United States District Court, D. Nevada
ORDER (MOT. FOR JOINDER - ECF NO. 877)
A. LEEN UNITED STATES MAGISTRATE JUDGE
the court is Defendant O. Scott Drexler's Motion for
Joinder (ECF No. 877), filed October 14, 2016, and his Sealed
Exhibit (ECF No. 1022), filed November 23, 2016. This Motion
is referred to the undersigned pursuant to 28 U.S.C. §
636(b)(1)(A) and LR IB 1-3 and 1-7 of the Local Rules of
Motion seeks to join the substantive arguments set forth in
Defendant Micah McGuire's Motions to Suppress (ECF Nos.
706, 708). However, Drexler adds two points “to the
jurisdictional motion to suppress.” The joinder argues
that (1) a magistrate judge's powers are expressly
limited to the federal district that appointed the magistrate
judge, and (2) the absence of federal jurisdiction cannot be
cured by a procedural means.
Fourth Amendment secures “the right of the people to be
secure in their persons, houses, papers, and effects against
unreasonable searches and seizures.” U.S. Const. amend.
IV. The Fourth Amendment protects reasonable and legitimate
expectations of privacy. Katz v. United States, 389
U.S. 347, 350-51 (1967). The Fourth Amendment protects
“people, not places.” Id. at 351.
Evidence obtained in violation of the Fourth Amendment, and
evidence derived from it may be suppressed as the
“fruit of the poisonous tree.” Wong Sun v.
United States, 371 U.S. 471, 484-87 (1963); United
States v. McClendon, 713 F.3d 1211, 1215 (9th Cir.
Fourth Amendment rights are personal rights, they may not be
vicariously asserted. Rakas v. Illinois, 439 U.S.
128, 133-34 (1978). To challenge the validity of the search
warrant, a defendant must show he personally had (i) a
property interest protected by the Fourth Amendment that was
interfered with, or (ii) a reasonable expectation of privacy
that was invaded by the search. United States v.
Lopez-Cruz, 730 F.3d 803, 807 (9th Cir. 2013) (quoting
United States v. Padilla, 508 U.S. 77, 82 (1993)).
When a person has no ownership interest in the place or thing
searched, he must have a reasonable expectation of privacy to
claim a violation of his Fourth Amendment rights. Lyall
v. City of Los Angeles, 807 F.3d 1178, 1187 (9th Cir.
Supreme Court has enunciated a two-part test to determine
whether an expectation of privacy is reasonable and
legitimate. Katz, 389 U.S. at 361. First, the
individual must have an actual subjective expectation of
privacy, and second, society must recognize that expectation
as objectively reasonable. Id.; Lopez-Cruz,
730 F.3d at 807. To say a defendant lacks Fourth Amendment
standing is to say that “his reasonable
expectation of privacy has not been infringed.”
United States v. SDI Future Health, Inc., 568 F.3d
684, 695 (9th Cir. 2009) (citing United States v.
Taketa, 923 F.2d 665, 669 (9th Cir. 1991)). The
defendant bears the burden of establishing, under the
totality of the circumstances, that the search violated his
legitimate expectation of privacy in the place searched or
the things seized. Rakas, 439 U.S. at 143;
United States v. Davis, 332 F.3d 1163, 1167 (9th
Amendment rights are personal and cannot be vicariously
asserted by others whose own legitimate expectation to
privacy have not been invaded. Drexler lacks standing or
capacity to contest the validity of the warrant at issue in
McGuire's motions. He has not met his burden of showing
he had a legitimate expectation of privacy society accepts as
reasonable in the content of McGuire's Facebook account.
November 22, 2016, counsel for Mr. Drexler filed a sealed a
copy of a search warrant, search warrant application and
affidavit, and related documents for a search warrant issued
to search Drexler's Facebook account. The documents were
filed as an exhibit to his “joinder to Mr.
McGuire's Motion to Suppress.” (ECF No. 1022). The
exhibit was filed without any express assertion that Drexler
intended to assert a violation of his own Fourth Amendment
rights based on the same arguments raised by McGuire. It
contained no explanation or argument that he was similarly
situated to McGuire.
extent Drexler intended the exhibit to assert a violation of
his own Fourth Amendment rights, it was not timely filed. The
case management order entered in this case on April 26, 2016
(ECF No 321) established an October 3, 2016 deadline for
filing pretrial motions required by Rule 12 of the Federal
Rules of Criminal Procedure and LCR 12(1)(b). A motion to
suppress is a motion which must be filed before trial in
compliance with the court's case management order.
See Fed R. Crim. P. 12(b)(3)(C); LCR 12(1)(b)(8).
This court has previously denied untimely requests for
joinder. See July 6, 2016 Order (ECF No. 577)
(noting that “requests for joinder are not a means to
extend the pretrial motions deadlines established in the Case
Management Order”); see also, e.g., United States
v. Sperow, 2008 WL 5054580, at *2 (D. Idaho July 23,
2008) (holding that defendant could not circumvent a
scheduling order by moving a month later to join in his
codefendants' motions). The court signed an order
unsealing all search warrants issued in connections with the
defendants in this case on April 29, 2016 (ECF No. 346).
Thus, Drexler has had more than ample opportunity to file a
timely motion to suppress. Filing an exhibit more than seven
weeks after the deadline for filing pretrial motions may not
be used to avoid a case management deadline imposed by the
reviewed and considered the matter, IT IS ORDERED, that
Drexler's Motion to Join in McGuire's Motions ...