U.S. v. Peneaux, CR. No. 07-30061-KES.
| Decision Date | 11 February 2008 |
| Docket Number | CR. No. 07-30061-KES. |
| Citation | 538 F.Supp.2d 1177 |
| Parties | UNITED STATES of America, Plaintiff, v. Jasper J. PENEAUX, Jr., and Christopher R. Prue, Defendants. |
| Court | U.S. District Court — District of South Dakota |
Randolph J. Seiler, Jeremy R. Jehangiri, Assistant United States Attorneys, Pierre, SD, for Plaintiff.
Jana M. Miner, First Assistant Federal Public Defender, David W. Siebrasse, Siebrasse Law Office, P.C., Pierre, SD, for Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATIONS
Defendants, Jasper Peneaux Jr., and Christopher R. Prue, are charged in a four-count indictment which alleges aggravated sexual abuse and robbery. Defendants move to suppress evidence of photo identifications of each defendant by the alleged victim, arguing that the photo lineup procedure violated their right to due process. Additionally, Peneaux moves for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), arguing that a search warrant for the search of his person was issued based upon an improper affidavit.
Magistrate Judge Mark A. Moreno conducted an evidentiary hearing with regard to the motions to suppress. At the conclusion of the evidentiary hearing, the magistrate judge denied Peneaux's motion for a Franks hearing and supplemented his oral order with a written report and recommendation. Docket 70. The magistrate judge also issued a report and recommendation recommending that this court deny defendants' motion to suppress the photo identifications. Docket 72. Defendants object to the reports and recommendations of the magistrate judge. Dockets 76, 79.
The court must make a de novo review "of those portions of the [Magistrate's] report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1); see also United States v. Lothridge, 324 F.3d 599 (8th Cir.2003); Jones v. Pillow, 47 F.3d 251, 253 (8th Cir.1995). 28 U.S.C. § 636(b)(1) requires that when a party objects to the report and recommendation of a magistrate judge concerning a dispositive matter, "[a] judge of the court shall make a de novo determination of these portions of the report or specified proposed findings or recommendations to which objection is made." Id.; see also Fed.R.Civ.P. 72(b). After a careful de novo review of the magistrate judge's findings and recommendations and a review of the record, the court accepts the findings and recommendations of the magistrate judge as supplemented herein.
All four counts in the indictment stem from events that are alleged to have occurred on November 18, 2006. It is alleged that on that date, defendants were in attendance at a party at the home of the alleged victim on the Rosebud Indian Reservation. At that party it is alleged that defendants sexually assaulted Ms. Oskolkoff, and then took her cell phone and money by force, violence, and intimidation.
The Rosebud Police Department first became involved in investigating the above described incident when it received a call concerning a possible rape at approximately 6:18 a.m. on November 18, 2006. Officers responded to the address given by the caller and discovered the alleged victim in an emotional state. A sexual assault kit was performed on the alleged victim and evidence was collected from her home. The alleged victim did not give a description of her alleged assailants.
Sometime on November 18, 2006, the alleged victim's mother called the stolen cell phone and talked to a female later identified as T. White Lance. The following day the phone was recovered from White Lance, who stated that she had received the phone from Peneaux, her boyfriend.1
On November 19, 2006, a photo lineup was arranged by Rosebud Sergeant Mark Kettell. At the suppression hearing, Kettell testified that the lineup consisted of photos of persons he had determined were present at the alleged victim's party and which were already contained within the police department's database. Docket 73 at 75-80. The lineup contained a photo of Peneaux but did not contain a photo of Prue. Id. When shown the photo array, the alleged victim immediately identified Peneaux as one of her assailants and indicated that she was "sure" of her identification. Id. at 112-13.
Subsequent to Peneaux's arrest, the police investigation also led tribal authorities to believe that Prue was with Peneaux when the alleged rape occurred. He therefore became a suspect. On November 22, 2006, a second photo lineup was prepared by Special Agent Barrera containing Prue's photograph. Special Agent Barrera prepared the lineup by retrieving seven other pictures in the police database of persons that had physical characteristics similar to Prue. Id. at 152. Upon viewing the lineup, the alleged victim immediately identified Prue as the second assailant. Id. at 156.
