USA v. Noyola-Martinez et al

Filing 39

Initial Report and Recommendation, Memorandum Opinion

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA
Plaintiff,
vs.
JOSE MANUEL NOYOLAMARTINEZ,

3:10-cr-123-HRH -JDR
RECOMMENDATION
REGARDING
MOTIONS TO SUPPRESS
(Docket Nos. 19, 21)

Defendant.

Defendant Jose Manuel Noyola-Martinez moves to suppress evidence
seized from the kitchen, living room area and bedroom "No. 2" of 3106 West 33rd
Avenue, Apt 1 on September 16, 2010, as well as statements made by him to law
enforcement officers on September 18, 2010. Dockets 19 and 21. The motions are
opposed by the government. Dockets 25 and 24 respectively. An evidentiary
hearing was conducted on February 4, 2011 before the magistrate judge. Upon due
consideration of the evidence adduced and arguments of counsel and memoranda

the magistrate judge recommends that the motions to suppress be denied except as
to the defendant’s suitcase in bedroom No. 2.
Findings of Fact
A.

Background

On September 10, 2010, officers were conducting surveillance at 3106
W. 33rd Ave. They observed Jesus Ayalacoria and an unknown individual (later
identified as Noyola-Martinez) leaving Ayalacoria's pick up truck carrying a white box
and then walking into the entrance of the apartment complex. The drug investigation
on that day involved an investigation of individuals named Enrique Zermeno and
Jesus Ayalacoria.
B.

Traffic Stop

Ty Bishop, Special Agent with Homeland Security Investigations, (SA
Bishop) responded to a traffic stop by Anchorage police on September 16, 2010,
where he first encountered Mr. Noyola-Martinez. The vehicle had been stopped for
excessive speed and excessive window tint.

There were two occupants in the

vehicle. The driver of the vehicle was Enrique Zermeno. The passenger did not
speak English and had Mexican identification. The passenger was Noyola-Martinez
and SA Bishop was asked to speak to Noyola-Martinez in Spanish.
Guy Tavoliero is a special agent (SA Tavoliero) with Homeland Security
Investigations (HSI (formerly known as ICE)). He was called to the scene of the

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vehicle stop. The first time SA Tavoliero heard the name Noyola-Martinez was after
the search was conducted on September 16, 2010.
Zermeno appeared to be very cooperative. He consented to a search
of his vehicle which turned up no contraband. Just before the vehicle search began,
Zermeno informed the officers that he had a substance abuse problem with cocaine
and marijuana. He was then asked by SA Guy Tavoliero if he would consent to a
search of his residence. Zermeno said he would give his consent if he could be
present. Zermeno identified his residence as 3106 W 33rd Apt 1. The written
consent did not address whether there were any other persons staying in the
apartment. There were no limitations as to location within the apartment stated in
the consent to search. There was no mention about any other person using his
apartment. Zermeno signed a consent form.
After determining that they could understand one another SA Bishop
ascertained Noyola-Martinez's citizenship. Noyola-Martinez had with him a Mexican
passport and a fradulent Arizona drivers license in someone else's name. NoyolaMartinez was forthcoming and told him that he was in the United States illegally.
Based upon this response Noyola-Martinez was taken into administrative custody.
He was transported to an office on 10th and Gamble.
//
//

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C.

First Interrogation of Noyola-Martinez

After taking the defendant’s fingerprints SA Bishop conducted an
interview in Spanish. The agent advised Noyola-Martinez of his Miranda rights using
a Miranda card in Spanish which the officer read to Noyola-Martinez line by line,
asking him after each sentence if he understood that right. At no time did NoyolaMartinez indicate that he did not understand what was being said. Noyola-Martinez
indicated that he understood "perfectly," and that he was willing to waive the rights
and speak with SA Bishop. The interview focused on immigration questions. There
was no discussion about any sort of involvement with drugs.
D.

Second Interrogation of Noyola-Martinez

On September 18, 2010, SA Bishop was again present when NoyolaMartinez was interviewed by Anchorage Police Detective Ramon Dojaque and SA
Guy Tavoliero.

SA Tavoliero identified himself and displayed his credentials.

Tavoliero's credentials state that he is a Special Agent with Immigration and
Customs Enforcement under the Department of Homeland Security. The credentials
do not suggest that the officer participates in any drug investigations. That interview
also took place at the Michael Building office on 10th and Gamble. Detective Ramon
Dojaque is a Native Spanish speaker. Once again Noyola-Martinez was advised of
his Miranda rights by Detective Dojaque. Noyola-Martinez indicated he understood
those rights and he did not have a problem talking to the officers confronting him.

