Opinion
3:23-CR-00056-JMK-MMS-1
03-19-2024
UNITED STATES OF AMERICA, Plaintiff, v. SAMUEL LEBRON, Defendant.
REPORT AND RECOMMENDATION ON MOTION TO SUPPRESS [DKT. 35] ORDER DENYING MOTION FOR EVIDENTIARY HEARING [37]
MATTHEW M. SCOBLE, CHIEF U.S. MAGISTRATE JUDGE
I. MOTION PRESENTED
The indictment, filed in June 2023, charges Samuel Lebron (“Lebron”) with one count of possession of controlled substances with intent to distribute,one count of possession of a firearm in furtherance of drug trafficking,one count of possession of a firearm and ammunition by a convicted felon,an enhanced statutory penalty, and a criminal forfeiture allegation.
21 U.S.C. § 841(a)(1) and (b)(1)(A), (B), and (C).
21 U.S.C. § 853(a)(1) and (2), 28 U.S.C. § 2461(c), and Fed. R. Crim. P. 32.2(a).
Lebron filed a motion to suppress evidence found on his person and in his residence, as well as unspecified statements pursuant to Miranda. Dkt. 35. In support of this motion, Lebron argues (1) that the Pretrial Enforcement Division (“PED”) officers lacked reasonable suspicion under Terry to detain and frisk him because the basis of the suspicion was an unsubstantiated anonymous tip; (2) that the pat down exceeded its permissible scope when law enforcement seized items from his person; (3) that, after excising the items from his pockets from the analysis, the subsequent arrest was not supported by probable cause; (4) that Alaska law requires cause for its officers to arrest a probationer; (5) that Lebron was subject to an interrogation in violation of Miranda; (6) that the search of his residence was unreasonable because Lebron's privacy interest outweighed the state's interest in this instance. See generally, id.
The government responded that Terry is inapplicable to this matter. Dkt. 36. Instead, it directs this Court to law pertaining specifically to probationers, but nevertheless, it argues that the tip provided reasonable suspicion and that Lebron made no statements that would implicate Miranda. Id. The government also argued that this matter can and should be resolved without an evidentiary hearing.
Lebron, in a separate motion, moved this Court for an evidentiary hearing on his motion to suppress. Dkt. 37. He argued that there are contested issues of fact and gaps within discovery that could be resolved with such a hearing. Id.
No evidentiary hearings were held, and this Court finds that one would not be helpful for the resolution of this matter. Accordingly, and for reasons detailed more thoroughly below, this Court DENIES Lebron's motion for an evidentiary hearing at Dkt. 37.
This Court hereby issues its Report and Recommendation regarding Lebron's Motion to Suppress. Dkt. 35. For the reasons below, the Motion to Suppress should be GRANTED in part and DENIED in part. 28 U.S.C. § 636(b)(1)(B).
II. FACTUAL BACKGROUND
The following statement of facts is extracted from the parties' briefs on this motion. While an evidentiary hearing has not been held to establish these facts, this Court will accept the parties' representations where they overlap.
On February 24, 2023, Alaska PED officers and state probation officers went to Lebron's residence to conduct a wellness check/follow-up on a tip that he had aimed a firearm at a woman, threatened to shoot her, and that there were controlled substances in his residence. However, when the officers arrived, Lebron was not home.Instead, he was reporting to a PED office. Id. The officers traveled there, searched his person, and found capsules which were believed to contain controlled substances, a large sum of cash, and personal effects such as his phone, wallet, and keys.Afterwards, the officers transported Lebron back to his residence and used a key provided by him to enter.Inside, the officers found narcotics and a firearm, and Anchorage Police Department sought and obtained a search warrant. Id. The government represents that it found a loaded Glock 10mm pistol, over 500 grams of methamphetamine, 100 grams of fentanyl, almost 50 grams of heroin, as well as “some LSD,” scales, and transaction ledgers. The defendant does not reference these.
Dkt. 35 at 2-3; Dkt. 36 at 2-3.
Dkt. 35 at 2; Dkt. 36 at 2.
Dkt. 35 at 4; Dkt. 36 at 3.
Dkt. 35 at 5; Dkt. 36 at 3.
Dkt. 36 at 3.