On November 28, 2006, Special Agent Barrera prepared an affidavit in support of his request for a search warrant of Jasper Peneaux and Christopher Prue. In the affidavit, Barrera averred that he had been employed since February 23, 1993, and he had been employed for thirteen years. Barrera also averred that although no description of the alleged assailants was obtained from the victim at her home on November 18, 2006, the victim's mother had "talked [to] a female who stated she got the phone from Christopher Prue." Further, the affidavit averred:
On November 19, 2006 the victim recovered her cellular phone from a female with the last name of White Lance, first name started with a T. The female states that she got the telephone from Christopher Prue her boyfriend. The victim was shown a photo line up by Sgt. Mark Kettell and she picked out Jasper Peneaux as one of the assailants. Mr. Peneaux and Ms. White Lance said he (Peneaux) was with Christopher Prue. On the same date the victim picks Mr. [P]rue out of [the] photo line up provided by me.
Based upon Special Agent Barrera's affidavit, Tribal Judge Janel Sully issued warrants to obtain a biological sample from each defendant.
The magistrate judge determined that the admission of the identification evidence did not violate defendants' rights to due process pursuant to the two-step inquiry set forth by the Supreme Court. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Schawitsch v. Burt, 491 F.3d 798, 802 (8th Cir.2007). The magistrate judge found that defendants had not demonstrated that the photo array was presented in an impermissibly suggestive manner, and in the alternative that under the totality of the circumstances, the array did not create a substantial risk of misidentification at trial. Docket 72 at 3-6.
The court has conducted a de novo review of the report and recommendations issued by Magistrate Judge Moreno, pursuant to Rule 28 U.S.C. § 636(b)(1). Defendants argue that under the second step of the Schawitsch analysis, the lack of evidence regarding the lighting during the alleged rape and the alleged victim's level of intoxication create a substantial risk of misidentification. Nonetheless, the defendant was able to quickly and decisively select each defendant from the photo arrays displayed to her, and under the totality of the circumstances the court finds that there is not a substantial risk of misidentification. Defendants will have an opportunity to cross-examine the alleged victim regarding her ability to perceive and recall the identity of her alleged assailants at trial. After reviewing the facts and the law as it relates to this case, as well as the objections made by defendants, the court adopts the report and recommendation issued by Magistrate Judge Moreno with respect to the suppression of the photo identifications in its entirety. Accordingly, defendants' motions to suppress are denied.2
Peneaux also objects to the report and recommendation of the magistrate judge that recommends this court deny his motion for a Franks hearing to challenge the validity of the search warrant issued by Judge sully. Peneaux argues that the affidavit submitted by Special Agent Christian Barrera in support of his application for a search warrant was defective, and therefore insufficient to support the probable cause determination made by Judge Sully when she issued the warrant.
Where an issuing judge's probable cause determination was premised on an affidavit containing false or omitted statements, the resulting search warrant may be invalid if the defendant can prove by a preponderance of the evidence (1) that the police omitted facts with the intent to make, or in reckless disregard of whether they were made, the affidavit misleading ... and (2) that the affidavit, if supplemented by the omitted information would not have been sufficient to support a finding of probable cause.
United States v. Williams, 477 F.3d 554, 557 (8th Cir.2007) (internal quotations omitted).
A defendant is entitled to a hearing to challenge the veracity of a statement used to secure a search warrant when "the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause." Franks, 438 U.S. at 155-56, 98 S.Ct. 2674.
The magistrate judge discussed the grounds based upon which Peneaux asserted that there existed either deliberate falsehoods or misstatements in the affidavit upon which the search warrant was granted. The magistrate judge correctly rejected Peneaux's proffered arguments, none of which demonstrate that Special...
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