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This interview lasted just over an hour. The agents did not tell NoyolaMartinez what the questions were going to be about nor did Noyola-Martinez inquire.
One of the rights advised Noyola-Martinez was that he could terminate the interview
at any time if he wanted to. The interview was not recorded. Noyola-Martinez did
not ask to end the questioning.
On September 18, SA Tavoliero wanted to determine the relationship
between Ayalacoria and Zermeno. SA Tavoliero asked Noyola-Martinez about his
relationship with those two individuals and how long he had been associated with
them. Noyola-Martinez indicated that he alternated between staying in Ayalacoria's
apartment and Zermeno's apartment. He said that Zermeno sold cocaine and
marijuana in the room identified as bedroom No. 2. SA Tavolario was not aware on
September 18 that Noyola-Martinez had been with Mr. Ayalacoria on September 15
when a box was brought to 3106 W. 33rd.
E.

Search of Apartment No. 1

On September 16, 2010 the agents transported Zermeno to his
apartment. SA Calderon, with the Internal Revenue Service Criminal Investigation
Division, waited with Zermeno while SA Tavoliero did a protective sweep in the
apartment.
The apartment is located in a multi-unit building. Apartment No.1 had
two bedrooms.

SA Tavoliero asked Zermeno if there were any controlled

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substances in his apartment and he indicated that there was marijuana and cocaine
in his bedroom. Tavoliero asked Zermeno where he kept his controlled substances
in his apartment. Zermeno directed him to bedroom No. 1.
SA Tavoliero proceeded first to bedroom No. 1 where he found about
13 grams of cocaine, an electronic scale, a pump shot gun, a small quantity of
marijuana and other paraphernalia. Zermeno denied selling methamphetamine and
cocaine but said he sold quantities of marijuana. Zermeno was taken into custody
for violation of the drug laws. Zermeno was told that the officers would secure the
door to Apartment No. 1 and not leave it open when they left.
Meanwhile officers were executing a search warrant for Mr. Ayalacoria's
apartment downstairs in Apartment No. 4.1 The search of Apartment 4 (Ayalacoria's
apartment) revealed marijuana and methamphetamine.
Zermeno understood that the search of his apartment would continue
while he was escorted to a police vehicle. At no time did Zermeno seek to revoke
his consent to search or limit it in anyway. Agents moved from searching Apartment
No.4 up to Apartment No. 1 to complete the consent search of Zermeno's apartment.
There was nothing readily visible in Apartment No. 1 that alerted SA
Tavoliero that there was more than one person living in the apartment. SA Tavoliero
believed that he asked Zermeno who had access and Zermeno did not indicate

1

Case No. 3:10-mj-118-JDR.

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anyone did. SA Tavoliero did not ask Zermeno anything about apartment No. 4.
Zermeno did not ask the agent any questions nor did he volunteer any information
about anyone living with him.
Jason Sherman is a Special Agent with the Bureau of Alcohol, Tobacco
and Firearms and Explosives. He assisted in the ongoing drug investigation. He
took photographs of the apartment during the execution of the consent search.
Throughout the apartment the officers found a lot of paperwork with Zermeno's
name on. He observed that the larger bedroom (designated No. 1) had a person’s
belongings spread throughout the room visibly indicating that the room was lived in.
This bedroom had a photograph of Zermeno, his daughter and his wife. The bed
looked like someone had just gotten out of it. There were a lot of clothes in the
closet and in the drawers of the dresser. There was no indication in the apartment
that Zermeno's wife or a female lived in the apartment.
In contrast, the second bedroom had no pictures on the walls or
decorations. The bed was completely made and the closet was blocked off by a
large TV armoire. It looked like a catch all room. This smaller bedroom (designated
No. 2) seemed to SA Sherman more like a multi purpose room containing an
"Eclectic gathering of things." It had a bed and bureau or desk with a laptop on it.
SA Sherman saw no visible indication on the second bedroom that it was being

