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United States v. Temple

United States District Court, E.D. Missouri, Eastern Division

October 6, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JACOBI R. TEMPLE, Defendant.

          MEMORANDUM, REPORT, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE - MOTIONS TO SUPPRESS [1]

          JOHN M. BODENHAUSEN UNITED STATES MAGISTRATE JUDGE.

         Currently before the Court are several motions to suppress filed on behalf of Defendant Jacobi R. Temple. In particular, Temple has filed a Motion to Suppress Statements (ECF No. 228), a Motion to Suppress Identification (ECF Nos. 229, 230), and a Motion to Suppress Evidence (ECF Nos. 231, 236). The government has filed responses in opposition to each of Temple's suppression motions. (ECF Nos. 262, 263, 264)

         The undersigned held multiple hearings on Temple's suppression motions. The undersigned also granted the parties' request to file post-hearing memoranda. Those memoranda have now been filed. (ECF Nos. 299, 336, 337, 338)

         Having heard and fully considered the testimony and evidence presented, and in full consideration of the parties' arguments and the relevant case law, and for the reasons stated below, the undersigned recommends that the Court deny Temple's Motion to Suppress Statements, Motion to Suppress Identification, and Motion to Suppress Evidence.

         RELEVANT PROCEDURAL BACKGROUND

         Additional background information may be found in an earlier Report and Recommendation addressing Temple's Motion to Dismiss certain counts. (ECF No. 327) For context, a brief summary of the charges is provided. On May 12, 2015, the United States charged Temple by criminal complaint with one count of possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1). (ECF No. 1) On May 13, 2015, the Grand Jury returned a one-count indictment, again charging Temple with one count of possession with intent to distribute heroin, in violation of 21 U.S.C. § 841. (ECF No. 5) On July 15, 2016, the Grand Jury returned a multi-count superseding indictment. The superseding indictment added several, serious charges, as well as two co-defendants-Demante Syms and Samuel Spires.[2] (ECF No. 30)

         Count One of the superseding indictment charges Temple, Syms, and Spires with conspiracy to distribute heroin, in violation of 21 U.S.C §§ 846 and 841. Count Two charges Temple, Syms, and Spires with conspiracy to possess one or more firearms, including a Colt .45 caliber semi-automatic pistol, in furtherance of the heroin conspiracy charged in Count One. Count Three alleges that, on or about March 27, 2015, Temple “did knowingly possess, brandish and discharge one or more firearms” in furtherance of the conspiracy charged in Count One, in violation of 18 U.S.C. § 924(c)(1)(A), and in the course of the violation, Temple caused the death of James Lacey. Count Four alleges that, on or about March 27, 2015, Temple “did knowingly possess, brandish and discharge one or more firearms” in furtherance of the conspiracy charged in Count One, in violation of 18 U.S.C. § 924(c)(1)(A), and in the course of the violation, Temple caused the death of Paige Schaefer. Count Five alleges that, on or about March 27, 2015, Temple, Syms, and Spires, acting together, “did knowingly possess, brandish and discharge one or more firearms” in furtherance of the conspiracy charged in Count One, in violation of 18 U.S.C. § 924(c)(1)(A), and in the course of the violation, the defendants caused the death of Tammie Thurmond. Count Six alleges that, on or about April 24, 2015, Temple knowingly and intentionally possessed, with the intent to distribute, heroin, in violation of 21 U.S.C. § 841.[3]

         On March 21-22, 2017, and April 6, 2017, the undersigned held hearings on Temple's suppression motions. Temple was present with his attorney, Daniel Juengel, and the government was represented by Assistant United States Attorneys Thomas Rea and Lisa Yemm. On March 21, the government presented the testimony of three witnesses, each being Detectives with the St. Louis Metropolitan Police Department (“SLMPD”). Broadly speaking, Det. Marc Wasem testified regarding events associated with locating and arresting Temple on April 24, 2015. This testimony covered a search incident to Temple's arrest and statements Temple made to Det. Wasem after the arrest. Det. Wasem also testified concerning the circumstances of a search of 5036 Newport Avenue, St. Louis, MO. Detective James Hyatt testified regarding locating, seizing, and searching a blue Buick sedan that had allegedly been used in connection with the March 2015 homicides then under investigation. Detective Daniel Sweeney was the lead detective of the investigation into the March 2015 homicides and the related shooting of Brittney Brown. Det. Sweeney testified regarding the circumstances associated with Ms. Brown's identification of Temple. Det. Sweeney also testified regarding his interview of Temple on the evening of April 24, 2015, after Temple's arrest by Det. Wasem.

         On March 22, 2017, Temple presented testimony from Myesha Strickland regarding the circumstances surrounding the search of a residence at 5036 Newport Avenue, on April 24, 2015. Prior to the hearing, the government advised the Court that Ms. Strickland had previously testified in the Grand Jury, and that she also faced potential criminal exposure relative to the Temple investigation. Accordingly, the undersigned appointed Eric Butts as Ms. Strickland's stand-by counsel, should she desire such representation. Prior to the March 22nd hearing, Ms. Strickland was given the opportunity to meet privately with Mr. Butts. At the outset of the hearing, the undersigned confirmed that Ms. Strickland welcomed Mr. Butts' representation. Further, inasmuch as Ms. Strickland had already testified before the Grand Jury, the lawyers agreed that she had waived at least some of her privilege against self-incrimination. Thus, with Mr. Butts present to protect her rights, Ms. Strickland voluntarily appeared and answered questions under oath.

         Based on the testimony and evidence from the March 21st and March 22nd hearings, the undersigned permitted Temple to explore some of the facts and circumstances associated with the use of Cell Site Simulators to assist in locating and arresting Temple on April 24, 2015. On April 6, 2017, the government voluntarily produced Special Agent Jason Davis, United States Secret Service, so that Temple could call S/A Davis to testify. S/A Davis testified regarding the circumstances associated with his use of Cell Site Simulator technology on April 24, 2015, to locate and attempt to locate a cell phone believed to be associated with Temple.

