UNITED STATES v. RIVERA PITRE (2024)

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING MOTION TO SUPPRESS

Before the Court is defendant Jan Luis Rivera-Pitre (“Rivera”)’s motion to suppress a firearm and ammunition pursuant to the Fourth Amendment. (Docket No. 17.) The Court referred this matter to Magistrate Judge Bruce J. McGiverin for a report and recommendation (“R&R”). (Docket Nos. 18 and 19.) The magistrate judge held an evidentiary hearing, (Docket No. 38), and issued a thorough R&R recommending that the Court deny Rivera's motion to suppress. (Docket No. 62); United States v. Rivera-Pitre, Case No. 23-209, 2024 WL 193960, 2024 U.S. Dist. LEXIS 12207 (D.P.R. Jan. 18, 2024) (McGiverin, M. J.). Rivera objected, and the United States responded. (Docket Nos. 66 and 67.) For the reasons set forth below, the R&R is ADOPTED. (Docket No. 62.) Accordingly, Rivera's motion to suppress is DENIED. (Docket No. 17.)

I. Background

On May 11, 2023, United States Probation Officers Linda Pérez (“Pérez”) and Rubén Vélez (“Vélez”) arrived at Rivera's residence in a public housing project. Rivera-Pitre, 2024 WL 193960, at *––––, 2024 U.S. Dist. LEXIS 12207, at *2. The probation officers observed that Rivera had installed security cameras on the exterior of his apartment, an uncommon practice at this vicinity. Id. at at *––––, 2024 U.S. Dist. LEXIS 12207, at *14. Because no one answered the door, the probation officers called Rivera. Id. at *––––, 2024 U.S. Dist. LEXIS 12207, at *2. Rivera then opened the door and allowed the probation officers to enter his apartment. Id.

Subsequently, Rivera disclosed that his girlfriend, Coral Del Mar (“Del Mar”), was in a bedroom. Id. Probation Officers Pérez and Vélez then asked to meet Del Mar, and to walk through the apartment. Id. Rivera opened the closet doors inside the first two bedrooms. Id.

The probation officers encountered Del Mar and her son inside the third bedroom. Id. Probation Officer Pérez once more requested that Rivera open the closet door. Id. Rivera complied. Id. Probation Officer Pérez observed a firearm and a firearm magazine on a shelf inside the closet. Id. Rivera attempted to cover the firearm with a plastic bag. Id. The probation officers intervened, however, and called the police to arrest Rivera. Id.

On May 18, 2023, a grand jury returned an indictment charging Rivera with being a prohibited person (a felon) in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). (Docket No. 1.) Rivera moved to suppress the firearm and ammunition, contending that the probation officers lacked reasonable suspicion to search the closet. (Docket No. 17 at p. 5.) Magistrate McGiverin conducted a suppression hearing, where Probation Officers Pérez and Vélez proffered extensive testimony. (Docket No. 38.) The parties filed post-hearing briefs. (Docket Nos. 55 and 58.)

Magistrate McGiverin then issued the concomitant R&R on January 18, 2024, recommending that Rivera's motion to suppress be denied. (Docket No. 62.) Rivera objects to the factual findings and legal conclusions of the R&R. (Docket No. 66.)

II. Standard of Review

A district court may refer a pending motion to a magistrate judge for a report and recommendation. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(a); Loc. Rule 72(b). A party may file written objections to the magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); Loc. Rule 72(d).

A party that files a timely objection is entitled to “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). An issue not raised before the magistrate judge may be deemed waived by the district court. Borden v. Sec. of Health & Human Servs., 836 F.2d 4, 6 (1st Cir. 1987); see also Paterson-Leitch Co., Inc. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990–91 (1st Cir. 1988) (“[A]n unsuccessful party is not entitled as of right to de novo review by the judge of an argument never seasonably raised before the magistrate.”).

In conducting its review, the district court is free to “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see Loc. R. 72(d); Álamo-Rodríguez v. Pfizer Pharms., Inc., 286 F. Supp. 2d 144, 146 (D.P.R. 2003) (Domínguez, J.). “The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1). Furthermore, the Court may accept those parts of the report and recommendation to which the parties do not object. See Templeman v. Chris Craft Corp., 770 F.2d 245, 247–48 (1st Cir. 1985); Hernández-Mejías v. Gen. Elec., 428 F. Supp. 2d 4, 6 (D.P.R. 2005) (Fusté, J.).

III. Discussion

The magistrate judge's recommendation is based on two legal conclusions. Rivera-Pitre, 2024 WL 193960, at *–––– , 2024 U.S. Dist. LEXIS 12207, at *2. First, Probation Officer Pérez conducted a search of the closet. Id. at *––––, 2024 U.S. Dist. LEXIS 12207, at *5-6. Second, Rivera consented to the search by “[opening] the closet voluntarily.” Id. at *3, 2024 U.S. Dist. LEXIS 12207, at *7.