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occupied by anyone as a bedroom. He testified that this room could be used as a
guest bedroom but It appeared that it was being used as a storage room.
The laptop computer was in the corner of the second bedroom. The
name on the computer was "Borrego." In the desk the agents found some cocaine.
On the TV stand they observed a wad of money and next to that a stack of money
that was rubber banded together.2 Next to that was an object wrapped in tin foil.
The TV stand was placed in front of the closet and the closet doors were somewhat
opened. Visible were tools and an old shirt hanging up as well as a white box. The
tools were those that would be used by a painter and Zermeno was reported to have
been employed as a painter. The box contained gallon size bags of marijuana.
The agent found a suitcase in the second bedroom that contained a
stack of bills held together by rubber bands, some deodorant and face cream. A
similar type of suitcase was located in Zermeno's bedroom. The suitcase in the
second bedroom had no baggage tag. When the agent first opened a pocket to the
suitcase revealing the money they did not come across the name Noyola-Martinez
on anything. In the main storage area of the suitcase they did locate a Mexican ID
card with the name Jose Manual Noyola-Martinez. One inside pocket of the suitcase
contained socks and underwear.

2

At the suppression hearing Noyola-Martinez identified currency found in
bedroom No. 2 as belonging to Zermeno.
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At the suppression hearing Noyola-Martinez testified that Zermeno lived
in one bedroom of Apartment No. 1 and a friend of his by the name of "Loter" (ph)
lived in the other bedroom. He testified that he had slept in that second room for two
nights before his arrest. He stated Zermeno told him he could sleep there while
"Loter" was in the process of removing all his things from that bedroom. Prior to
those two nights he had been sleeping on a sofa in the living room at Apartment
No. 1. On two or three occasions during this time he had slept at Borrego’s when
Zermeno had parties at his place.
The second bedroom did not have a key lock on it and the door was
opened during the day time and only partially closed at night. Noyola-Martinez
admitted that Zermeno would just walk into the room when he wanted to during the
daytime. Noyola-Martinez did not pay any monies to stay in the apartment. His
name was not on the lease.
When asked about his expectation of privacy in the bedroom by his own
attorney he responded "Well, I had only been there for two nights so I wasn't
expecting much of privacy. For the 15th -- with -- sorry. For the 50 previous days
I was sleeping in the living room so I couldn't expect to have any privacy. . . . . [A]ll
I did in that bedroom was sleep . . . . I never saw that room as my living quarters ."
Tr. 19. He added that he had moved into that room because Zermeno's friends
would come over and he didn't want to be a burden. He admitted that he had no

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clothes hanging in the closet and that his suitcase did not have a name tag on it.
During his interviews Noyola-Martinez never told the agents that he lived in
Zermeno's apartment although he did tell them that he had seen drugs used in the
second bedroom.
Conclusions of Law
A.

Statements of Defendant

Pursuant to Miranda v. Arizona, 384 U.S. 436 (1966) and Rhode Island
v. Innis, 446 U.S. 291, 300 (1980) a person must be advised of his Miranda rights
whenever he is subjected to custodial interrogation. The motion to suppress
statements was predicated upon the claim that the discovery from the government
did not inform the defense what was said to the defendant to obtain his waiver of his
Miranda rights.
Noyola-Martinez was advised of his Miranda rights in Spanish by SA
Bishop on September 16, 2010, prior to being questioned regarding his immigration
status and again by Agent Dojaque in Spanish before being questioned on
September 18, 2010 about possible involvement in illicit drugs. The Miranda
advisements were read to the defendant in Spanish from cards carried by the agents
who carefully went over each advisement line by line asking the defendant if he

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understood what was said. The advisements complied with Miranda v. Arizona,
supra and its progeny.3
A waiver of Fifth Amendment rights must be the "product of a free and
deliberate choice rather than intimidation, coercion, or deception" and "made with
a full awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it." Moran v. Burbine, 475 U.S. 412, 421
(1986). If the government establishes that a Miranda warning was given and that it
was understood by the suspect, the suspect's uncoerced statement establishes an
implied waiver. Berghuis v. Thompkins, 130 S.Ct. 2250 (2010).
Noyola-Martinez is a citizen of Mexico and the second interview took
place entirely in Spanish. The courts accepts the testimony of Ramon Dojaque,
Anchorage Police Detective, who read the Miranda rights to the defendant in
Spanish from a card (Exhibit 2).