         On June 14, 2017, in connection with a Motion to Compel Discovery filed by Temple (see ECF Nos. 301, 302, 305, 306, 317), the undersigned held a status conference with the attorneys at which time the government asked to re-open the evidentiary hearing, which Temple did not oppose. (ECF No. 314, 315) On July 13, 2017, the evidentiary hearing was re-opened. Temple called co-defendant Spires[4] as a witness and questioned him regarding the timing and circumstances of the police attempt to gain entry into 5036 Newport Avenue, and whether Spires advised any police officer that Myesha Strickland and her infant son remained inside. The government presented the testimony of Det. Nijauh Woodard and Det. Wasem. Det. Woodard testified regarding the arrest of Spires and his recollection of what Spires told him about the presence of Myesha Strickland and her son. Det. Wasem testified and corrected aspects of his prior testimony concerning his knowledge of whether he had been advised that someone remained in the Newport home after Spires's arrest by Det. Woodard.[5]

         Temple's attorney extensively cross-examined the government's witnesses, and AUSA Rea extensively cross-examined Temple's witnesses. In connection with the pending motions, the undersigned has received and considered several exhibits. The government's exhibits are summarized in a table filed in ECF No. 296.

         Based on the testimony and evidence adduced at the evidentiary hearing, having had the opportunity to observe the demeanor and evaluate the credibility of the witnesses, and having fully considered the parties' written submissions, the undersigned makes the following findings of fact, conclusions of law, and recommendations.

         FINDINGS OF FACT

         I. March 27, 2015 Homicides and Identification of Temple

         The Superseding Indictment in this matter alleges that, on March 27, 2015, Temple shot and killed James Lacey, Paige Schaefer, and Tammie Thurmond. The government further contends that Temple shot, but did not kill, Brittney Brown. Tammie Thurmond was Paige Schaefer's mother. James Lacey, Paige Schaefer, and Brittney Brown were shot at 4467 Itaska, in the City of St. Louis. Tammie Thurmond was shot at 4232 S. 37th St., in the City of St. Louis. The government alleges that Temple shot these individuals in connection with drug trafficking activity and all were shot with the same handgun.

         Brittney Brown was shot in the head but survived. After being shot, Ms. Brown managed to call 911 and request an ambulance. (Gov't Exh. 6) In her 911 call, Ms. Brown stated, “he just shot all of us in the head.” During the 911 call, Ms. Brown did not identify Temple by name, but described the shooter as a black male wearing a gray sweatshirt. Shortly after the 911 dispatcher asked if the caller knew the shooter's name, Ms. Brown groaned.

         A still photograph from surveillance at a Burlington Coat Factory store, from March 27, 2015, shows Temple wearing a gray sweatshirt. (Gov't Exh. 7)

         SLMPD Det. Daniel Sweeney was the lead detective in the homicide investigation. At the time of the evidentiary hearing, Det. Sweeney had approximately twenty years of law enforcement experience, with approximately eight years as a detective. Det. Sweeney testified that he had conducted numerous photographic arrays and suspect interviews.

         Ms. Brown's cell phone was recovered by police. On April 2, 2015, Det. Sweeney applied for a warrant relative to certain phone numbers located in Ms. Brown's cell phone, which included the number (314) 203-9177, listed with the name “KJ.” (Gov't Exh. 1A) Det. Sweeney's warrant affidavit indicates that, earlier in the investigation, the Intelligence Division retrieved a partial set of historical records regarding Tammie Thurmond's phone. The records included incoming, outgoing, and missed calls during the hours leading up to Ms. Thurmond's murder. According to the affidavit, the records for Ms. Thurmond's phone showed activity involving (314) 203-9177, which was the same number listed for “KJ” in Ms. Brown's cell phone.

         Det. Sweeney first tried to interview Ms. Brown in the hospital, about ten days after the shooting, but was unable to do so due to Ms. Brown's condition. By mid-April 2015, Ms. Brown had been moved to a rehabilitation facility. On April 15, 2015, Det. Sweeney met with Ms. Brown at the rehabilitation facility. Prior to that meeting, Det. Sweeney prepared a photographic lineup to show to Ms. Brown. Det. Sweeney prepared the lineup using an automated system to select images to include with Temple's image. The lineup included a photograph of Temple and five other individuals having similar characteristics. (Gov't Exh. 9A) Each photo in the lineup was of an African American male with short hair. Each photograph was of the same size and orientation, showing each individual from the shoulders up, and each having substantially the same background. Five of the six individuals, including Temple, were wearing light-colored t-shirts, and one individual wore a dark shirt. There were no special markings or other indications on any of the photographs that would suggest one photograph was more important than any other photograph.

         Det. Sweeney videotaped his meeting with Ms. Brown. (Gov't Exh. 8) The videotape shows that, prior to conducting the photographic lineup, Det. Sweeney interviewed Ms. Brown. Ms. Brown did not refer to Temple by his true name, but rather as “K.J.” Ms. Brown provided a physical description of K.J. Ms. Brown stated that she had known K.J. for more than a year, and that K.J. had been her drug dealer. Ms. Brown also was able to identify K.J.'s phone number. Ms. Brown described the events surrounding the murders of James Lacy and Paige Schaefer. Ms. Brown stated that K.J. wanted money and pistol whipped Mr. Lacy. Brown gave some money to K.J., but K.J. was still upset.

         Det. Sweeney presented the photo lineup in a sequential fashion, using six full-size photographs. Det. Sweeney advised Ms. Brown that it was o.k. if she did not know anyone in the photographs. Temple was the first photograph shown to Ms. Brown and she indicated that the person in the photograph was K.J., and initialed the back of the Temple photograph. (Gov't Exh. 9B) Ms. Brown also signed an acknowledgment form representing that she identified the person in photograph number 1 as the person she recognized from a “triple homicide, ” and that she was certain that she made a correct identification of the suspect. (Exh. 9C)

         II. Locating and Arresting Temple on April 24, 2015

         SLMPD Detective Marc Wasem has been in law enforcement for approximately fourteen years. For about the last seven years, Det. Wasem has also been a Task Force Officer with the FBI fugitive apprehension team. In April 2015, Det. Sweeney requested Det. Wasem's assistance in locating and arresting Temple. Det. Sweeney provided Det. Wasem with a general area in which to look, which included the Bevo Mill area near Newport and Delor, in the City of St. Louis.

