UNITED STATES OF AMERICA,
Plaintiff,
v.
JASPER J. PENEAUX, JR.,
Defendant.
[2008 DSD 3]

United States District Court
District Of South Dakota--Central Division
CR. 07-30061(01)

REPORT AND RECOMMENDATION
FOR DISPOSITION OF DEFENDANT'S
MOTION FOR FRANKS HEARING
AND SUPPRESSION OF EVIDENCE

Edward G. Albright, Jana M. Miner
Federal Public Defender's, Pierre, SD
Attorneys for Defendant Peneaux.

David W. Siebrasse, Siebrasse Law Office, P.C., Pierre, SD
Attorney for Defendant Prue.

Jeremy R. Jehangiri, Randolph J. Seiler
U.S. Attorney's Office, Pierre, SD
Attorneys for Plaintiff.

Filed January 11, 2008

Moreno, Mark A., United States Magistrate Judge

[¶1] Defendant, Jasper J. Peneaux, Jr., has filed a Motion for Franks Hearing and Suppression of Evidence and supporting Memorandum, Docket Nos. 25, 26. In his Motion, Defendant claims that a tribal search warrant was issued based on an affidavit containing false or omitted statements, thereby making the warrant invalid and the evidence or "fruits" obtained therefrom, illegal. Plaintiff, United States of America (Government), has filed a Response to the Motion, resisting the same. Docket No. 30. Because Defendant's Motion is a dispositive one, this Court is only authorized to determine the same on a report and recommendation basis. Pursuant to 28 USC §636(b)(1), the Court does now make and propose the following report and recommendation for disposition of the Motion.

I.

[¶2] On November 28, 2006, Special Agent Christian Barrera of the Rosebud Sioux Tribe, submitted an affidavit in support of a search warrant to Tribal Judge Janel Y. Sully. The search warrant requested authorization to conduct a "search of" Defendant and co-Defendant, Christopher R. Prue.

[¶3] In his affidavit, Barrera averred that on November 18, 2006, at approximately 6:18 a.m., the Rosebud Police Department received a call concerning a possible rape that had occurred. Officers from the Police Department and Barrera responded to the call. At the scene, evidence was collected and a sexual assault kit performed on the alleged victim.

[¶4] Thereafter, Angel Cloudman, the alleged victim's mother, called the latter's cell phone and talked to a female who indicated that she obtained the phone from Prue. The next day, the alleged victim recovered her phone from a female with the last name of White Lance. White Lance stated that her boyfriend, Prue, gave her the phone.

[¶5] That same day, November 19, 2006, the alleged victim was shown a photo lineup by Sergeant Mark Kettell, a tribal police officer. The alleged victim identified Defendant from the lineup as one of her attackers. According to Barrera, White Lance and Defendant stated that Defendant and Prue were together. The alleged victim also identified Prue as her other attacker from a photo lineup prepared by Barrera.

[¶6] Based on Barrera's affidavit, Judge Sully issued search warrants, on November 28, 2006, authorizing tribal officers to obtain "biological sample[s]" from Defendant and Prue. The warrants were then executed later in the day and biological samples taken from individuals.

[¶7] On July 25, 2007, a four-count Indictment was filed against Defendant and Prue charging them with three counts of forcible rape, one count of robbery and aiding and abetting each other in the commission of such crimes. Following the filing of Defendant's Motion and the Government's Response thereto, the Court held a hearing on other defense motions and at the conclusion of the same, determined that Defendant was not entitled to a Franks hearing. In doing so, the Court made an oral ruling on the Franks issue from the bench and indicated that it may supplement its ruling in writing later on. This Report and Recommendation is intended to augment and more fully address Defendant's Motion and the claims raised by him for the first time at the hearing.

II.