Detective Dojaque testified that the defendant

stated that he understood his rights and was willing to speak to him. At no time did
the defendant say he did not understand what was being spoken. The interview
lasted about one hour and the defendant was in custody.
The defendant was not told what questions would be asked before he
was asked if he waived his Miranda rights. The detective told the defendant who he

3

The Miranda advisement cards in both English and Spanish used by the
agents were received in evidence as Government's Exhibits 1 and 2.
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worked for and that he could terminate the interview at any time. The defendant
argues that his waiver of Miranda rights was not voluntary because he was not
advised in advance of the topics for which he would be questioned. He had
previously been questioned about his illegal status in the United States and knew
that he was facing deportation charges. He was questioned by SA Tavoliero about
his possible involvement with illicit drugs. The interview took place in the same
location -- the Office of Homeland Security. He was asked interviewed about his
association with Enrique Zermeno and Jesus Ayalacoria. All of the questions asked
by SA Tavoliero were translated into Spanish by either SA Ty Bishop or Detective
Dojaque.
A suspect may implicitly waive his rights by answering an officer's
question(s) after receiving Miranda warnings. Terrovona v. Kincheloe, 912 F.2d
1176, 1179-80 (9th Cir. 1990). Whether the waiver is valid depends upon the totality
of circumstances including the background, experience and conduct of the
defendant. United States v. Doe, 155 F.3d 1070, 1074 (9th Cir. 1998)(en banc). "A
waiver is knowing and intelligent if, under the totality of the circumstances, it is made
with a 'full awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it.'" Doe, supra at 1074, quoting Moran
v. Burbine, 475 U.S. at 421. The waiver is voluntary if under the totality of the

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circumstances the statements were the product of a free and deliberate choice
rather than coercion or improper inducement. Doe, supra at 1074.
The defendant cites no case authority requiring the government to
advise a suspect in advance of the topics of inquiry prior to obtaining a valid waiver
of Miranda rights. The purpose of Miranda is to advise the suspect that he is not
required to submit to interrogation, that he may have an attorney present if he
chooses and that he can stop the questioning at any time. Noyola-Martinez was told
that he could stop the questioning at anytime. The Miranda advisement specifically
advised Noyola-Martinez that he had the right to remain silent and that he could
decide at any time to exercise his rights and not answer any questions or make any
statements.
The defendant was specifically asked if he understood the rights that
were explained. He was asked, having those rights in mind, if he was willing to talk
to the government agents at that time. At no time during the questioning did the
defendant seek to limit the questioning or decline to answer any further questions.
Nor did he seek to withdraw any of his consent previously given as the questioning
proceeded.

Nothing about the manner in which the interrogation took place

suggests that it was coercive or unfair to the defendant. Noyola-Martinez was not
misled by the agents as to the focus of interrogation. The defendant has not shown
a need to add to the Miranda warnings an advisement of the topic of questions to be

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asked or the crimes being investigated as a prerequisite to obtaining a valid waiver.
The waiver of Noyola-Martinez’s Miranda rights was made knowingly, voluntarily,
and intelligently. The motion to suppress statements is without merit and should be
denied.
B.

Evidence Seized From 3106 W. 33rd Avenue, Apt No. 1
1. Standing

In order to claim the protection of the Fourth Amendment a defendant
must demonstrate that he personally has an expectation of privacy in the place
searched, and that his expectation is reasonable. Minnesota v. Carter, 525 U.S. 83,
88 (1998); Rakas v. Illinois, 439 U.S. 128, 143 (1978). At the evidentiary hearing the
magistrate judge accepted the evidence that Noyola-Martinez had been an overnight
guest in Apartment No. 1 to afford him standing to move to suppress the evidence
seized from that apartment. See Mancusi v. DeForte, 392 U.S. 364 (1968) and
Minnesota v. Olson, 495 U.S. 91 (1990).
2. Consent Search
The evidence seized from the search that took place at Apartment No. 1
at 3106 W. 33rd Avenue on September 16, 2010 was done without a search warrant.
The government relies upon the consent of Enrique Zermeno obtained from
Zermeno after a traffic stop in which Zermeno was the driver and Noyola-Martinez
was the passenger.

During the search of the vehicle conducted by Agents

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Tavoliero and Calderon, Zermeno told the officers that he used marijuana and
cocaine.

SA Tavoliero asked Zermeno for consent to search his residence.

Zermeno consented with the stipulation that he be present during the search.
Zermeno signed a voluntary consent form prepared by SA Calderon.
About 1:30 PM the agents arrived at Zermeno's residence.

The

apartment was cleared and Zermeno identified his bedroom telling the agents where
to look for cocaine. SA Tavoliero found cocaine in bedroom No. 1, and Zermeno
was arrested. A search team that was executing a federal search warrant at
Apartment No. 4 at 3106 33rd Avenue continued the search of Apartment No. 1.
Officers found in the smaller bedroom cocaine, a digital scale,
marijuana, and a wad of cash wrapped in tin foil. Found in the same bedroom was
a suitcase containing cash, cell phones and documents relating to Noyola-Martinez
including a photo identification belonging Noyola-Martinez.