         On April 22, 2015, Det. Wasem conducted a criminal history check of Temple. Det. Wasem confirmed that there was a local, active felony arrest warrant for Temple for unlawful use of a weapon, resisting arrest, and property damage, among other warrants and wanteds for Temple. Det. Wasem relied on his criminal history check as a basis of probable cause to justify locating and arresting Temple. (Gov't Exhs. 11A & 11B)

         Investigators also met with Daniel Schaefer, who is the brother of Paige Schaefer and the son of Tammie Thurmond, two of the homicide victims. Daniel Schaefer assisted the police in identifying possible locations where they might find Temple. While riding with police, Daniel Schaefer directed officers to two locations, an area near Newport and Delor, and an area near the old St. John the Baptist High School; both locations are in the Bevo Mill area of St. Louis. Daniel Schaefer also assisted the police in identifying a possible number for a cell phone being used by Temple. Schaefer called the number and positively identified Temple's voice as the person who answered the call.

         On April 23, 2015, in the City of St. Louis Circuit Court, Det. Wasem applied for a court order directed to the phone number (314) 665-8458 (sometimes referred to herein as the ‘8458 phone or Temple's phone), which was a number Daniel Schaefer identified as Temple's number. (Gov't Exh. 2A) Det. Wasem's submitted the application in an effort to precisely locate the ‘8458 phone and, therefore, locate and arrest Temple. The application referenced both the pen register statute and the Stored Communications Act and sought both historical and prospective information relative to locating the ‘8458 phone. See 18 U.S.C. §§ 3122 and 2703. The application requested permission to install and monitor a pen register and trap-and-trace device on the ‘8458 phone, and requested that T-Mobile/TracFone be directed to provide various records and information regarding the phone to the SLMPD, the United States Secret Service, and other investigating agencies. The application requested historical records for the thirty days prior to the application, and records going forward for ten days beyond the date of any Order. Particularly relevant to the motions pending before the Court is item number 9, which requested-

Twenty-four hour a day assistance to include switch based solutions including precision location pursuant to probable cause based information queries and all reasonable assistance to permit the aforementioned Agencies to triangulate target location, including but not limited to terminating interfering service on the target telephone.

(Gov't Exh. 2A at page 2 of 10, emphasis supplied) Thus, the application notified the issuing court that the police sought precision location information relative to the ‘8458 phone, both directly from the cellular provider (T-Mobile/TracFone), as well as from the investigating agencies' efforts to triangulate the phone's location, and that the process might interfere with the service on the target phone.

         Det. Wasem provided a sworn statement of facts in support of the application that referenced, among other facts, that Temple was then using the ‘8458 phone, that Temple was wanted for an active felony warrant, and that Temple was a suspect in Det. Sweeney's homicide investigation. The statement of facts attributed additional information to a reliable confidential informant. The statement of facts also represented that it was critical for investigators to “monitor the movements of the (target cellular telephone) thereby assisting in locating and/or arresting the fugitive/wanted suspect in this case for the active felony warrants/wanted.” (Gov't Exh. 2A at page 5 of 10, emphasis supplied) The application to locate the ‘8458 phone was sworn to and signed by Det. Wasem before an Associate Circuit Judge for the Circuit Court in the City of St. Louis. An Assistant Circuit Attorney also signed the application.

         The Associate Circuit Judge signed an order, dated April 23, 2015, that paralleled Det. Wasem's application. In the April 23rd Court Order, the Judge found probable cause to believe that the allegations were true and there was probable cause for issuance of an order pursuant to 18 U.S.C. §§ 2703, 3122, 3123, and 3124. The April 23rd Court Order required T-Mobile / TracFone to provide the requested information regarding the ‘8458 phone to the SLMPD and USSS. Like the application, the Order included a list of nine items. Item 9 required-

Twenty-four hour a day assistance to include switch based solutions including precision location pursuant to probable cause based information queries and all reasonable assistance to permit the aforementioned agencies to triangulate target location, including but not limited to terminating interfering service on the target telephone.

(Gov't Exh. 2A at page 9 of 10, emphasis supplied) Just above the Judge's signature line was an indication that “With this Court Order we would like to obtain the following information; Precision Locate.” (Id. at page 10, bold in original) For purposes of this Report and Recommendation, the undersigned will refer to the April 23, 2015 Court Order as the “April 23rd Court Order.”

         During the afternoon of April 24, 2015, Det. Wasem and several other officers were conducting surveillance in the general area of Bevo Mill where they hoped to locate and arrest Temple. The surveillance started in the area of the 4600 block of Ray. Det. Wasem explained why the surveillance started at that location; when Daniel Schaefer was assisting the SLMPD earlier in April, he and Det. Sweeney observed Temple in the 4600 block of Ray. The 4600 block of Ray Avenue is approximately three or four blocks away from the 5000 block of Newport Ave. (Gov't Exh. 3-B) As explained below, the police eventually concluded that Temple had been in a home at 5036 Newport Ave. and conducted a warrantless search of that home after arresting Temple.

         Also on April 24th, Det. Wasem and the investigative team began receiving location information from the cellular provider, pursuant to the April 23rd Court Order.[6] Det. Wasem explained that, although the information indicated that the target phone was in the Bevo Mill area of St. Louis as anticipated, the degree of precision was relatively poor, with an accuracy of approximately 1, 000 meters. Such accuracy would not readily facilitate locating Temple. Temple has not challenged the location information provided to the police by T-Mobile / TracFone and no detailed record has been made as to how that location information was determined. The location information directly from T-Mobile/TracFone is not the same as information obtained by using a Cell Site Simulator.

