United States v. Daigle

• Decision Date: 14 January 2020
• Docket Number: No. 18-2603,18-2603
• Citation: 947 F.3d 1076
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Brent DAIGLE, Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

947 F.3d 1076

UNITED STATES of America, Plaintiff - Appellee

v.Brent DAIGLE, Defendant - Appellant

No. 18-2603

United States Court of Appeals, Eighth Circuit.

Submitted: October 18, 2019

Filed: January 14, 2020

Rehearing Denied March 10, 2020

Nicholas Whitney Chase, Megan A. Healy, Jennifer Klemetsrud Puhl, Assistant U.S. Attorneys, U.S. ATTORNEY'S OFFICE, District of North Dakota, for Plaintiff-Appellee.

Brent Daigle, pro se.

Christopher J. Lancaster, Assistant Federal Public Defender, Rachael Steenholdt, FEDERAL PUBLIC DEFENDER'S OFFICE, Fargo, ND, for Defendant-Appellant.

Before LOKEN, SHEPHERD, and STRAS, Circuit Judges.

SHEPHERD, Circuit Judge.

Appellant Brent Daigle appeals the district court’s¹ denial of his motion to suppress and request for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Having jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

I.

On November 9, 2015, Daigle’s wife, Celetra, reported to Griggs County Sheriff Robert Hook that she believed her twelve-year-old daughter, R.M., had been sexually abused by Daigle, the minor’s step-father. Sheriff Hook arranged for R.M. to speak with a forensic interviewer at Red River Children’s Advocacy Center (RRCAC) on November 12, 2015. Sheriff Hook observed the forensic interview in real-time on a closed-circuit television in a separate room at RRCAC.

During the forensic interview, R.M. disclosed that Daigle had been sexually abusing her since she was seven years old and that the last incident had occurred about one month prior. R.M. provided explicit details regarding how, where, when, and how often Daigle had sexually abused her, and stated that it was his usual practice to take video recordings of the sexual abuse. She explained that Daigle had used various electronic devices to record the abuse over the years, but most recently he had used his cell phone, which she described as a silver phone in a camouflage case with tan rubber parts. In terms of brand, R.M. stated, "I know it’s not an iPhone. I think it’s a Samsung. One of those bigger Samsungs." After the forensic interview, Sheriff Hook asked Celetra to describe Daigle’s cell phone. Celetra described it as an LG phone in a camouflage case with tan-brownish corners. She informed Sheriff Hook that Daigle had the LG phone in his possession and that he was on his way to Louisiana.

That evening, law enforcement officers obtained Celetra’s consent to search the family residence, in which they found and seized numerous electronic devices capable of storing electronic images. On November 13, 2015, Sheriff Hook applied for a warrant to search the seized devices and, in support, gave a sworn telephonic affidavit to North Dakota District Judge James D. Hovey. He informed Judge Hovey about R.M.’s forensic interview, summarized R.M.’s detailed allegations of sexual abuse, and noted that, according to R.M., Daigle had used a silver phone in a camouflage case with tan rubber parts, among other devices, to record the abuse. Judge Hovey asked whether the silver phone was listed in the warrant application as a device to be searched. Sheriff Hook clarified that it was not included in the warrant application, because Daigle was on his way to Louisiana and likely had the phone in his possession. Judge Hovey issued the warrant to search the devices seized from the family residence.²

Later that day, Daigle was arrested in Louisiana on North Dakota state charges resulting from R.M.’s forensic interview. Arresting officers seized a silver LG cell phone in a camouflage case with tan rubber parts from Daigle’s person. Sheriff Hook received the LG cell phone on December 3, 2015 and applied for a warrant to search it. In support, he submitted a sworn written affidavit, in which he provided a less detailed recitation of the information presented in his sworn telephonic affidavit in support of the first search warrant. Specifically, the written affidavit noted Celetra’s report to Sheriff Hook; R.M.’s forensic interview; R.M.’s explanations of how, where, and how often the sexual abuse took place; and Sheriff Hook’s observation that R.M. "is a reliable source and says that there is video of her on the LG phone that was in possession of the Defendant at the time of arrest." Sheriff Hook also provided oral testimony in support of the second warrant application at a probable cause hearing held by Judge Hovey, in which Sheriff Hooks testified that the cell phone found on Daigle’s person at the time of arrest matched "to a tee" R.M.’s description of the cell phone used by Daigle to record the sexual abuse. Finding probable cause, Judge Hovey issued the warrant to search the LG cell phone.