Found in the

kitchen/living room area of that apartment was marijuana, a digital scale and various
drug paraphernalia.
The defendant argues that when conducting a consent search the
officers have a duty to determine what areas of a place to be search are subject to
a claim of a privacy interest by someone other than the person who consented to the
search. He argues that under the circumstances in this case the law enforcement
agents should have asked Zermeno whether anyone else lived in his apartment, and

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inquired into the ownership, possession or control of each item or room sought to be
searched.
Initially the circumstances gave rise to the reasonable belief that the
entire apartment belonged to Zermeno and was under his control. The police had not
seen Noyola-Martinez enter Apartment No. 1. The protective sweep in the presence
of Zermeno aroused no reasonable suspicion that there was a house guest who had
only stayed there the previous two nights. Zermeno made no mention of a house
guest.
When law enforcement officers have no reason to suspect a second
tenant living in the residence, they may take an unqualified consent to search as to
items there at face value. The consent form authorized the officers to conduct a
complete search of Apartment No. 1 at 3106 W. 33rd Avenue.

It specifically

authorized the agents to take any “letters, papers, materials or any other items of
property” found there. The agents found no visible indicia that anybody else was
occupying that apartment. The presence of a guest room does not mean that it is
being used.
Zermeno stored items in the second bedroom. Zermeno freely entered
that room during the daytimes. The suitcase in that room was similar to a suitcase
observed in the apartment and bore no tag suggesting an overnight guest. NoyolaMartinez contests the validity of the third party consent given by Zermeno to search

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the room in which he had stayed as an overnight guest. In United States v. Matlock,
415 U.S. 164 (1974) the Supreme Court reiterated that a warrantless entry and
search by law enforcement officers does not violate a Fourth Amendment
prescription of “unreasonable searches and seizures” if the officers have obtained
the consent of a third party who possess common authority over the premises. The
court stated in Matlock supra at 171, n.7., “[c]ommon authority” rests “on mutual use
of the property by persons generally having joint access or control for most
purposes. . . .” The government bears the burden of establishing that common
authority.
Here, the government established Zermeno’s use, access and control
over the second bedroom for purposes of authority to consent to a search of that
location.

Noyola-Martinez did not enjoy exclusive control over the bedroom.

Rodriguez explained that the fourth Amendment assures not that no government
search of one’s abode will occur unless he consents but that no such search will
occur that is “unreasonable.” 497 U.S. at 183-184. The exclusionary rule protects
against introduction of evidence seized in violation of the Fourth Amendment.
The search of the closet in the second bedroom by the officers did not
violate Noyola-Martinez Fourth Amendment right. Rodriguez cites Maryland v.
Garrison, 480 U.S. 79 (1987) wherein a warrant supported by probable cause with
respect to one apartment was erroneously issued for an entire floor that was divided

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into two apartments. The Supreme Court upheld the search of the apartment not
properly covered by the warrant. In upholding the validity of the search the court
explained that it depended on whether the officers failure to realize the over breath
of the warrant was objectively understandable and reasonable. In Garrison the court
found that the objective facts available to the officers at the time suggested no
distinction between the suspects apartment and the third floor premises. Garrison,
supra at 88. I conclude that the defendant has failed to show that the officers
exceeded the scope of the written consent by searching each room in the apartment.
The officers justifiably relied on Zermeno’s apparent authority to search the entire
residence.
The Defendant’s Suitcase
The search of the suitcase in the second bedroom raises a different
concern. Courts have recognized that a suitcase is a type of container long
associated with privacy expectations. See for example United States v. SileniosCano, 959 F.2d 861, 865 (10th cir. 1992). That case involved a defendant who had
left his clothes in a suitcase at his girlfriends apartment.

Professor LaFave

characterizes an overnight bag or suitcase brought to the premises by an overnight
guest a deserving of a high degree of privacy. See 4 Wayne R. LaFave, Search and
Seizure, § 8.5(d), at 231 (4th Ed. 2004).