         The use of a Cell Site Simulator to attempt to locate and arrest Temple is central to several aspects of Temple's motions to suppress. The undersigned will discuss Cell Site Simulators in more detail, including specific findings of fact, in the discussion and analysis below. The undersigned has also reviewed and considered a recording of the police radio traffic associated with the surveillance and arrest of Temple on April 24, 2015. (Gov't Exhs. 3, 3A; Def. Exh. B)

         The testimony and radio traffic indicate that Det. Wasem requested assistance from a Cell Site Simulator due to the precision of the information from the cellular provider (1000 meter accuracy). As detailed below, no Cell Site Simulator was used to precisely locate the ‘8458 phone until after visual surveillance located Temple in the area and indicated that his home base was most likely on Newport Avenue.

         The undersigned finds, based on the testimony from Special Agent Jason Davis, U.S. Secret Service, the term Cell Site Simulator is apt because such devices mimic cell towers (“cell sites”). When used to locate a particular cellular device, a Cell Site Simulator must be in the vicinity of the device to be located. When used in the vicinity of a suspect's phone, a Cell Site Simulator can cause the suspect's cell phone to register with the Cell Site Simulator rather than to a local cell tower. As described by S/A Davis, Cell Site Simulators do not force a phone to connect with it; rather, Cell Site Simulators take advantage of the fact that cell phones are designed to prefer to connect with the best cell tower available.[7] When a Cell Site Simulator is deployed sufficiently close to the cell phone in question, that phone will register with the Cell Site Simulator rather than a normal cell tower. To facilitate this capability, the Cell Site Simulator operator needs some knowledge of the general whereabouts of the device to successfully locate the target phone. S/A Davis explained how he relied on data from T-Mobile to get started. In this case, the police had already visually observed Temple in the area as well.

         After the Cell Site Simulator locks on to the target cell phone, it can provide information that assists in locating the suspect's cell phone. By analyzing the signals from the suspect's phone, the Cell Site Simulator determines a direction and provides a metric indicative of signal strength and provides that information to the operator. The operator and investigators then use their judgment (and perhaps other information such as prior visual surveillance in this case) to assess where the phone might be. When a Cell Site Simulator is locked on to a target phone, that phone is not able to place or receive calls because the Cell Site Simulator interrupts normal service. The Cell Site Simulators used in this case did not obtain and provide GPS-type data (e.g., latitude / longitude coordinates) from any phone, and did not intercept the content of any communications (e.g., voice calls or text messages).

         Ultimately, two Cell Site Simulators were deployed to attempt to locate Temple's cell phone (the ‘8458 phone)-one operated by the SLMPD and one operated by the U.S. Secret Service. The two Cell Site Simulators were operated separately out of different vehicles.

         The radio traffic confirms that only the Cell Site Simulator deployed by the Secret Service was able to successfully lock-on and provide information permitting law enforcement to identify a likely location of the ‘8458 phone.

         Before any Cell Site Simulator was deployed to locate the ‘8458 cell phone, Detective Early, who was in a covert position, observed Temple and two other males walking on a public street in the area. Det. Wasem, who was in an unmarked vehicle, thereafter positively identified Temple. The police conducted visual surveillance of Temple as he was in the public. Visual surveillance was lost when Temple entered a residence. The surveillance team believed that Temple had likely entered a residence on the East side of Newport Avenue between Walsh St. and Delor St., which is the 5000 block of Newport Avenue. The residence at 5036 Newport is on the East side of Newport. (Gov't Exh. 3B) The radio traffic associated with the visual surveillance efforts includes statements from Det. Early.[8] Det. Early referred to this area of Newport as “home base.” Det. Early explains later in the radio traffic that the suspects were observed more than half-way down the block on Newport, which coincides with 5036 and 5040 Newport Avenue. The remainder of the radio traffic confirms that the visual surveillance led the surveillance team to focus on the area around 5036 and 5040 Newport Avenue. The homes at 5036 and 5040 Newport Avenue are next door to each other. (Gov't Exh. 3B)[9]

         After Det. Early identified the area of 5000 Newport Avenue as Temple's home base the Cell Site Simulators were directed specifically to the 5000 block of Newport Avenue. The SLMPD Cell Site Simulator made the first attempt to locate the ‘8458 phone. Although the SLMPD briefly locked on the phone, the radio traffic unequivocally indicates that the SLMPD was unsuccessful in actually triangulating and locating the ‘8458 phone, despite knowing that Temple was in the area. At one point, the operator states that the signal is everywhere and hard to narrow down.[10]

         After the SLMPD Cell Site Simulator failed to locate Temple's phone, the Secret Service covert vehicle drove by the 5000 block of Newport Avenue. The Secret Service Cell Site Simulator locked on to the ‘8458 phone. The associated radio traffic indicates that the suspected location for the ‘8458 cell phone was 5036 or 5040 Newport Avenue, with the Cell Site Simulator operator eventually indicating that 5036 was the most likely address.

         The testimony at the evidentiary hearing established that, when a Cell Site Simulator locks on to a phone, that phone is unable to place or receive calls.[11] In this case, S/A Davis testified that he “released” the lock after about one minute. Releasing reduces the risk that the person using the phone (presumed to be Temple in this case) might figure out the police were trying to locate his phone. There was no further use of a Cell Site Simulator to locate the ‘8046 cell phone. Rather, according to Det. Wasem, the surveillance plan was to wait and see if the suspects exited the house, and S/A Davis testified that after he released the lock, he did not activate the Cell Site Simulator again.

         In fact, the police did not need to enter or attempt to arrest Temple at 5036 or 5040 Newport Avenue. Before any arrest attempt was made, Temple and two other persons emerged from a gangway in the area of 5036 Newport Avenue and again walked on the public streets. The police maintained visual surveillance of Temple and the others while they were in the public. The radio traffic indicates a decision to let Temple get farther away from the house before attempting any arrest. As a result, the police decided to arrest Temple when he was in the area of 5201 Steffens Avenue. Temple fled on foot. Det. Wasem pursued Temple and eventually apprehended and arrested him in the area of 4049 Eichelberger Street. (Gov't Exh. 3B) According to Det. Wasem, Temple was arrested at approximately 3:45 p.m.