[¶8] Before a search warrant may be issued, the Fourth Amendment requires a showing of probable cause based on the "totality of the circumstances." United States v. Williams, 477 F3d 554, 557 (8th Cir. 2007). The task of the issuing judge "is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before [her] … there is a fair probability that contraband or evidence of a crime will be found in a particular place." Williams, 477 F3d at 557 (quoting Illinois v. Gates, 462 US 213, 238 (1983)); seealso United States v. Davis, 471 F3d 938, 946 (8th Cir. 2006). Where the probable cause determination is premised on an affidavit containing false or omitted statements, the resulting search warrant may be invalid if the defendant can establish, by a preponderance of the evidence "(1) that the [affiant] omitted facts with the intent to make, or in reckless disregard of whether they thereby 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." Williams, 477 F3d at 557 (quoting United States v. Reivich, 793 F2d 957, 961 (8th Cir. 1986)); see also United States v. Reinholz, 245 F3d 765, 774 (8th Cir.), cert. denied, 534 US 896 (2001).

[¶9] To be entitled to a Franks hearing, a defendant must make a "substantial preliminary showing" that includes:

Allegations of deliberate falsehood or of reckless disregard for the truth[.] [T]hose allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or the absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted … is only that of the affiant, not of any non-governmental informant.

Williams, 477 F3d at 557 (quoting Franks v. Delaware, 438 US 154, 171 (1978)); see also United States v. Snyder, No. 07-1298, 2008 WL 60181 at *2 (8th Cir. Jan. 7, 2008). "While clear proof of these elements is not required at the stage at which the defendant is demonstrating an entitlement to an evidentiary hearing, the defendant must make a 'substantial preliminary showing' comprised of specific allegations along with supporting affidavits or similarly reliable statements." Williams, 477 F3d at 557-58; see also Franks, 438 US at 171 (describing what must be shown for allegedly false statements in warrant affidavits). Inasmuch as there is a "presumption of validity with respect to the affidavit supporting the search warrant, to be entitled to a Franks hearing, the defendant's attack must be more than conclusory and must be supported by more than a mere desire to cross- examine." Williams, 477 F3d at 558. And, "[t]he substantiality requirement is not lightly met." Williams, 477 F3d at 558 (citing United States v. Wajda, 810 F2d 754, 759 (8th Cir.), cert. denied, 481 US 1040 (1987)); see also United States v. Gabrio, 295 F3d 880, 883 (8th Cir.), cert. denied, 537 US 962 (2002). Indeed, a finding by a reviewing court that the affiant "may" have included or omitted information from the search warrant affidavit with reckless disregard for the truth is legally insufficient to justify a Franks hearing absent a determination that the included or omitted information may, in turn, have rendered the affidavit misleading and/or otherwise made the probable cause finding unsupportable. See Williams, 477 F3d at 558.

III.

[¶10] Defendant's Motion and accompanying Memorandum failed to specifically identify any falsehoods or misstatements. In addition, Defendant has failed to submit affidavits or similarly reliable statements to support his claims. Defendant did, however, make several later-in-time proffers at the end of the motion hearing in an effort to show that Barrera deliberately, or with reckless disregard for the truth, misstated or omitted material facts from his affidavit. The Court will address each of Defendant's contentions in turn.

A.

[¶11] Defendant's first contention is that the affidavit erroneously states that Prue was White Lance's boyfriend. According to Defendant, this statement is false and, at the very least, shows that Barrera was reckless in preparing his affidavit. Yet whether Prue was White Lance's boyfriend or not is of little significance. The important fact, in the affidavit, is White Lance's statement that Prue gave her the alleged victim's cell phone and the obvious inference therefrom, namely, that Prue was with the alleged victim and took her phone the night she was supposedly raped.

B.