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Based on the evidence at the evidentiary hearing Noyola-Martinez had
a reasonable expectation of privacy in his closed suitcase which was located in the
second bedroom at Zermeno’s apartment. Zermeno did not have actual authority
to grant consent to allow the agents to search Noyola-Martinez’s suitcase. The
evidence does not show that Zermeno had any common authority over the suitcase.
Zermeno’s consent to search his home was not necessarily consent to
search a closed object within the home. In United States v. Matlock, 415 U.S. 164,
171-72 (1974), the Supreme Court held that when the government seeks to justify
a warrantless search by proof of voluntary consent, in the absence of proof that
consent was given by the property owner, it “may show that permission to search
was obtained from a third party who possessed common authority over or other
sufficient relationship to the premisses or effects sought to be inspected.” Common
authority here refers to mutual use of the property by a person generally having joint
access or control for most purposes. Zermeno’s consent to search his residence
was sufficient to allow a search of all the rooms based on the doctrine of common
authority. The United States cites no authority approving a search of a closed
container and the consequence of a general consent to enter the room in which it
was found. The burden of establishing the effectiveness of a third party’s consent
is upon the government. Illinois v. Rodriguez, 497 U.S. 177, 181 (1990).

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Although Zermeno did not have a common authority to grant permission
to search Noyola-Martinez’s suitcase the court examines whether the officers were
justified in relying upon Zermeno’s apparent authority. “When one person consents
to a search of property owned by another, the consent is valid if ‘the facts available
to the officer at the moment . . . warrant a man of reasonable caution in the belief
that the consent party has authority over the premises.’” United States v. Jenkins,
92 F.3d 430, 436 (6th Cir. 1996).

The court must examine the surrounding

circumstances to determine whether the facts presented at the time of the search
would “warrant a man of reasonable caution” to believe that Zermeno had common
authority over the property.
It seems clear that a reasonable officer would have found ambiguity in
the ownership of the suitcase and in Zermeno’s common authority to consent to the
search of it upon finding in the suitcase Noyola-Martinez’s Mexican identification.
This ID was found when the agent opened the suitcase itself. Tr. 115. Faced with
the ambiguous situation the agent proceeded with the search without making further
inquiry.
Had the officers kept Zermeno at the apartment during the balance of
the search they could have easily made inquiry of him as to the ownership or his
interest in the suitcase. Even after Zermeno had been removed from the premises
they could have sought his clarification since he was in their custody.

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Although SA Sherman may not have known the name “NoyolaMartinez” prior to the search of the suitcase, other officers certainly did as the
defendant had been arrested several days earlier at the traffic stop, Moreover, the
agent who obtained the consent from Zermeno was the agent who had taken
Noyola-Martinez into custody. See United States v. Waller, supra and cases
discussed therein about an officer’s duty to inquiry in ambiguous situations.
The government may argue that when Noyola-Martinez’s ID was found
in the suitcase they had already discovered a wad of cash in one of the side pockets
of the suitcase. The money was the first item found in the suitcase. Tr. 114.
Currency itself is not contraband. Before the officer seized this currency they should
have sought to resolve the ambiguous situation or sought a separate search warrant.
Therefore, this court should hold that the agents’ warrantless entry into NoyolaMartinez’s suitcase without further inquiry was unlawful under the Fourth
Amendment. Evidence seized from the suitcase should be suppressed. IT IS SO
RECOMMENDED. In all other respects the motions to suppress should be denied.

DATED this 22nd day of February, 2011, at Anchorage, Alaska.

/s/ John D. Roberts
JOHN D. ROBERTS
United States Magistrate Judge

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Pursuant to D.Ak.L.M.R. 6(a), a party seeking to object to this proposed
finding and recommendation shall file written objections with the Clerk of Court no
later than NOON on 2/28/2011. The failure to object to a magistrate judge's findings
of fact may be treated as a procedural default and waiver of the right to contest
those findings on appeal. McCall v. Andrus, 628 F.2d 1185, 1187-1189 (9th Cir.),
cert. denied, 450 U.S. 996 (1981). The Ninth Circuit concludes that a district court
is not required to consider evidence introduced for the first time in a party's objection
to a magistrate judge's recommendation United States v. Howell, 231 F.3d 615 (9th
Cir. 2000). Objections and responses shall not exceed five (5) pages in length, and
shall not merely reargue positions presented in motion papers. Rather, objections
and responses shall specifically designate the findings or recommendations objected
to, the basis of the objection, and the points and authorities in support. Response(s)
to the objections shall be filed on or before NOON 3/7/2011.

The parties shall

otherwise comply with provisions of D.Ak.L.M.R. 6(a).
Reports and recommendations are not appealable orders. Any notice
of appeal pursuant to Fed.R.App.P. 4(a)(1) should not be filed until entry of the
district court's judgment. See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).

10-cr-123-HRH-JDR NOYOLA-MARTINEZ @19 RR Re MOTION to Suppress_mtd.wpd

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