During this time, the defendant was on probation for a state charge of domestic violence with “L.S.” as the victim.The government argues that this is the same victim as the person referenced in the tip which precipitated PED officers' contact with him, and Lebron appears to acknowledge that. Id. One of the conditions of Lebron's probation was as follows: “The defendant shall submit to a search of their person, personal property, residence, vehicle, or any vehicle over which they have control, for the presence of illicit drugs or drug paraphernalia.”
Alaska v. Lebron, 3AN-21-00896CR; Dkt. 35 at 2 n.1; Dkt. 36 at 2.
Dkt. 35 at 2 n.1; Dkt. 36 at 2.
Dkt. 35, Ex. 3 at 4.
III. DISCUSSION
Lebron has moved to suppress certain evidence and statements and has separately requested an evidentiary hearing. While Lebron presented many arguments in the alternative for this Court to consider, he has failed to overcome the hurdle that presents itself to probationers: a dramatically decreased expectation of privacy. Because the resolution of this motion is framed with that limitation, the facts that could be developed with an evidentiary hearing would not materially alter this Court's analysis. Instead, to the extent that additional information is needed by the defendant, he has different avenues to pursue.
a. An evidentiary hearing is unnecessary.
In a separate motion, Lebron asked this Court to conduct an evidentiary hearing. Lebron advances two specific arguments in support of having a hearing: (1) that the government equates PED officers with state probation, and that, without offering authority, these two groups have different zones of authority under Alaska law; and (2) that he lacks information regarding Lebron's interactions with law enforcement at the PED office, such as whether he was detained initially, how the pat down was performed, and whether he was questioned. Id.
His substantive motion did not expressly request an evidentiary hearing.
Dkt. 37.
The government did not respond to this motion, but it separately argued that one was unnecessary in response to Lebron's substantive motion. The government argued that the motion offered only legal questions, rather than material factual disputes. Id.
Dkt. 36 at 8-9.
This Court agrees with the government, but it has its own observations. First, much of the information Lebron seeks is in his possession or knowledge. His counsel is able to interview him and provide an affidavit for this Court to consider. If the government were to then offer a different account, then the disparities could be resolved with an evidentiary hearing. However, no such proffer was made, and the purpose of an evidentiary hearing is to resolve factual disputes, not to substitute for investigation or the discovery process. This Court is unconvinced that any difference in the scope of authority between PED officers and state probation officers has a material effect on this Court's analysis. For the reasons stated infra, most of the facts that could be established by such a hearing would not inform the resolution of the case because Lebron erroneously relies on Terry instead of case law specific to probationers. As such, this Court denies Lebron's motion for an evidentiary hearing.
b. Lebron's condition of release should not be read to require probable cause.
Lebron's condition of release should be read as waiving the requirement of probable cause. While it could have been written in a clearer way, this Court finds that the more probable reading of the condition lends itself to this interpretation, and that the rule of lenity does not alter this analysis.
Neither party engaged in a full construction analysis on what this Court believes to be a critical issue, if not the critical issue, for this motion's resolution, but because construction is a matter of law, this Court is equipped to address it, nonetheless. The relevant condition reads as follows: “The defendant shall submit to a search of their person, personal property, residence, vehicle or any vehicle over which they have control, for the presence of illicit drugs or drug paraphernalia.” The plain text of this condition does not indicate whether law enforcement is required to have probable cause before conducting such a search.
Dkt. 35, Ex. 3 at 4.
“Under Alaska law, ambiguity exists when the contract as a whole and the extrinsic evidence support differing reasonable interpretations.” A contract is not ambiguous merely because parties disagree as to its meaning. Instead, “ambiguity is found to exist ‘only when the contract, taken as a whole, is reasonably subject to differing interpretations.'” Id.
Allstate Ins. Co. v. Ellison, 757 F.2d 1042, 1044 (9th Cir. 1985).
Jarvis v. Aetna Cas. & Sur. Co., 633 P.2d 1359, 1363 (Alaska 1981).
This Court is guided by a few maxims of construction.
• Omitted-case canon. “[A] matter not covered is to be treated as not covered.” Silence, in other words, can be dispositive. If a meaning is not conveyed in the text of a provision, courts are to be hesitant to enforce such a meaning.
