Court questions whether there is de novo review of a USMJ’s R&R, but does it anyway

The defendant sought de novo review from the U.S. Magistrate Judge’s R&R denying his motion to suppress his alleged consent based under 28 U.S.C. § 636(b)(1)(C). The District Court questions its ability to do so, but it finds under that standard that the consent was valid and the R&R stands. United States v. Zellars, 2007 U.S. Dist. LEXIS 38172 (E.D. Ky. May 24, 2007):

Although this Court must make a de novo determination of those portions of the Magistrate Judge’s proposed findings of fact and recommendations to which objection is made, 28 U.S.C. § 636(b)(1)(c), “[i]t does not appear that Congress intended to require district court review of a magistrate’s factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.” Thomas v. Arn, 474 U.S. 140, 150 (1985). However, the Court has reviewed the evidence presented de novo and agrees with the Magistrate Judge’s conclusion that Zellars knowingly and voluntarily consented to the search of his apartment.

A traffic stop involving a PIT maneuver and injury to plaintiff resulted in a § 1983 case. Plaintiff refused to stop because he could not tell that the car pursuing him, even when it pulled up next to him, was a police car. [There is a story on ABC’s Good Morning America today about people afraid to stop for police who may not appear to be police; it was not posted as of the time of this post. It appeared at 8:08 am.] The officers pled Scott v. Harris (posted here) decided April 30th, but the District Court declined to dismiss the case without discovery. Marshall v. West, 2007 U.S. Dist. LEXIS 38169 (M.D. Ala. May 24, 2007):

Having considered Defendants’ argument and Plaintiff’s response, the court finds, first, that it logically may be inferred that the Lincoln Town Car did not bear resemblance to the typical marked law enforcement vehicle, and, for present purposes, the court accepts the representation of Plaintiff’s counsel on this point. (See Doc. No. 8 at 3 (PP 2-3), 6 and Fed. R. Civ. P. 11(b)(3).) Second, Plaintiff has alleged that he did not know either West or Hutson, that Defendants were in plain clothes (i.e., black tee shirts), and that West, without identifying himself as a law enforcement officer, pointed a pistol out the window directly at Plaintiff. (See Compl. PP 13, 15-16, 19.) The court finds that these allegations support the inference that Plaintiff believed that he was being directed to pull over in a threatening manner by two men in street clothes, not by law enforcement officers. The court, therefore, rejects Defendants’ argument that there are facts presently from which it can be determined that Defendants had arguable reasonable suspicion or probable cause to believe that Plaintiff had violated § 32-5A-193(a) of the Code of Alabama. Cf. Jackson, 206 F.3d at 1166 (finding under summary judgment standard that, if a jury credited plaintiffs’ version of facts, no arguable reasonable suspicion existed for the officers’ investigative stop where evidence showed, among other things, that plaintiffs were in compliance with all traffic laws and that plaintiffs believed that undercover, plain-clothed officers were “armed robbers about to harm them”). Accordingly, the court finds that West and Hutson are not entitled to qualified immunity at this stage of the proceedings on Plaintiff’s Fourth Amendment illegal stop claim.

(d) Fourth Amendment False Arrest and Unlawful Search Claims

Plaintiff also alleges Fourth Amendment false arrest and unlawful search claims in Count I. The viability of Defendants’ substantive arguments seeking dismissal of these two claims hinges on the existence of a legal traffic stop. (See, e.g., Doc. No. 6 at 9-12.) Having found that Plaintiff has sufficiently alleged an unlawful traffic stop, the court also finds that the § 1983 false arrest and unlawful search claims survive the instant motion to dismiss.