         SLMPD Det. Scanlon was with Det. Wasem after Temple's arrest. Det. Scanlon conducted a search of Temple incident to the arrest and recovered a clear bag with suspected heroin and a cell phone. Det. Scanlon placed Temple in his vehicle and returned with Temple to the area of Newport Avenue. Det. Wasem walked back to the Newport area, looking for any weapons that may have been discarded by Temple and found none.

         Based on the radio traffic and testimony, including Det. Wasem's testimony, the record establishes that, before any Cell Site Simulator was used to locate the ‘8046 phone, the police were already conducting visual surveillance in the 5000 block of Newport Avenue and were focused on the East side of that street. The police had observed Temple in the area without the assistance of a Cell Site Simulator.

         The radio traffic also indicates when the surveillance team was relying on Cell Site Simulator technology to locate Temple's phone.[12] The surveillance team maintained visual surveillance of the area throughout and relied on the Cell Site Simulator for a brief moment in time. The radio traffic and evidence adduced at the evidentiary hearing established that the police did not use a Cell Site Simulator to determine Temple's location while he was in public- either before Temple entered 5036 Newport Avenue or after emerged back in public and was subsequently arrested. The Cell Site Simulator confirmed what Det. Early observed, that Temple went into a house more than half-way down Newport Avenue. Even then, the police were not sure whether the house in question was 5036 or 5040 Newport Avenue.

         III. Search of 5036 Newport Avenue on April 24, 2015

         After he arrested Temple, Det. Wasem returned to Newport Avenue. At this point in time, only Temple was in custody. Another suspect, now known to be Demonte Syms, was observed looking around a corner in a gangway in the area of Newport Avenue. Syms fled but was arrested and returned to the Newport Avenue area. Det. Wasem participated in the pursuit of Syms.

         Det. Wasem testified that he planned to conduct a “knock and talk.”[13] As noted above, the police were not sure which residence was in issue-5036 or 5040 Newport Avenue. Before conducting any knock and talk, Det. Wasem spoke with neighbors who identified 5036 Newport Avenue as a problem property, which Det. Wasem interpreted to mean that there had been narcotics activity at that address. The radio traffic also indicates that, before he attempted any knock and talk, Det. Wasem believed the house would likely be empty.

         When Det. Wasem first attempted the knock and talk at 5036 Newport, Sam Spires came to the door but he refused to open it. Spires told Det. Wasem that he did not live in the house and that the police would need a warrant before he would open the door. After several minutes, Spires voluntarily left the rear of the residence and was arrested. According to the hearing testimony, there were thirteen SLMPD officers at the scene-one supervisor and twelve detectives.[14] Two officers were in the rear of the 5036 Newport residence when Spires left.

         As indicated above, the Court re-opened the evidentiary hearing to receive additional testimony as to whether Spires told the police that anyone remained in the house after he left through the rear. In his testimony, Spires acknowledged that he was involved in drug distribution with Temple and Syms, and that drugs and items associated with drug distribution were located inside the Newport home when the police arrived on April 24, 2015. Spires was outside when the police attempted to arrest Temple but he managed to get back inside the house. Spires testified that one of the police officers who came to the door claimed to have a search warrant but did not produce any such warrant.[15] Spires refused to allow the police entry.

         When the police first encountered Spires at the door of 5036 Newport, they did not know that a woman named Myesha Strickland and her two-year old son were inside the Newport residence with Spires. Ms. Strickland is Demonte Syms's girlfriend and mother of his young child. Ms. Strickland has known Temple since high school. Both Spires and Ms. Strickland testified that, after Temple's arrest, Spires attempted to gather and dispose of drugs in the house. According to Spires, Myesha Strickland held a bag while he gathered materials. The materials were flushed down a toilet. Ms. Strickland testified that it was her belief that all of the drugs in the residence had been disposed of before Spires left the residence. Ms. Strickland denied assisting Spires with disposing evidence.

         Spires voluntarily exited the Newport residence via the rear door only after he spoke with Det. Wasem at the front door, and after he flushed drugs down the toilet. Det. Nijauh Woodard, who was behind the residence, immediately arrested Spires. Spires testified that he informed Det. Woodard that Ms. Strickland and a child remained inside. Det. Woodard testified that he then advised Det. Early that a woman was inside, but he was unsure whether he ever mentioned the child to Det. Early.

         After Spires exited 5036 Newport, Det. Wasem knocked on the door of 5036 Newport again and Ms. Strickland eventually answered the door. Det. Wasem's testimony regarding his knowledge of Ms. Strickland's presence at the house changed from the initial evidentiary hearing in this matter to the re-opened evidentiary hearing. During the initial hearing, Det. Wasem testified that, after Spires left the Newport residence via the rear door, it was Det. Wasem's belief that the residence was most likely empty and that he did not know anyone else was inside. When the Court re-opened the evidentiary hearing on July 13, 2017, Det. Wasem was recalled and acknowledged that his prior testimony was not correct.

         At the re-opened evidentiary hearing, Det. Wasem testified that, in May or June 2017 (after a month or more after the first evidentiary hearing), he realized that Det. Early had, in fact, advised him that a woman was inside 5036 Newport. Det. Wasem persisted in his testimony that he had not been advised that a child was inside. Det. Wasem corrected aspects of his prior testimony and represented to the Court that he had not intentionally provided incorrect information in his prior testimony.

         The undersigned credits Det. Wasem's representations that he did not intentionally provide false testimony in this matter. The undersigned observed Det. Wasem's demeanor as he testified and admitted that an important aspect of his prior testimony had been factually incorrect. The undersigned gave defense counsel additional time to prepare and cross examine Det. Wasem and permitted some additional leeway in asking questions as to whether Det. Wasem has a history of inaccurate testimony (he testified that he does not).