• Whole-text canon. Courts are “to consider the entire text, in view of its structure and of the physical and logical relation of its many parts.” It is not enough for a court to simply focus on the provision at issue, but instead, it should consider the entirety of the legal document to determine what its entire meaning conveys.
• The presumption against surplusage. Words and clauses are presumed to have meanings. “If possible, every word and every provision is to be given effect [. . .] None should be ignored. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no
consequence.”“[W]ords with no meaning-language with no substantive effect-should be regarded as the exception rather than the rule.” Id. at 178.
• Lenity. When there is a significant power imbalance, a contract of adhesion, or a public policy favoring a particular party, ambiguities in a provision may be read against one of the parties. In the criminal context, ambiguities may be construed in favor of the defendant.
• Mandatory vs. permissible language. “Shall” imposes a duty, while “may” grants discretion.
A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 93 (2012).
GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC, 140 S.Ct. 1637, 1645 (2020).
Reading Law, supra n.20 at 167.
United States v. Lopez, 998 F.3d 431, 440 (9th Cir. 2021).
Reading Law, supra n.20 at 174.
Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 553 (9th Cir. 1984), abrogated on other grounds by DaVinci Aircraft, Inc. v. United States, 926 F.3d 1117 (9th Cir. 2019); United States v. Spear, 753 F.3d 964, 968 (9th Cir. 2014) (finding that a contract prepared by the government should be construed against it because it has “steadfastly applied the rule that any lack of clarity in a plea agreement should be construed against the government as drafter.”) (cleaned up).
Reading Law, supra n.20 at 112.
With these canons of construction in mind, this Court agrees with the government that probable cause is not required pursuant to this special condition. First, Lebron errs in how he presents these conditions of release. Read in their entirety, these conditions impose duties on him, rather than limitations on the government. With that framing in mind, this condition makes more sense. The condition reads that Lebron “shall submit to” such searches without reference to probable cause. Adding a qualifier here would only condition when Lebron had to comply, rather than limiting when the government could demand a search. Further, the lack of mention of probable cause cuts against Lebron here. As currently written, Lebron must submit to these searches, without limitation. Without indication in the text, this Court is reluctant to read in a qualifier that is not suggested in it.
Further, it is ordinarily the case that law enforcement needs probable cause to search non-probationers. If this condition were to include a probable cause requirement, it would have no effect, rather it would place Lebron in the position of any non-probationer. This Court is reluctant to read this condition in such a way as to render it meaningless.
However, this Court notes that Lebron was a probationer and is here a criminal defendant. The power imbalance between the state and Lebron sufficiently warrants the Court construing probation term against the government when ambiguity persists after applying other canons of construction. The applicability of this canon is limited. When contracts are ambiguous, this is but one of many considerations, and it should not trump an otherwise much more likely interpretation. Here, ambiguity must mean more than debatable. There must be dueling reasonable interpretations after exhausting other canons intended to resolve ambiguity. This Court does not believe that both readings are reasonable, and therefore does not find this condition to be ambiguous. As such, this Court interprets this condition to not place a requirement on law enforcement that it have probable cause before searching Lebron.
See, Lockhart v. United States, 577 U.S. 347, 361 (2016) (“We have used the lenity principle to resolve ambiguity in favor of the defendant only ‘at the end of the process of construing what Congress has expressed' when the ordinary canons of statutory construction have revealed no satisfactory construction.”).
c. Terry and its progeny are inapplicable.
Lebron has argued that the law regarding stop-and-frisk, or “Terry stops,” applies to this dispute. The government opposes this, arguing that a separate litany of cases specific to probationers is more appropriate. This Court agrees with the government.
See, Dkt. 35 at 8-9.
“The touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined ‘by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.'” One's “status as a probationer subject to a search condition informs both sides of that balance.” Id. at 119. “Inherent in the very nature of probation is that probationers ‘do not enjoy ‘the absolute liberty to which every citizen is entitled.'” Id.
United States v. Knights, 534 U.S. 112, 118-19 (2001).
