United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE
matter is before the Court on the Report and Recommendation
of Magistrate Judge Patricia L. Cohen addressing
Defendant's Motions to Suppress Evidence, [Doc. No.'s
79 and 80]. An evidentiary hearing was held February 23,
2017. In her March 29, 2016 Report and Recommendation, Judge
Cohen recommends that the motions be denied. Defendant has
filed written objections to this recommendation.
party objects to the magistrate judge's report and
recommendation, the Court must conduct a de novo
review of the portions of the report, findings, or
recommendations to which the party objected. See United
States v. Lothridge, 324 F.3d 599, 600 (8th Cir.2003)
(citing 28 U.S.C. § 636(b)(1)). Pursuant to 28 U.S.C.
§ 636, the Court will therefore conduct such a de
novo review of those portions of the Memorandum to which
Defendant objects. The Court has reviewed the entire record
for this purpose, including listening to the audio taping of
the hearing and reading the transcript thereof.
continues to object to the finding that he consented to the
search of his cellular telephone. Defendant argues that there
is no corroboration of Detective Rudolph's testimony, nor
is there a recording of Defendant's consent, Defendant
fails to present any authority requiring such corroboration
Rudolph testified that he told Defendant he was going to
seize his cell phone as evidence. At that time, Defendant
stated: “Go ahead and look at the phone.
There's not going to be anything in there.”
(emphasis added). Although Defendant argues that the
statement was nothing more than a response to the
detective's statement, Defendant specifically authorized
him to look in the phone, and specifically articulated what
he believed the result of the search would be. Rather than a
mere acquiescence, Defendant provided the authority to
actually look into the phone.
Defendant's consent was not limited in anyway, and
specifically allowed the search of the entire phone through
his statement that “There's not going to be
anything in there.” This statement clearly authorizes a
search of the entire phone.
Cohen set out the applicable law with respect to consent and
the scope of that consent. She determined that the testimony
of Detective Rudolph was credible. Defendant has presented no
authority requiring a recording or a written consent to
search his phone. Applying the law to the facts established
at the hearing, Judge Cohen thoroughly and correctly
concluded that Defendant's consent was given and was not
limited in its scope. The objection is overruled. Defendant
also objects to Judge Cohen's recommendation that his
Motion to Suppress the photographic lineup be denied. The
Supreme Court has established a two-step inquiry into
photographic lineups. Schawitsch v. Burt, 491 F.3d
798, 802 (8th Cir.2007) (citing Manson v.
Brathwaite, 432 U.S. 98, 116 (1977)); see also Neil
v. Biggers, 409 U.S. 188, 197 (1972); Simmons v.
United States, 390 U.S. 377, 384, (1968). First, the
Court must determine whether the lineup was impermissibly
suggestive. Schawitsch, 491 F.3d at 802. If so
found, then the Court must examine whether under the totality
of the circumstances the lineup created a substantial
likelihood of misidentification at trial. Id; United
States v. House, 823 F.3d 482, 485-86 (8th Cir. 2016).
argues that the photo lineup was impermissibly suggestive,
which created an undue possibility for misidentification. He
asserts that having Defendant's picture first rendered
the lineup suggestive. To the contrary, there is no
indication that merely presenting Defendant's photograph
first had any effect whatsoever. Defendant argues that the
detective may have unwittingly suggested that the picture was
of the suspect in their case. This is pure speculation on the
part of Defendant. There is no evidence whatsoever the
detective “unwittingly suggested” that the
picture was of the suspect. Detective Treis, the blind
administrator of the lineup, testified that the victims were
shown four separate photographs; the victims did not rely on
only one photograph of Defendant, and they were advised they
would be shown a series of photographs. Defendant has
presented nothing to demonstrate that having his picture in
the first position in the series affected the outcome of the
also argues that the other men were different sizes and
heights. Although there was testimony that Detective Rudolph
disagreed with this positon, more significantly, the men were
selected based on complexion and hairstyle in order to secure
similar looking individuals. Defendant argues that Detective
Rudolph testified that the individuals looked different.
Indeed, everyone person looks somewhat differently from
others, however, Detective Rudolph testified that he was
looking for individuals with similar complexions and
hairstyles as Defendant for the lineup.
Defendant's argument that the clothing the individuals
were wearing rendered the lineup impermissibly suggestive.
The Court disagrees. Nothing presented by Defendant gives
credence to his position that the clothing the individuals
were wearing had any significant effect on the identification
by the victims. The objection is overruled.
Cohen's conclusion that the search was legal is based on
sound legal analysis. The Court agrees with Judge Cohen's
conclusions in their entirety. The Recommendation is adopted
IT IS HEREBY ORDERED that Defendant's Motions to Suppress