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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION




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) CRIMINAL ACTION FILE
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) NUMBER 1:12-cr-409-TCB
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UNITED STATES OF AMERICA

v.

TREMAIN HUTCHINSON,







Defendant.

O R D E R

This matter is before the Court on Defendant Tremain Hutchinson’s

objections [74] to Magistrate Judge Vineyard’s Report and

Recommendation (the “R&R”) [67], 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

Cir. 1982)).1

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

Cir. 2006).2

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).



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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.



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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



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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



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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 [67] and

DENIES Hutchinson’s motions to suppress [21, 23, 25]. In addition, the

Court GRANTS Hutchinson’s motion to allow participation in voir dire

[22].

IT IS SO ORDERED this 30th day of July, 2013.






























___________________________
Timothy C. Batten, Sr.
United States District Judge

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