In Knights, the Supreme Court found that when a probationer's conditions of release expressly authorized a “search anytime, with or without [. . .] probable cause” and when there was reasonable suspicion, law enforcement could search the probationer's residence. Id. at 114 and 122. In Samson, the Court revisited Knights to answer whether the Fourth Amendment prohibited a suspicionless search of a parolee. The search there was “based solely on [the] petitioner's status as a parolee[.]” Id. at 847 and 852. In reviewing Knights, the Court reiterated that the privacy rights of probationers were “significantly diminished.” Id. at 849. The Court conclusively ruled “that the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee.” Id. at 857. See also, United States v. King, 736 F.3d 805, 808 (9th Cir. 2013) (noting that suspicionless does not include “illegitimate reasons, such as harassment.”).
Samson v. California, 547 U.S. 843, 848-57 (2006).
As found supra, Lebron was subject to a condition of release that diminished his privacy interest against suspicionless searches. As such, the initial search of Lebron at the PED office was sufficient because the officers did not need reasonable suspicion.
d. The tip might have provided reasonable suspicion.
The parties disagree as to whether the officers had reasonable suspicion to detain and frisk Lebron. Lebron argues (1) that “there was no reliable evidence that he posed any kind of risk when detained at the PED office”; and (2) that the anonymous tip was inadequate. The government argues (1) that reasonable suspicion was not required; and (2) that it nevertheless was present.
Dkt. 35 at 6-9.
Dkt. 36 at 6-7.
As stated supra, the officers did not need reasonable suspicion. However, the tip, even if this Court were to use the Terry framework, may have been sufficient, though this Court would need additional development of the record to find so conclusively. Under Terry, a law enforcement officer may conduct a brief investigatory stop upon a reasonable, articulable suspicion that criminal activity is occurring.
Terry v. Ohio, 392 U.S. 1, 19 & 27 (1968).
Law enforcement may not solely rely on an anonymous tip without some indicia of reliability to establish reasonable suspicion. However, a tip may qualify if it (1) includes a “range of details”; (2) predicts the suspect's future actions rather than simply describing observed facts; and (3) is corroborated.
United States v. Morales, 252 F.3d 1070, 1075-76 (9th Cir. 2001).
“Predictive information that reveals a detailed knowledge of an individual's intimate affairs is more reliable than predictive information that could be observed by the general public, and such self-verifying detail is considerably more valuable if it relates to suspicious activities than if it relates to innocent activities” A mere accusation of wrongdoing is insufficient.
United States v. Rowland, 464 F.3d 899, 907-08 (9th Cir. 2006)(citations omitted).
Lebron argues that discovery is unclear regarding (1) when and by whom the tip was received; and (2) whether it was one tip or three. He also repeated that it was not corroborated. Id. at 8. He directs this Court's attention specifically to Fla. v. J.L., wherein “an anonymous caller reported [. . .] that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun.” Id. at 268. The Court found that this provided law enforcement no ability to test the informant's basis of knowledge nor their credibility. Id. at 271. Further, simply possessing a firearm is not inherently unlawful conduct.
Dkt. 35 at 7-8.
529 U.S. 266, 271 (2000).
However, J.L. is distinguishable from the present case. Here, the parties agree that law enforcement was provided a tip that Lebron, a particular person indicted for domestic violence, had threatened the same named victim with a firearm in his residence. However, additional details would greatly contribute to this Court's analysis as to whether there was reasonable suspicion. Since this Court does not find that there is a need for reasonable suspicion here, it will withhold a specific finding of one. To the extent that a Terry analysis is necessary, further fact development would aid this Court on this issue.
e. The frisk did not violate Lebron's rights.
Lebron argues that the pat down search at the PED office exceeded its permissible scope. He argues that the capsules, money, and keys removed from his person were not “plainly contraband nor could they have plausibly felt like a weapon.” Id. at 10. This Court disagrees for two reasons. First, pursuant to its findings supra, the officers were permitted to fully search him and therefore, the stop-and-frisk rules do not apply. Second, these items could have felt like contraband.
Dkt. 35 at 9-10.
Under Terry, an officer may pat down a suspect's outer clothing. As an analog to the plain view doctrine, “plain feel,” or what is “immediately apparent” upon the pat down is within the same scope of privacy that was authorized to be intruded upon by the underlying reasonable suspicion. Id. at 375-76. As such, if the officer could feel that an item was a weapon or contraband upon the pat down of the outer layer of clothing, its discovery was not in violation of the Fourth Amendment.