         Additionally, Det. Wasem's original testimony was not as inaccurate or misleading as Temple argues. The radio traffic includes an indication that, after the police arrested Temple and Syms but before any knock and talk, Det. Wasem thought the Newport house would most likely be empty. In particular, Det. Wasem states, “I don't think there's anyone inside, but just in case.” (Gov't Exh. 3 at 41:40) It is clear that Det. Wasem reviewed that radio traffic before his initial testimony in this matter because he testified about numerous events described in that recording, including his statement that he did not think anyone was inside the house. Thus, there was a point in time before the knock and talk that Det. Wasem did, in fact, believe that the house was most likely empty. The entire sequence of events includes the following: (1) Det. Wasem's initial belief that the house was likely empty, (2) Spires's statement to Det. Woodard that Myesha Strickland and her son were inside, (3) Det. Woodard's report to Det. Early that Ms. Strickland was inside, and (4) Det. Early's relay of that information to Det. Wasem. Based on this sequence of events, if Det. Wasem intended to mislead the Court with his initial testimony, it would have been much easier and simpler to stand by his prior testimony than to admit that his prior testimony was not entirely correct. Stated differently, the situation at 5036 Newport was dynamic; the radio transmissions and testimony make clear that the police were looking for three males, and two males were in custody before the knock and talk. After Spires left the rear of the residence, three male suspects were in custody. If Det. Wasem wanted to affirmatively mislead this Court, he could have simply stated that he did not recall Det. Early relaying any information to him regarding a person still inside. Instead, Det. Wasem notified the government that his prior testimony was incorrect and took steps to correct it. While the Court expects law enforcement officers to take great care in ensuring the accuracy of their testimony, the undersigned does not believe that Det. Wasem intended to mislead the Court regarding his prior knowledge of Ms. Strickland's presence in the Newport residence and his mistake is understood when placed in context of the entire sequence of events, including the radio traffic.

         Ms. Strickland testified that she lived at 5036 Newport Avenue with Syms and their infant son, as well as Tabitha Hunt (Syms's mother). She further testified that it was Ms. Hunt's house. Although Temple's booking sheet indicates that he lived elsewhere (Gov't Exh. 12A), Ms. Strickland testified that Temple stayed at the 5036 Newport Avenue residence. The evidence available to the undersigned indicates that Temple was likely an overnight guest at 5036 Newport Avenue on April 23-24, 2015.

         Ms. Strickland testimony confirmed that, after Temple's arrest, Spires made it back to the Newport Avenue residence. Ms. Strickland acknowledged that she knew Spires was gathering and destroying drug evidence, but she denied participating in the destruction of any evidence. As noted above, Spires testified that Ms. Strickland assisted him by holding a bag while he gathered up drugs and drug-related items. To the extent it may be relevant to the determination of any issue in this matter, the undersigned credits Spires testimony that Ms. Strickland participated in the destruction of evidence. Spires's motive to falsify his testimony in this specific regard is diminished relative to that of Ms. Strickland-Spires has already been charged and pleaded guilty while Ms. Strickland has not.

         Ms. Strickland also testified that, before the police apprehended Syms, Syms called to alert her and Spires about the police activity outside. Ms. Strickland testified that it was her belief that Spires left the house after all of the drugs were removed from the residence. Ms. Strickland acknowledged that she had no contact with the police on April 24, 2015, before Spires left the residence. Rather, her first interaction with the police on that day was when she opened the door to speak with Det. Wasem after Spires's arrest.

         At no time did the police ask Temple or Syms for consent to search the 5036 Newport residence. Similarly, after Spires was arrested, the police did not ask him for consent to search the 5036 Newport residence.

         Ms. Strickland answered the door and eventually allowed the police inside, consented to a search of the residence, and signed a written consent form. (Gov't Exh. 4) The consent to search form indicates that it was executed at 4:30 p.m., which was about 45 minutes after Temple's arrest. (Id.)

         Det. Wasem and Ms. Strickland each testified regarding the circumstances regarding their interaction and her consent to search the 5036 Newport Avenue residence. Important aspects of their testimony conflict in material respects, particularly regarding the voluntariness of Ms. Strickland's consent. For example, Ms. Strickland testified that the only reason she opened the door and consented to a search was that the police threatened to report her to the Division of Family Services (“DFS”).

         Regarding the written consent to search form, Ms. Strickland testified that she was not given a chance to review and contemplate the consent to search form presented to her. She claimed it was put in front of her for just a second or two. Despite claiming she barely saw the form, Ms. Strickland admitted that she: (1) filled out her own name on the top of the form; (2) wrote the date on the bottom of the form; (3) signed the form; and (4) provided the detailed pedigree information on the second page of the form, which included her age and date of birth. (See Gov't Exh. 4) Ms. Strickland testified that she did not read the acknowledgement on the consent form above the date and her signature which stated as follows:

I understand that I have the right to refuse consent to the search described above and to refuse to sign this form.
I further state that no promises, threats, force or physical or mental coercion of any kind whatsoever have been used against me to get me to consent to the search described above or to sign this form.

(Gov't Exh. 4)

         Det. Wasem, on the other hand, testified that he did not threaten Ms. Strickland in any way, and that in his career he had never threatened to call DFS. Det. Wasem further testified that he did not know Myesha Strickland's minor child was inside until he was let in, and that Ms. Strickland voluntarily signed the consent to search form. According to Det. Wasem, Ms. Strickland was sitting when she was presented with the consent to search form and that their conversation was calm in nature. Det. Wasem explained that he confirmed that Ms. Strickland could read and asked her to review the consent form before signing it.

         Det. Wasem testified that he thought that the men he was looking for that day might be armed. Det. Wasem also explained that, upon being allowed inside, officers conducted a brief protective sweep of the premises, looking only for other people in the house. The officers did not search for any evidence; rather they called out for anyone else in the house to make themselves known. Both Det. Wasem and Ms. Strickland testified that, throughout this process, the infant child remained asleep, thus corroborating Det. Wasem's testimony that he did not yell at Ms. Strickland.

