2004 | Cited 0 times | D. Maine | June 7, 2004


On February 3, 2004, the United States Magistrate Judge issued aRecommended Decision that this Court deny the Defendant's Motion toSuppress (1) two firearms seized underneath a barn at the residence ofTheresa Nye in Temple, Maine; and, (2) statements he made to police afterhis arrest. (Docket # 48). On March 8, 2004, the Defendant filed anObjection to the Recommended Decision, arguing the weapons should besuppressed because Ms. Nye never gave the police actual or impliedconsent to search the barn.1 (Docket #51).

In his Objection, the Defendant argues the Government failed to proveMs. Nye, the owner of the barn, impliedly consented to its search.2The Defendant raises a series of grounds in the Objection. First, withoutcitation to authority, he claims because Theresa Nye's adult daughter,not Ms. Nye herself, made the initial 9-1-1 call, Ms. Nye's later conductcould not constitute implied consent. (Def.'s Obj. at 3 (Docket #51)). This argument is simply nonsensical and requires no furtherresponse.

Next, the Defendant claims Ms. Nye's consent cannot be implied, becauseshe was confronted with a "show of force." (See Def.'s Obj. at 3(Docket # 51)). This argument fails on two grounds. First, the Defendantdid not make this argument before the Magistrate Judge and, therefore,cannot raise it here. Fireman's Ins. Co. v. Todesca Equip. Co.,Inc., 310 F.2d 32, 38 (1st Cir. 2002); see Borden v. Sec'y ofHealth and Human Serv., 836 F.2d 4, 6 (1st Cir. 1987) ("Parties musttake before the magistrate, `not only their "best shot," but all of theirshots'") (quoting Singh v. Superintending Sch. Comm.,593 F. Supp. 1315, 1318 (D. Me. 1984)). Second, although Defendant argues thepresence of three deputies and the Maine State Tactical Team constitutedsuch a show of force, leading to Ms. Nye's implied consent to the searchof the barn, the Defendant is mistaken as to the facts. Responding to the9-1-1 call, Deputy David Rackliffe arrived at the Nye residence alone.Ms. Nye accompanied him to the barn and searched the barn for thefirearms with him. Thus, when Ms. Nye gave her initial implied consent,only one officer was present. Defendant himself wrote: "Courts are morelikely to find implied consent when a single officer confronts a residentof the property to be searched." (See Def.'s Obj. at 5 (Docket #51)) (quoting Gerald M. v. Conneely, 858 F.2d 378, 384-85 (7thCir. 1988)). Moreover, there is not a scintilla of evidence in thisrecord that Ms. Nye felt coerced by the law enforcement "show of force"either to give or maintain her consent.

Acknowledging Ms. Nye had voluntarily accompanied the police to thebarn, the Defendant argues Ms. Nye's implied consent terminated when Mr.Cadieux was arrested and "any exigency related to safety was eliminated."(See Def.'s Obj. at 4 (Docket #51)). Although consent to search,once given, may be withdrawn, United States v. Jachimko,19 F.3d 296, 299 (7th Cir. 1994); United States v. Ho, 94 F.3d 932, 934(5th Cir. 1996), the law generally requires that the withdrawal ofconsent amount to an "unequivocal act or statement of withdrawal,"United States v. Ross, 263 F.3d 844, 846 (8th Cir. 2001);United States v. Alfaro, 935 F.2d 64, 65 (5th Cir. 1991). Thereis simply no evidence at all Ms. Nye ever withdrew her consent. Contraryto Defendant's argument, the law enforcement officers were not requiredby law to stop the search once Mr. Cadieux was under arrest. UnitedStates v. Mitchell, 82 F.3d 146, 151 (7th Cir. 1996) ("[T]he factthat Mr. Mitchell was placed under arrest sometime after the firstconsent does not work as an automatic withdrawal of the consentpreviously given"). Further, in this case, the person arrested was notthe person consenting to the search. The Defendant's argument that hisarrest should have an immediate impact on the voluntariness of theconsent of the barn owner is a non sequitur. In sum, the MagistrateJudge's finding that Ms. Nye "did not . . . express any displeasurewith the officer's activities outside her residence," Rec. Dec. at 3(Docket # 48), is fully supported by the record.

This Court has reviewed and considered the Magistrate Judge'sRecommended Decision, together with the entire record; this Court hasmade a de novo determination of all matters adjudicated by the MagistrateJudge's Recommended Decision; and, this Court concurs with therecommendations of the Magistrate Judge for the reasons set forth in herRecommended Decision and as further set forth herein. Therefore, theRecommended Decision of the Magistrate Judge is AFFIRMED and theDefendant's Motion to Suppress is DENIED.


1. In his Objection, the Defendant sought review of a single issue:the propriety of the search of the barn. Magistrate Judge Kravchuk ruledboth on the search of the barn and the statements Mr. Cadieux made whilein-custody. The Defendant has waived any objection to the MagistrateJudge's ruling on the in custody statements. 28 U.S.C. § 636(b)(1).On the custodial statement issue, the Magistrate Judge's RecommendedDecision dated February 3, 2004 is affirmed without objection.

2. This opinion addresses only the legal issues the Defendant raisedin his Objection. In her Recommended Decision, Magistrate Judge Kravchukresolved certain credibility issues against the Defendant. This Courtaccepts her evaluations of witness credibility and need not conduct itsown evidentiary hearing. United States v. Raddatz,447 U.S. 667, 674 (1980) (distinguishing between de novo determinationand de novo hearing); United States v. Doe,786 F. Supp. 1073, 1078 (stating district judge is not required to conduct newsuppression hearing to judge credibility of witness and weight ofevidence); United States v. Cadieux, 295 F. Supp.2d 133 (D. Me.2004) (holding district court need not rehear testimony on whichmagistrate judge based her finding and recommendations in order to makeindependent evaluation of credibility).

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