Minnesota v. Dickerson, 508 U.S. 366, 375 (1993).
From the filings, this Court does not have enough information to determine what the patting-down officer felt. However, if the officer felt the pills, it may have been immediately apparent that it was contraband. Nevertheless, because this Court finds as a matter of law that Terry and its progeny are not applicable to Lebron in this context, this Court will not order an evidentiary hearing to develop these facts.
f. Lebron's arrest was supported by probable cause.
Lebron argues that he was arrested at the PED office. The government did not respond to that argument. For the purposes of this motion, this Court will accept that Lebron was arrested at this point. He was handcuffed at the PED office and brought to his residence, which was searched, and then he was remanded to jail. Id. at 12. With these facts and the government's non-response to this argument, this Court will operate as if it has found that he was arrested at the office.
Dkt. 35 at 10-12.
He argues that such arrest was improper for two reasons: (1) because it was not supported by probable cause; and (2) that Alaska state law did not permit the PED officers to arrest him without “cause.” Id. at 12-15. As to his first argument, this Court disagrees. Warrantless arrests require probable case. Probable cause exists when the totality of the circumstances would lead a reasonable person to conclude that there was a fair probability that a crime had been committed. Mere suspicion or a hunch is insufficient, but officers do not need to have conclusive evidence of guilt.“[P]roof beyond a reasonable doubt,” is not “required for probable cause to arrest.”
See, Michigan v. Summers, 452 U.S. 692, 700 (1981).
United States v. Valencia-Amezcua, 278 F.3d 901, 906 (9th Cir. 2002).
United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007).
United States v. Talley, 12 Fed.Appx. 512, 513 (9th Cir. 2001) (internal citation omitted).
The officers permissibly finding the capsules and money in his pockets, in addition to the tip, made it sufficiently likely that a crime had been committed. But that is not the core of this issue. Instead, it is primarily a conclusion of excising the evidence discovered on his person and finding the tip to be unreliable. As such, this Court will rely on its earlier findings.
As to the second argument, this has more nuance, but ultimately, it does not move the needle. As Lebron informs, “evidence in a federal prosecution must be suppressed if it was the product of an arrest illegal under state law.” Lebron points to AS 33.05.070(a) as the state law authority for this rule. This paragraph provides in relevant part that “[a]t any time within the probation period, the probation officer may for cause arrest the probationer whenever found, without a warrant.” Lebron argues that “for cause” has not been clarified by the courts, suggesting that it could mean probable cause or perhaps reasonable suspicion.
United States v. Shephard, 21 F.3d 933, 938 (9th Cir. 1994), as amended (Apr. 21, 1994).
Dkt. 35 at 14.
For the purposes of this motion, this Court will read “for cause” in the light most favorable to the defendant as meaning probable cause. This should not be taken as an affirmative interpretation of the statute, nor does it indicate how this Court might or should interpret it. It is merely for demonstrative purposes. As stated supra, law enforcement had probable cause to arrest Lebron. Therefore, his arrest was not in violation of Alaska law.
g. The subsequent search of his residence did not run afoul of the Fourth Amendment.
Lebron argues that the search of his residence was derivative of unlawfully obtained information about him, making it tainted under the fruit of the poisonous tree doctrine. To support this argument, Lebron argues that his privacy interest outweighed the government's interest, referring this Court to United States v. Lara, Knights, and King.
Dkt. 35 at 16.
815 F.3d 605 (9th Cir. 2016).
Lara is particularly instructive on this matter. In Lara, the Ninth Circuit was presented with a case wherein a probationer had expressly waived his rights under the Fourth Amendment. However, the court disagreed that the government could search his cellphone. The court found that the search must still be “reasonable.” Id. at 609-10.
Id. at 607 (“I understand under the Fourth and Fourteenth Amendments to the United States Constitution, I have a right to be free from unreasonable searches and seizures. I waive and give up this right, and further agree that [ . . .] I will submit my person and property, including any residence, premises, container or vehicle under my control [. . ] with or without a warrant, probable cause, or reasonable suspicion.”).