         Both Det. Wasem and Ms. Strickland also testified that Ms. Strickland was not physically detained, was never arrested, was permitted to call Tabitha Hunt (Syms's mother), and that Ms. Hunt came to the residence and was allowed to be present with Ms. Strickland. Ms. Hunt asked what the police were investigating, and the police explained the situation to her and showed her evidence. Ms. Hunt knew one of the officers on the scene. At no time did Ms. Strickland or Ms. Hunt object to the search or seek withdraw consent to search 5036 Newport Avenue. There is no evidence that either Ms. Strickland or Ms. Hunt complained about the manner of the search or how Ms. Strickland had been treated.

         Ms. Strickland, although relatively young, was a 22 year-old adult who completed high school and can read and write and did not suffer from any sort of mental illness. Ms. Strickland did not appear to be under the influence of alcohol or any controlled substance, and did not appear to be in any physical or mental distress.

         The undersigned credits the testimony of Det. Wasem where it materially conflicts with Ms. Strickland's testimony regarding any threats or coercion and the voluntariness of her consent. Ms. Strickland has a substantial bias. The undersigned observed Ms. Strickland's testimony. Her demeanor and testimony was sometimes evasive and she manifested a clear bias against the prosecutor. For example, Ms. Strickland has had nearly daily communications with Syms while has been detained in this matter. Ms. Strickland and Syms concocted a plan whereby they were trying to arrange for a meeting in the federal courthouse for sex so that Ms. Strickland could become pregnant with another child by Syms. Yet she testified that she does not love Syms. Further, in February 2017 (before the evidentiary hearing), both Syms and his mother, Tabitha Hunt, were charged with conspiring to have Ms. Strickland withhold her testimony in this matter. (See E.D. Mo. No. 4:17 CR 82 JAR) Ms. Strickland acknowledged that these charges resulted, in part, due to Syms's interactions with Ms. Strickland. Ms. Strickland further acknowledged that, at one point, she was involved in conversations regarding breaking the prosecutor's head.

         The undersigned also does not credit Ms. Strickland's testimony that she was not given sufficient time to review the consent to search form (Gov't Exh. 4). Her own testimony is inconsistent. She claims it was placed in front of her to sign for only a few seconds, but she also testified that she printed her own name on the form, wrote the date on the form, provided the pedigree information that was placed on the back of the form, and she signed the form.

         The undersigned will provide additional reasons for crediting Det. Wasem's testimony, and provide a more detailed analysis of the specific issues raised herein in the discussion of consent below.

         The undersigned finds that Det. Wasem did not threaten to call DFS or have Ms. Strickland's minor child removed. To the extent Ms. Strickland feared she might be arrested, that fear was of her own making and was not the product of any inappropriate police conduct.

         Despite Spires's effort to remove or destroy evidence, after entering the 5036 Newport Avenue residence, the police found and seized drugs, phones, and weapons, including an assault rifle that appeared to be of the style of an AR-15 (Gov't Exh. 16), which was recovered from the room shared by Ms. Strickland and Syms.

         IV. Temple's Statements to Police on April 24, 2015

         The police interviewed Temple twice on April 24, 2015. Det. Wasem conducted the first interview after Temple was arrested and transported back to the Newport Avenue area. Later during the evening of April 24, 2015, Det. Sweeney transported Temple from the St. Louis Justice Center to the SLMPD Headquarters building for an interview. Both the Justice Center and the SLMPD Headquarters are located in downtown St. Louis, Missouri. It is undisputed that Temple was in custody during both interviews.

         Referring first to Det. Wasem's interview of Temple, after the police Temple returned to the 5000 block of Newport, he remained in a police vehicle. Det. Wasem testified that he read Temple his Miranda rights from a preprinted card.[16] According to Det. Wasem, Temple indicated that he understood his rights, waived those rights, and agreed to speak with the detective. Det. Wasem did not question Temple regarding the March 27, 2015 homicides. Det. Wasem testified that Temple appeared to be in his 20s, of normal intelligence and in good health, was not intoxicated or under the influence of drugs, and that no threats or promises were made to Temple. Det. Wasem did not ask Temple for consent or permission to search 5036 Newport Avenue. Det. Wasem did not record his interview of Temple. Det. Sweeney did not participate in Det. Wasem's interview of Temple.

         Temple was eventually taken to the St. Louis Justice Center by SLMPD Officers Metz and Flaugher. According to Det. Wasem's report, at some point in the booking process, Temple was offered an opportunity to make a verbal or written statement, but he declined. (Gov't Exh. 18)

         Det. Sweeney testified that, during the evening of April 24, 2015, he and Detective Funk transported Temple from the St. Louis Justice Center to the Homicide Division within the SLMPD headquarters. Det. Sweeney placed Temple in an interview room. Det. Sweeney's interview was video recorded. (Gov't Exh. 10) Det. Wasem did not participate in Det. Sweeney's interview of Temple.

         Det. Sweeney initially asked Temple some background questions, after which he provided the required Miranda warnings. After receiving his Miranda warnings, Temple indicated that he understood his rights and agreed to speak with Det. Sweeney. Det. Sweeney testified that Temple did not appear intoxicated or under the influence of any drugs, and did not appear to be suffering from any mental deficiency. Det. Sweeney testified that he did not threaten or coerce Temple, and he did not he make any promises to Temple. During the interview, Temple was permitted to ask questions. After more than an hour, however, Temple indicated that he wanted to “plead the Fifth” and Det. Sweeney terminated the interview. The video recording corroborates Det. Sweeney's testimony.

         V. Seizure and Search of Blue Buick on May 13, 2015

         Detective James Hyatt, SLMPD, testified at the evidentiary hearing regarding the seizure and subsequent search of a blue Buick LeSabre. As explained below, the police believed the Buick had been used by Temple in connection with the homicides under investigation. At the time of the hearing, Det. Hyatt had been in law enforcement for about fifteen years, and had been a homicide detective for about nine years.