[¶12] Second, Defendant contends that Barrera's failure to mention the name of the alleged victim, state where the alleged rape took place and that Indians and/or tribal members were involved, amounted to material omissions that tainted Judge Sully's finding of probable cause. The fact that the name of the alleged victim was left out of the affidavit, however, is not fatal. Although the jurisdictional allegations in the affidavit are quite thin, the Court assumes that Judge Sully, a tribal judge and resident of the Rosebud Indian Reservation, is familiar with tribal members and would have known whether Defendant and Prue, both of whom had been in the Rosebud Tribe's criminal justice system, were Indians and tribal members at the time she reviewed Barrera's search warrant affidavit. In addition, an inference certainly can be drawn that because the alleged rape was reported to the Rosebud Police Department, the same most likely had occurred within the exterior boundaries of the Rosebud Reservation.

C.

[¶13] Defendant next challenges the veracity of Barrera's statement that Defendant and White Lance both said that Defendant "was with" Prue. Defendant, however, offers no evidentiary support in his proffer to counteract the validity of this statement. Defendant's proffer alone is insufficient. Regardless, the fact that the alleged victim identified Defendant and Prue as her assailants from separate photo lineups, is powerful evidence that weighed heavily in the probable cause inquiry.

D.

[¶14] Fourth, Defendant further cavils the affidavit on hearsay and reliability grounds. Specifically, he claims that the affidavit contains hearsay and is unreliable. He points to a statement made by Cloudman, which he says is triple hearsay, as an example of this. It is a well-established rule, however, that hearsay may be used to support the issuance of a warrant so long as there is a substantial basis for crediting the hearsay. See United States v. Ventresca, 380 US 102, 108 (1965). Here, the alleged victim and Cloudman supplied Barrera with corroborated information concerning the identity of Defendant and Prue through the statements and conduct of White Lance and Prue. The statements and actions of these individuals all occurred within a close temporal proximity to the time of the alleged rape.

E.

[¶15] Fifth, Defendant maintains that Barrera misled Judge Sully about his years of experience. In that regard, he alleges that Barrera had not been continuously employed as a police officer for 13 years at the time he executed his affidavit. Barrera testified at the motion hearing that he did not work, for a period of time, as a police officer after 9-11 (i.e. after September 11, 2001). Even so, whether Barrera had 13 years of police experience, as he represented in his affidavit, or 11 years, as he testified to at the motion hearing, is of little consequence and, more importantly, does not alter the probable cause finding or require a Franks hearing.

F.

[¶16] Finally, Defendant assails the search warrant itself because it authorized police officers to obtain a "biological sample" which Barrera did not request in his affidavit. According to Defendant, since the affidavit only requested the "search of [Defendant] and … Prue," a search warrant could not be issued for a "biological sample." Nonetheless, as was previously observed, the existence of probable cause is based on the totality of the circumstances and, rather than reviewing the issuance of a warrant in a hyper-technical fashion, courts employ a common-sense approach. See United States v. Carter, 413 F3d 712, 714 (8th Cir. 2005). Defendant and Prue were both identified by the alleged victim as her attackers. As part of the investigation, tribal officers at the scene performed a rape kit on the alleged victim and collected bodily fluids from her that presumably would have been left behind by her assailants. A search of Defendant and Prue's persons, which Barrera asked permission to do, would include, among other things, obtaining biological samples from them.

IV.

[¶17] Upon review and reconsideration of the matter, the Court concludes that Defendant has failed to make a "substantial preliminary showing" sufficient to justify a Franks hearing. The facts allegedly misstated or omitted were either not misleading, because they could have been known to or assumed by Judge Sully, or would otherwise not have materially affected the probable cause determination.

[¶18] Accordingly, it is hereby

[¶19] RECOMMENDED that Defendant's Motion for a Franks Hearing and to Suppress Evidence obtained from an allegedly invalid warrant, Docket No. 25, be denied in all respects.

NOTICE

Failure to file written objections to the within and foregoing Report and Recommendations for Disposition within ten (10) days from the date of service shall bar an aggrieved party from attacking such Report and Recommendations before the assigned United States District Judge. See 28 USC §636(b)(1).