At the time of the December probable cause hearing, law enforcement had not yet found evidence of sexual abuse on the devices seized from the family residence. However, the forensic examination of the LG cell phone uncovered deleted videos of Daigle sexually abusing R.M.

Daigle was charged with three counts of sexual exploitation of minors in violation of 18 U.S.C. §§ 2251(a) and (e), and one count of possession of materials involving sexual exploitation of minors in violation of 18 U.S.C. §§ 2252(a)(4)(B) and (b)(2). He moved to suppress the videos found on the LG cell phone, arguing that Sheriff Hook’s written affidavit failed to establish probable cause, that the "good faith" exception under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), did not apply, and that a Franks hearing was warranted because the affidavit contained an intentional misstatement and omission. Following a hearing, the district court denied Daigle’s motion to suppress, finding that the search warrant was supported by probable cause. Further, the district court dismissed as moot Daigle’s request for a Franks hearing, finding that his Franks issues had been addressed at the suppression hearing and, in any case, he had failed to establish a Franks violation.

Thereafter, defense counsel learned about a 2013 investigation into Daigle’s alleged sexual abuse of his two oldest biological daughters. Daigle filed a motion to reconsider, arguing that a Franks hearing was warranted because Sheriff Hook had intentionally or recklessly omitted from his written affidavit information regarding the 2013 investigation—specifically, that no charges had resulted from that investigation, and that R.M. had denied being sexually abused by Daigle during a forensic interview in connection with that investigation. The district court denied the motion to reconsider, finding that Daigle should have been aware of the 2013 investigation at the time he filed his motion to suppress, and that, even if the argument had been timely raised, the inclusion of the omitted information in the written affidavit would not have eliminated the existence of probable cause to search the LG cell phone.

Daigle filed pro se a second motion to reconsider and a motion for a Franks hearing. The district court denied both motions. Daigle pled guilty to all counts pursuant to a plea agreement, but reserved the right to appeal the denial of his motion to suppress. The district court sentenced Daigle to 840 months imprisonment. This appeal follows.

II.

Daigle first argues that the district court erred in denying his motion to suppress because Sheriff Hook’s written affidavit was insufficient to establish probable cause and the Leon "good faith" exception to the exclusionary rule did not apply. He then argues that, even if the affidavit was sufficient, he was entitled to a Franks hearing because Sheriff Hook intentionally or recklessly omitted from his affidavit material information that, if included, would have negated a finding of probable cause. We address each issue in turn.

A.

"In reviewing the district court’s denial of a motion to suppress, we review the district court’s factual findings for clear error and its legal conclusions de novo." United States v. Faulkner, 826 F.3d 1139, 1144 (8th Cir. 2016). "Issuance of a search warrant must be supported by probable cause, which depends on whether, under the totality of the circumstances, there is a fair probability evidence of a crime will be found in a particular place." Id. Judges "may draw reasonable inferences from the totality of the circumstances in determining whether probable cause exists to issue a warrant." United States v. Thompson, 210 F.3d 855, 860 (8th Cir. 2000). "As a reviewing court, we pay ‘great deference’ to the probable cause determinations of the issuing judge or magistrate, and our inquiry is limited to discerning whether the issuing judge had a substantial basis for concluding that probable cause existed." United States v. Lucca, 377 F.3d 927, 933 (8th Cir. 2004) (quoting Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ).

Daigle contends that Sheriff Hook’s written affidavit was insufficient to establish probable cause because it failed to set forth: (1) a sufficient basis for assessing R.M. as reliable; (2) Sheriff Hook’s qualifications and training in child sexual abuse investigations and assessment of witness reliability; (3) the forensic interviewer’s identity and qualifications; (4) the source of the information presented in paragraphs 8, 9, and 10 of the affidavit, which set forth details of Daigle’s sexual abuse of R.M.; and (5) the factual basis for R.M.’s knowledge that there was video of her on Daigle’s phone at the time of arrest.³

As an initial matter, "probable cause is determined based on the information before the issuing judicial officer." United States v. Smith, 581 F.3d 692, 694 (8th Cir. 2009) (internal quotation marks omitted). Here, because the information before Judge Hovey included both Sheriff Hook’s written affidavit and his oral testimony from the probable cause hearing, we consider both in determining whether probable cause supported the issuance of the search warrant. Further, Daigle focuses solely on what the affidavit lacked....