CA11: USDJ can adopt argument on R&R not presented to USMJ; no waiver

When a USDJ reviews a USMJ’s R&R, the court does not abuse its discretion in accepting an argument not presented to the USMJ to sustain the search. Waiver doesn’t work that way. United States v. Franklin, 694 F.3d 1 (11th Cir. 2012):

A district court does not abuse its discretion by accepting an argument not raised before the magistrate judge. Id. at 1176-77. In Tolbert, this Court held that “[w]e reject the notion that, in its review of the report and recommendation, the district court performed an appellate function and was barred, outside of exceptional circumstances, from considering an argument not raised before the magistrate judge.” Id. The district court did not abuse its discretion in allowing the Government to argue in its objection to the magistrate judge’s report and recommendation that the entry and seizure of the firearms did not violate the Fourth Amendment because the record demonstrated that probable cause and exigent circumstances justified the officer’s conduct.