The court balanced the interests of the defendant and the government. When weighing the defendant's interest, the court closely analyzed the facts of the case, finding that his interest was heightened as compared to the defendant in Knights for two primary reasons: (1) the waiver was ambiguous as to whether it would apply to his cellphone; and (2) the court found that a cellphone search was peculiarly intrusive. Id. at 610-12. The court wrote: “[a] phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form-unless the phone is.” The court further reasoned that “especially” because the probationer was nonviolent and the cause for the interaction was simply failing to meet with his probation officer, the government's interests were diminished. Id. at 612.
Id. at 611 (quoting Riley v. California, 573 U.S. 373, 396 (2014)).
Here, while Lebron has argued that the search provision is ambiguous, it is materially clear where it intersects with Lara: it explicitly refers to his residence being subject to his obligation to permit a search. Lara waived the right to searches of “property, including any residence, premises, container or vehicle under [his] control[.]” The government had to argue that Lara's cellphone fell under “property” or “container.” Lebron's condition here clearly puts him on notice that his residence is subject to being searched.
Dkt. 35, Ex. 3 at 4.
Lara, 815 F.3d at 611.
Further, the government's interest is not diminished here as in Lara. Lebron referred to the government's interest in preventing recidivism and helping probationers reintegrate into a community, but there are additional interests at stake. “[D]iscovering criminal activity[,] preventing the destruction of evidence[,]” and “protecting potential victims” are valid state interests as well. Here, Lebron was initially searched after a tip that he had been violent towards a victim in another case and that there were drugs in his residence. Additionally, Lebron's history, particularly of the case for which he was on probation, cannot be characterized as nonviolent, nor does the accusation of aiming a firearm lessen the urgency.
United States v. King, 736 F.3d 805, 809 (9th Cir. 2013).
Lebron argues that the condition of release pertains specifically to search for drugs and related items. He wrote, “the only plausible basis for a search under his conditions was an uncorroborated, anonymous, bare-bones tip that Mr. Lebron had drugs in his residence.” Id. at 20-21. This Court disagrees with this framing. By the time that the officers had entered his residence, they had already found evidence of illicit drugs and a large sum of cash. While possessing cash is not itself criminal, combined with the illicit drugs, having thousands of dollars on your person suggests an illicit purpose. Law enforcement had, at a minimum, reasonable suspicion, which is all this Court finds is required to enter a probationer's residence under Knights and King.
Dkt. 35 at 20.
As such, the evidence found in Lebron's residence should not be suppressed.
Lebron preemptively argued that it was not inevitable that the officers would search his residence, so the independent source doctrine would not save this evidence from suppression. Dkt. 35 at 16-17. This report does not address this because it finds the issue to be moot and because further fact development would be needed.
h. This Court accepts the government's representation as to Lebron's lack of statements, but insofar as it wishes to offer certain statements prior to Lebron being read his Miranda rights, it should be barred from doing so.
Lebron argues that he was subject to a custodial interrogation without having been advised of his Miranda rights and that any statements that he made should be suppressed. The government argues that Lebron invoked his right to remain silent and thereafter made no statements. An evidentiary hearing is not necessary to resolve this dispute. With the government's representation, this Court finds that this disagreement can be settled.
Dkt. 35 at 15-16.
Dkt. 36 at 3, 7-8.
If the government seeks to later introduce evidence of pre-Miranda advisement statements, they should be prevented from doing so. The government has been given the opportunity to make an argument for their inclusion here and should not be permitted to reopen this argument at a later stage of the proceedings without an exceptional showing. Insofar as the government seeks to offer such statements, the motion should be GRANTED.
IV. CONCLUSION
For the reasons set forth above, Lebron's Motion to Suppress should be GRANTED in part and DENIED in part. 28 U.S.C. § 636(b)(1)(B).
Lebron's motion for an evidentiary hearing is DENIED.
Pursuant to D. Alaska Loc. Mag. 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 the CLOSE OF BUSINESS on April 2, 2024. 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. Miranda v. Anchondo, et al., 684 F.3d 844 (9th Cir. 2012). 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 the CLOSE OF BUSINESS on April 9, 2024. The parties shall otherwise comply with provisions of D. Alaska Loc. Mag. 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).