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United States of America v. Mark C. Burge

June 16, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
MARK C. BURGE, DEFENDANT.



The opinion of the court was delivered by: Richard Mills, U.S. District Judge:

E-FILED Thursday, 16 June, 2011 11:12:51 AM Clerk, U.S. District Court, ILCD

ORDER ADOPTING REPORT AND RECOMMENDATION

This matter is before the Court the Report and Recommendation [d/e 18] entered by U.S. Magistrate Judge Byron G. Cudmore, and on Defendant Mark C. Burge's Motion to Suppress Evidence Arising from Invalid Search Warrant and Motion to Suppress Statements [d/e 11].

In the Report and Recommendation, Judge Cudmore recommends denying the Defendant's Motion to Suppress.

The Defendant has filed Objections [d/e 19] to the Report and Recommendation. In addition, the Defendant had the Court Reporter prepare a Transcript [d/e 22] of the Suppression Hearing held on April 29, 2011. The Government has filed a Response to the Defendant's Objections [d/e 21].

After careful consideration, and after reviewing the Exhibits and the Transcript of the Suppression Hearing, the Court adopts Judge Cudmore's Report and Recommendation.*fn1

I. OBJECTION-SUFFICIENCY OF AFFIDAVIT TO ESTABLISH PROBABLE CAUSE

The Defendant claims that the Affidavit [d/e 13-1] submitted by Master Sergeant Tod Dowdy, Illinois State Police, contained insufficient information to establish probable cause for the state court judge to issue a search warrant.

The U.S. Court of Appeals for the Seventh Circuit has stated the following regarding a magistrate's finding of probable cause:

A magistrate's determination of probable cause is to be given considerable weight and should be over-ruled only when the supporting affidavit, read as a whole in a realistic and common sense manner, does not allege specific facts and circumstances from which the magistrate could reasonably conclude that the items sought to be seized are associated with the crime and located in the place indicated.

United States v. Otero, 495 F.3d 393, 397 (7th Cir. 2007) (quoting United States v. Wiley, 475 F.3d 908, 914-15 (7th Cir. 2007)).

A. Flight Details

The Defendant has alleged that there were insufficient details in the Affidavit regarding the fly-over conducted by the Illinois State Police on August 16, 2010:

[ ] The affiant states that he observed several cannabis plants growing on the property on a fly-over and has numerous hours spotting and locating plants. The Defendant claims that this is a conclusion without foundation;

[ ] The affiant does not indicate the weather conditions which might affect his observation, does not state at what height these plants were observed, nor the speed of the aircraft at the time of the observation;

[ ] The affiant does not indicate whether they were observed only once during the fly-over and does not describe their specific ...


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