After providing comprehensive legal argument in support of these conclusions, the magistrate judge noted that he “need go no further.” Id. at *3, 2024 U.S. Dist. LEXIS 12207, at *8. The R&R “address[ed] the parties remaining arguments,” however, “in the interest of efficiency.” Id. In dicta, the magistrate judge held that “even if [Probation Officer Pérez] did not seek [Rivera's] permission to open the closet door, she had reasonable suspicion to open it.” Id. at *5, 2024 U.S. Dist. LEXIS 12207, at *15 (noting that “officers need only reasonable suspicion, not probable cause, to search a probationer's home”) (citing Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987)). The following circumstances established the existence of reasonable suspicion: (1) the presence of Del Mar and her son suggest that Rivera may have violated conditions of his supervised release (e.g. changing living arrangements without notifying the USPO); (2) the location of Rivera's apartment in a high crime area; (3) Rivera's criminal history (a conviction for fentanyl trafficking and dismissed murder charges); (4) Rivera had installed security cameras at his apartment (a “rare” precaution in a public housing project), and (5) Rivera's delay in answering the door. Id. at *5, 2024 U.S. Dist. LEXIS 12207, at *15-16. The R&R also “recommended finding no exigent circumstances warrant[ing] a protective sweep.” Id. at *6, 2024 U.S. Dist. LEXIS 12207, at *19. Lastly, the magistrate judge rejected the United States’ argument regarding the good faith exception. Id. at *––––, 2024 U.S. Dist. LEXIS 12207, at *20.

Rivera sets forth five objections to the R&R. (Docket No. 66.) First, Rivera asserts that Probation Officer Pérez opened the closet door without his consent. Id. at p. 1. Second, he argues that Probation Officer Pérez's testimony is unreliable. Id. at p. 2. Third, Rivera alleges that the firearm was not in plain view. Id. Fourth, Rivera argues that Del Mar's presence is irrelevant to the Court's Fourth Amendment analysis. Id. Fifth, the magistrate judge allegedly erred in finding that the probation officers had reasonable suspicion to search the closet. Id.

The United States responded to Rivera's objections, contending that the magistrate judge arrived at the correct legal conclusion. (Docket No. 67.) It argued, however, that the magistrate judge erred in determining that the probation officers “could not have lawfully opened the bedroom closet door as part of a protective sweep.” Id. at. p. 1

A. Rivera Consented to the Search of the Closet

Rivera contends that he opened the closet door not on his own volition, but “at the will of [Probation Officer Pérez].” Id. at *3, 2024 U.S. Dist. LEXIS 12207, at *7. The R&R notes, however, that Rivera's conditions of supervised release require that he need only submit to a search “based on reasonable suspicion of contraband or evidence of a violation of a condition of release.” Id. at *3, 2024 U.S. Dist. LEXIS 12207, at *7 (citing Special Condition No. 6); see United States v. Rivera-Pitre, Case No. 18-346 (GAG), Docket No. 110 at p. 4) (Standard Condition No. 6: “You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation officer to take any items prohibited by the conditions of your supervision that he or she observes in plain view.”). Rivera's subjective interpretation of these conditions are irrelevant. Id. (citing Robbins v. MacKenzie, 364 F.2d 45, 49-50 (1st Cir. 1966) (“Bowing to events, even if one is not happy about them, is not the same thing as being coerced.”)). Accordingly, Rivera's objection regarding his alleged lack of consent is not persuasive.

B. Rivera's Credibility Objections

Rivera's second and third objections attempt to discredit the testimony proffered by Probation Officer Pérez. (Docket No. 66 at p. 2.) First, Rivera contends that the magistrate judge erred in finding Probation Officer Pérez credible. Id. He offers no evidence in support of this assertion. Id. Instead, he claims that a photo depicting Probation Officer Vélez near the closet proves that Probation Officer Pérez could not have seen the firearm from her vantage point. Id. Second, Rivera “objects to the Court's finding that the firearm was in plain view because [Probation Officer Pérez's] testimony is unreliable.” Id. at p. 2. These allegations are based only on speculation and conjecture. Consequently, Rivera's second and third objections are meritless.

C. Objections to Dicta

Rivera's fourth and fifth objections concern the magistrate judge's reasonable suspicion analysis. (Docket No. 66 at p. 3.) The United States objects to the protective sweep analysis, but requests that the Court adopt the magistrate judge's recommendation to deny Rivera's motion to dismiss. (Docket No. 67.) These objections constitute dicta. Accordingly, the Court need not adopt or deny the reasonable suspicion and protective sweep analyses. See Davis v. Post Univ., Inc., 497 F. Supp. 3d 1252, 1255 (S.D. Fla. 2019) (“Although Plaintiff objects to certain dicta in the Report, it is not necessary for the Court to adopt such dicta.”); In re Harris, Case No. 21-9946, , 2023 WL 2139688, at *2, 2023 U.S. Dist. LEXIS 28419, at *4 (S.D.N.Y. Feb. 20, 2023) (“The Court need not join in that dicta in order to adopt the R&R's recommendation that the motion to dismiss be denied and so it does not do so.”). Adoption of the R&R rests solely on the legal conclusions pertaining to Rivera's consent for the probation officers to search the closet.

IV. Conclusion

For the reasons set forth above, the Court ADOPTS the magistrate judge's report and recommendation that Rivera's motion to suppress be denied. (Docket No. 62.) Accordingly, Rivera's motion to suppress is DENIED. (Docket No. 17.)

IT IS SO ORDERED.

BESOSA, Senior District Judge.