                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                 FILED
                                                        U.S. COURT OF APPEALS
                              No. 05-12550                ELEVENTH CIRCUIT
                          Non-Argument Calendar               MAY 25, 2006
                        ________________________           THOMAS K. KAHN
                                                                CLERK
                    D. C. Docket No. 02-21079-CV-KMM

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                   versus

ONE PIECE OF REAL PROPERTY
LOCATED AT 5800 SW 74TH AVENUE,
MIAMI, FLORIDA, more particularly
described as Lot 3, Block 3 of
Camner Estates according to the
Plat Book 58, at page 21 of the public
records of Dade County, Florida
together with all appurtenances thereto
and all improvements thereon,

                                                          Defendant,

STEVEN HABAN,

                                                         Claimant-Appellant.
                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________
                              (May 25, 2006)
Before BARKETT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Steven Haban, the owner of the property in question, appeals the district

court’s grant of summary judgment in favor of the government in an in rem civil

forfeiture action, 21 U.S.C. § 881(a)(7). The Government alleged in its complaint

that the property had been used to commit or facilitate the commission of a

violation of the Controlled Substances Act. Police officers investigating a

marijuan- growing operation conducted a warrantless search of Haban’s residence

and located 84 marijuana plants, 767 grams of marijuana, and $45,000 in cash.

      On appeal, Haban first argues that the district court clearly erred in finding

that he voluntarily consented to the search of his house and seeks suppression of

the marijuana evidence found therein. “A district court’s ruling on a motion to

suppress presents a mixed question of law and fact.” United States v. Zapata, 180

F.3d 1237, 1240 (11th Cir. 1999). We accept the district court’s factual findings as

true unless the findings are shown to be clearly erroneous. Id. “[A]ll facts are

construed in the light most favorable to the prevailing party below.” United States

v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000). The district court’s application

of the law to the facts is reviewed de novo. Id.

      “Credibility determinations are typically the province of the fact finder



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because the fact finder personally observes the testimony and is thus in a better

position than a reviewing court to assess the credibility of witnesses.” United

States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). We have held that a

“trial judge's choice of whom to believe is conclusive on the appellate court unless

the judge credits exceedingly improbable testimony.” Id. (internal citations and

punctuation omitted) (emphasis in the original).

      In this case, the magistrate found that the testimony of Haban and his

girlfriend was not credible, in light of their denials and minimizations of their

participation in any illegal activity. Specifically, among other things, the court

noted that they claimed that much of the marijuana was for personal use and denied

any prior knowledge about the marijuana, but that (1) Haban had admitted to

growing 36 pounds of marijuana over 9 months, worth $216,000, and it would

have been “virtually impossible” for him to consume that amount of marijuana, (2)

the residence smelled of marijuana, and (3) there were marijuana and growing

apparatuses throughout the house. Conversely, the magistrate judge credited the

testimony of the police officers and, based on the totality of the circumstances,

ultimately found that Haban had given voluntarily consented to the search and

voluntarily waived his Miranda rights. Because the police officer’s testimony was

not exceedingly improbable, the district court did not err in finding her credible,



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and, thus, did not err by finding that Haban voluntarily consented to the search of

his home.

      Haban next argues that the district court erred in denying him a de novo

evidentiary hearing on his motions to suppress the physical evidence and his

confession. He concedes that the Supreme Court has held that a district court is not

required to conduct a de novo evidentiary hearing on a motion to suppress when a

magistrate judge has conducted an evidentiary hearing, but he asserts that the

instant case is distinguishable. He asserts that the Supreme Court only has

considered this question in relation to a confession, whereas, here he seeks to

suppress physical evidence. Alternatively, he argues that the Supreme Court

should overrule the existing precedent. Finally, Haban contends that the district

court abused its discretion in denying his motions without a hearing because the

police officers’ testimony was contradictory.

      A district court judge may designate a magistrate to conduct suppression

hearings, but must “make 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)(B). The Supreme Court has held that “the statute calls for a de

novo determination, not a de novo hearing.” United States v. Raddatz, 447 U.S.

667, 674, 100 S.Ct. 2406, 2411, 65 L.Ed.2d 424 (1980). The Court noted that the



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district court may, in its discretion, opt to conduct a de novo evidentiary hearing.

Id. at 676, 100 S.Ct. at 2413. We have recognized that holding, noting that the

district court’s statutory obligation is satisfied “as long as the judge, rather than the

magistrate, exercises ‘ultimate adjudicatory power.’” Proffitt v. Wainwright, 685

F.2d 1227, 1237 (11th Cir. 1982). Because the Supreme Court has held that a

district court is not required to conduct a de novo evidentiary hearing when a party

objects to a magistrate’s recommendations, the district court did not abuse its

discretion by denying Haban a de novo evidentiary hearing.

      Finally, Haban filed a motion in the district court for leave to file a

supplemental answer to the complaint, asserting that collateral estoppel was an

affirmative defense that had not been available at the time when he filed his initial

answer. Specifically, he argued that, since the time when he filed his initial

answer, the Florida state court had granted his motions to suppress the same

evidence in a criminal proceeding stemming from the same activity.

Consequently, Haban sought, essentially, to enforce the state court ruling in the

federal proceedings. The district court denied the motion, and, on appeal, Haban

argues that we have accepted a policy of liberal amendments in regard to

supplemental pleading, and thus, because there was no good reason for denying

leave to supplement a pleading, the district court abused its discretion in denying



                                            5
the motion. He asserts that there would have been no prejudice to the government

due to the amended pleading, and a supplemental pleading was the appropriate

vehicle for asserting the defense of collateral estoppel. Next, he argues that he

only needed to show that the claim was potentially meritorious, or not futile, and

that a claim that may survive a motion to dismiss is not futile. He states that the

district court appeared to find that his claim was futile, but the case to which it

cited did not stand for the proposition for which it was offered. Finally, he argues,

applying Florida law, all the elements of collateral estoppel are present in the

instant case.

         Federal Rule of Civil Procedure 15(d) provides:

         Upon motion of a party the court may, upon reasonable notice and
         upon such terms as are just, permit the party to serve a supplemental
         pleading setting forth transactions or occurrences or events which
         have happened since the date of the pleading sought to be
         supplemented. Permission may be granted even though the original
         pleading is defective in its statement of a claim for relief or defense. If
         the court deems it advisable that the adverse party plead to the
         supplemental pleading, it shall so order, specifying the time therefor.

Fed.R.Civ.P. 15(d). The district court’s application of Rule 15 is reviewed for an

abuse of discretion. Davenport v. United States, 217 F.3d 1341, 1343 n.4 (11th

Cir. 2000). We have accepted a policy of liberal amendments and supplements to

the pleadings under Rule 15. See Harris v. Garner, 216 F.3d 970, 984 (11th Cir.

2000).

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      However, there is no error here. Because this Court held, in an earlier

appeal in this case, that a state court’s ruling on a motion to suppress was not

binding on the federal court, the law-of-the-case doctrine barred the district

court from reconsidering the issue. Upon careful review of the record on

appeal and consideration of the parties’ briefs, we discern no reversible error

in any of the claims asserted.

      AFFIRMED.




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