USA v. Foster

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
LUKE EDWARD FOSTER,
Defendant.
Case No. 3:21-cr-00114-SLG
ORDER RE FINAL REPORT AND RECOMMENDATION ON MOTION TO
SUPPRESS
Before the Court at Docket 36 is Defendant Foster’s Motion to Suppress
Evidence from Unreasonable Search. 	The motion was referred to the Honorable
Magistrate Judge Matthew M. Scoble. 	Judge Scoble held oral argument on the
motion,1 and at Docket 47 issued his Final Report and Recommendation on Motion
to Suppress in which he recommended that the motion be denied. 	Defendant
Foster filed objections to the Report and Recommendation at Docket 50; the
Government did not file a response.
The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1). That
statute provides that a district court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.”2 A court is
1 Docket 44.
2 28 U.S.C. § 636(b)(1).
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to “make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.”3 However, §
636(b)(1) does not “require district court review of a magistrate’s factual or legal
conclusions, under a de novo or any other standard, when neither party objects to
those findings.”4
The Magistrate Judge recommended that the Court deny the Motion to
Suppress Evidence from Unreasonable Search. 	Based on the Court’s review of
the Final Report and Recommendation, the Court finds as follows:
The Court ADOPTS Sections I and II of the report, (Motion Presented and
Factual History) as to which no objection was made. 	With respect to Section III,
although no objection was made to that section, the Court declines to adopt the
Fourth Amendment analysis set forth by the Magistrate Judge at pages 7 through
19 of the Final Report and Recommendation. Rather, the Court assumes, without
deciding, that the Government conducted a Fourth Amendment search when it
acquired Mr. Foster’s cell site tower data.
Section IV addressed the validity of the June 2021 warrants. The Magistrate
Judge concluded that the warrants met the statutory requirements of 18 U.S.C. §
2703(d) 	as 	well 	as 	the 	probable 	cause 	standard 	required 	by 	the 	Fourth
Amendment. The judge then concluded that the warrants were “narrowly tailored,
3 Id.
4 Thomas v. Arn, 474 U.S. 140, 150 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003).
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circumspect, 	sought 	no 	substantive 	communications, 	and 	was 	therefore 	a
reasonable search under the Fourth Amendment.”5
Defendant objected to this portion of the report, maintaining that “the
government failed to sufficiently articulate how the requested search would be
likely to turn up evidence that a specific individual committed the vandalism being
investigated.”6 	The Court has reviewed de novo the search warrant applications
and finds that the Government did sufficiently articulate how the cell towers
servicing the locations described in the applications would likely contain records of
cellular activity from the phone used by the subject, based both on the applicant’s
training and experience, “as well as the surveillance video depicting the SUBJECT
using a cellular telephone at the Anchorage Jewish Museum.”7 	Accordingly, the
objection to Section IV regarding the validity of the June 2021 warrants is
OVERRULED and the Court adopts that portion of the report in its entirety,
excepting only the last paragraph of that section, which is addressed below.
In the last paragraph of Section IV, the Magistrate Judge concluded that
even if the search warrants were deemed invalid, “Leon’s good-faith exception
would nonetheless apply.”8 	Defendant objected to this paragraph, asserting that
5 Docket 47 at 22.
6 Docket 50 at 1.
7 Docket 36-2 at 19, ¶ 20.
8 Docket 47 at 23 (citing United States v. Leon, 468 U.S. 897, 919-21 (1984)).
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this “conclusory finding” is unwarranted, particularly as Defendant requested an
evidentiary hearing to put the warrant applicant under oath, which request the
Magistrate Judge denied.9 	In light of the Court’s ruling that the search warrants
are constitutionally and statutorily valid, the Court declines to adopt this analysis,
as it is unnecessary to the Court’s determination.
For the foregoing reasons, the Court adopts those portions of the Final
Report and Recommendation as set forth above, and IT IS ORDERED that the
Motion to Suppress Evidence from Unreasonable Search at Docket 36 is DENIED.
DATED this 11th day of January, 2023, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
9 Docket 50 at 3.
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