IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
) CRIMINAL ACTION FILE
) NUMBER 1:12-cr-409-TCB
UNITED STATES OF AMERICA
O R D E R
This matter is before the Court on Defendant Tremain Hutchinson’s
objections  to Magistrate Judge Vineyard’s Report and
Recommendation (the “R&R”) , which recommends that Hutchinson’s
various motions to suppress [21, 23, 25] be denied.
A district judge has a duty to conduct a “careful and complete” review
of a magistrate judge’s R&R. Williams v. Wainwright, 681 F.2d 732, 732
(11th Cir. 1982) (quoting Nettles v. Wainwright, 677 F.2d 404, 408 (5th
Where no objection to the R&R is made, it need only be
1 The Eleventh Circuit has adopted as binding precedent all Fifth Circuit decisions
issued before October 1, 1981, as well as all decisions issued after that date by the Unit B
panel of the former Fifth Circuit. Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir.
reviewed for clear error. Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th
Where objections are made, a district judge “shall make a de
novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1)(C). The district judge must “give fresh consideration to those
issues to which specific objection has been made by a party.” Jeffrey S. v.
State Bd. of Educ., 896 F.2d 507, 512 (11th Cir. 1990).
“Parties filing objections must specifically identify those findings
objected to. Frivolous, conclusive or general objections need not be
considered by the district court.” Nettles, 677 F.2d at 410 n.8. “This rule
facilitates the opportunity for district judges to spend more time on matters
actually contested and produces a result compatible with the purposes of
the Magistrates Act.” Id. at 410.
1982); see also United States v. Schultz, 565 F.3d 1353, 1361 n.4 (11th Cir. 2009)
(discussing continuing validity of Nettles).
2 Macort addressed only the standard of review applied to a magistrate judge’s
factual findings; however, the Supreme Court has held that there is no reason for the
district court to apply a different standard of review to a magistrate judge’s legal
conclusions. Thomas v. Arn, 474 U.S. 140, 150 (1985). Thus, district courts in this
circuit have routinely applied a clear-error standard to both. See Tauber v. Barnhart,
438 F. Supp. 2d 1366, 1373-74 (N.D. Ga. 2006) (collecting cases). By contrast, the
standard of review on appeal distinguishes between the factual findings and legal
conclusions. See Monroe v. Thigpen, 932 F.2d 1437, 1440 (11th Cir. 1991) (when
magistrate judge’s findings of fact are adopted by district court without objection, they
are reviewed on appeal under plain-error standard, but questions of law remain subject
to de novo review).
The district judge also has discretion to decline to consider arguments
that were not raised before the magistrate judge. Williams v. McNeil, 557
F.3d 1287, 1292 (11th Cir. 2009). Indeed, a contrary rule “would effectively
nullify the magistrate judge’s consideration of the matter and would not
help to relieve the workload of the district court.” Id. (quoting United
States v. Howell, 231 F.3d 615, 622 (9th Cir. 2000)).
After conducting a complete and careful review of the R&R, the
district judge may accept, reject or modify the magistrate judge’s findings
and recommendations. 28 U.S.C. § 636(b)(1)(C); Williams, 681 F.2d at
732. The district judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1)(C).
The Court has conducted a careful review of the R&R and
Hutchinson’s objections thereto. Having done so, the Court finds that
Magistrate Judge Vineyard’s factual and legal conclusions were correct and
that Hutchinson’s objections have no merit. The R&R addresses three
motions to suppress, which seek to suppress (1) Hutchinson’s statements,
(2) evidence recovered from a searched cellphone, and (3) identifications of
Hutchinson from two different photo arrays. As stated above, the R&R
recommends that all three motions be denied, and Hutchinson disagrees.
With respect to his motion to suppress his statements, Hutchinson
contends that his statements to the police were involuntary and should be
suppressed because five officers were present at his mother’s apartment,
woke him up when they arrived, and told him that his movements around
the apartment made them nervous. However, the Court agrees with the
R&R’s comprehensive discussion of why Hutchinson’s statements were
voluntary based on the totality of the circumstances, and how the officers’
actions and statements did not render his statements involuntary. Thus,
the Court finds the R&R’s recommendation that Hutchinson’s motion to
suppress his statements be denied is proper.
With respect to his motion to suppress the evidence collected from a
cellphone, Hutchinson asserts that his consent to search the cellphone in
his possession was involuntary. He contends that the detective’s refusal to
allow Hutchinson to use the cellphone while he was transported to police
headquarters constituted an improper seizure and made his subsequent
consent to search the phone involuntary. Hutchinson also argues that the
detective who took the phone believed that there would be inappropriate
images of minors on the phone and that as a result the phone would not be
returned. Thus, Hutchinson argues that his consent to the phone’s being
searched, which was allegedly based in part on the detective’s
representation that the phone would be returned, was involuntary. The
Court disagrees with both arguments.
The R&R thoroughly and accurately details the legal standard for
determining whether consent to a warrantless search is voluntary, and the
R&R correctly concludes that the record in this case shows that
Hutchinson’s consent to the phone search was voluntary and was not
subsequently rendered involuntary by the officers’ actions or
representations. Furthermore, the search did not exceed the scope of
Hutchinson’s consent. Thus, the Court finds that the R&R’s
recommendation that Hutchinson’s motion to suppress the evidence be
denied is also proper.
Finally, with respect to his motion to suppress identifications,
Hutchinson argues that the two different photo arrays viewed by three
witnesses were unduly suggestive and should be suppressed. Two minor
witnesses were shown one photo array, and a third minor was shown a
second photo array. Hutchinson contends that the first array was unduly
suggestive because his head was larger and his hair was longer and more
unkempt than the individuals in the other photographs. He contends that
that second array was also unduly suggestive because his hair was unkempt
and his head smaller than the other individuals and because only one other
photo showed an individual with thick facial hair similar to his.
The Court finds that even if these differences were present in the
photo arrays, Hutchinson has not shown that these minor differences
rendered the photo arrays unconstitutionally suggestive. Thus, the R&R
properly rejected his arguments and recommended that his motion to
suppress the identifications from the photo arrays be denied.
Accordingly, the Court ADOPTS AS ITS ORDER the R&R  and
DENIES Hutchinson’s motions to suppress [21, 23, 25]. In addition, the
Court GRANTS Hutchinson’s motion to allow participation in voir dire
IT IS SO ORDERED this 30th day of July, 2013.
Timothy C. Batten, Sr.
United States District Judge