge with
instructions.” Fed. R. Crim. P. 59(b)(3).
Pennick objects specifically to the Magistrate Judge's
recommendation that the Court conclude that the defendant
lacks standing to challenge a search of the defendant's
residence at 489 Emerson Drive, Amherst, New York, on
November 17, 2016. He argues that his counsel's
affidavit, and Court records showing that 489 Emerson Drive
was his residence, are sufficient to establish his standing.
de novo review, the Court finds that the Magistrate
Judge correctly concluded that defendant Pennick failed to
establish that he had a subjective and reasonable expectation
of privacy in his residence at 489 Emerson Drive. Dkt. No.
61, pp. 8-9. The defendant failed to carry his threshold
burden to establish standing to challenge the search of his
residence for the reasons stated by the Magistrate Judge, and
the defendant's motion to suppress items seized from that
address during execution of a search warrant is therefore
a residence has special status under the Fourth Amendment,
see e.g., Payton v. New York, 445 U.S. 573,
589 (1980), standing to challenge the search of a residence
is neither automatic nor presumed. See e.g.,
United States v. Watson, 404 F.3d 163 (2d Cir.
2005). As defendant Pennick acknowledges, he was on home
incarceration at 489 Emerson Drive pursuant to an Order
Setting Conditions of Release that included a condition that
the premises were subject to a suspicionless search.
See 10-CR-191, Dkt. No. 791, p. 2 (“submit to
a search of his person, residence, vehicle and any other
property under his control”); Dkt. No. 64, p. 7, n.1.
The defendant signed the pretrial release Order to
acknowledge he was aware of all the conditions it imposed.
See 10-CR-191, Dkt. No. 791, p. 3. Presuming that
the defendant had a subjective expectation of privacy in the
residence, when he was subject to the suspicionless search
condition imposed in the pretrial release Order, would have
been error. In any event, the affidavit that defense counsel
submitted to show that the defendant resided at 489 Emerson
Drive was, without more, insufficient to establish the
defendant's standing to challenge the search. Fed. R.
Crim. P. 59(b)(3).
Pennick purports to object to the Magistrate Judge's
recommendation to deny his motion to suppress his
post-arrrest oral statements by incorporating arguments he
made before the Magistrate Judge, without specifically
identifying any proposed finding or recommendation to which
he objects and without citation to legal authority. As a
result, the defendant's purported objections failed to
preserve an issue on this subject. See Dkt. No. 61,
p. 18 (citing L. R. Crim. P. 59(c)(2)); United States v.
Male Juvenile, 121 F.3d at 38 (“We have adopted
the rule that failure to object timely to a magistrate
judge's report may operate as a waiver of any further
judicial review of the decision, as long as the parties
receive clear notice of the consequences of their failure to
object.”) Nevertheless, the Court reviewed the record
developed before the Magistrate Judge, and the Court finds
that defendant's statements were voluntary, and that the
defendant's rights to counsel and against
self-incrimination under Miranda were not violated
during the post-arrest questioning. The Court therefore
adopts the findings and recommendations of the Magistrate
defendant Pennick raises no clear error and identifies no
ruling contrary to law in any of the non-dispositive rulings
made by the Magistrate Judge. The defendant's conclusory
appeal of those rulings merits no discussion. Fed. R. Crim.
P. 59(a); L. R. Crim. P. 59(c)(1); 28 U.S.C. §
IS SO ORDERED.
Miranda refers to Miranda
v. Arizona, 384 U.S. 436 ...