         On May 12, 2015, co-defendant Demante Syms met with and provided information to investigators. Syms indicated that a blue Buick sedan had been driven during the commission of the murders of James Lace, Paige Schaefer, and Tammie Thurmond. Syms provided a detailed description of the Buick, including color, window tinting, and license plate information. Syms advised that the Buick had been in front of the Newport residence, but he had it moved to the area of Magnolia and Louisiana Streets, in South St. Louis, where it was abandoned. Syms indicated that, in addition to Temple, Tammie Thurmond had previously been in the vehicle. The police determined that the blue Buick was registered to a person named Oliver Cody.

         On May 13, 2015, Det. Hyatt located a blue Buick that matched the description and information provided by Syms the day before. The Buick was parked on a public street at 3227 Magnolia, near the area Syms had described. Det. Hyatt testified that, based on what Syms told him and his observation of the Buick on the street, he believed that the Buick had been abandoned. There was a weathered ticket on the windshield dated April 20, 2015, which indicated that the car had been ticketed while on Newport. The car had debris and leaves on it giving the appearance of a vehicle that had been left where it was parked and not driven in a while. (See Gov't Exhs. 5A1-5A9) Det. Hyatt testified that the vehicle appeared to be operational and nothing indicated that it was not operational. Det. Hyatt did not attempt to contact the registered owner of the vehicle.

         Based on the information provided to him by Syms and his observations of the vehicle, Det. Hyatt believed that the blue Buick had been used in the homicides and could have evidence inside, including possibly a murder weapon, shell casings, magazines, and similar equipment, as well as narcotic-related material. Det. Hyatt also believed that there might be identification evidence such as fingerprints, DNA, or receipts.

         After an evidence unit photographed the Buick where it had been located, Det. Hyatt had the Buick towed to a secure lot. (Gov't Exh. B) Det. Hyatt testified that he wanted to make sure that the vehicle was not moved or burned. That same day, Special Agent Mark Wynn, ATF, applied for and obtained a federal warrant authorizing the search of the blue Buick. (Gov't Exh. 5C; E.D. Mo. Cause No. 4:15 MJ 6128 TCM) S/A Wynn's application specifically stated that the purpose of the warrant was to search for evidence of a crime, and that the Buick was property used in committing a crime. United States Magistrate Judge Thomas C. Mummert, III (now retired) found probable cause and issued a warrant authorizing the search of the vehicle for:

items providing identification of those present inside the vehicle at any given time; fingerprints; blood stains; hair; other items possessing DNA characteristics; any item possessing genetic forensic, or other material; firearms; firearms-related materials such as ammunition, shell casings, and/or magazines; controlled substances; controlled substances-related materials.

(Id.)

         Myesha Strickland's testimony at the evidentiary hearing is consistent with Det. Hyatt's account. For example, Ms. Strickland testified that Syms was concerned about parking the Buick in front of the 5036 Newport residence because the car had been used in the homicides. Ms. Strickland also testified that Syms made arrangements to have the Buick towed away from the Newport residence. Ms. Strickland further testified that she had not seen anyone drive the Buick after it was towed.

         Additional findings of fact are included in the following discussion and conclusions of law.

         DISCUSSION, CONCLUSIONS OF LAW, AND RECOMMENDATIONS

         Temple filed motions to suppress the following: (1) Brittany Brown's identification of Temple; (2) his statements to law enforcement on April 24, 2015; (3) evidence seized pursuant to a State of Missouri Warrant, issued April 2, 2015, for account information associated with (314) 203-9177; (4) evidence seized in association with a State of Missouri Court Order, issued April 23, 2015, relating to locating a cellular phone having the number (314) 665-8458; (5) evidence seized from 5036 Newport Ave. on April 24, 2015; (6) evidence seized from Temple incident to his arrest on April 24, 2015; (7) evidence from the seizure and search of a 1998 blue Buick LeSabre; and (8) evidence associated with a January 19, 2015 traffic stop. (See ECF Nos. 228, 229, 231)

         Prior to the evidentiary hearing, Temple withdrew his motion to suppress evidence relative to the January 19, 2015, traffic stop. Temple has agreed that his challenge to the April 2, 2015, Search Warrant is limited to the four-corners of the affidavit and warrant (Gov't Exh. 1A). The Court received evidence and testimony regarding the remaining suppression issues.

         I. Motion to Suppress Identification

         A. Summary of Parties' Arguments

         In his Motion to Suppress Identification Testimony (ECF Nos. 229, 230), Temple asks the Court to suppress any identification evidence or testimony from Brittany Brown. As noted above, on April 15, 2015, Brown identified Temple from a sequential photo array prepared by Det. Sweeney. Temple argues that the sequential photo display and identification procedures Det. Sweeney used with Ms. Brown were tainted and improper in at least two ways. First, Temple contends that the photo array itself was unnecessarily suggestive and presented in a manner likely to result in a misidentification. Second, Temple contends that Ms. Brown's ability to independently identify Temple was contaminated because she was given detailed information about the suspect (Temple) and investigation. In particular, Temple suggests that Brown's identification of Temple was influenced by Daniel Schaefer, a relative of one the murder victims. Daniel Schaefer was interviewed by a local television news reporter regarding the murders, and Brown watched that interview.

         The government contends that the lineup and associated procedures were not impermissibly suggestive or constitutionally deficient.

         B. Analysis

         A defendant's constitutional right to due process may be violated by pretrial confrontation procedures that are unnecessarily suggestive and conducive to an irreparably mistaken identification. Foster v. California, 394 U.S. 440, 442 (1969); Stovall v. Denno, 388 U.S. 293, 302 (1967). “It is the likelihood of misidentification which violates a defendant's right to due process[, ]” and suggestive confrontations are disapproved because they increase that likelihood. Neil v. Biggers, 409 U.S. 188, 198 (1972). In determining whether an identification is reliable, courts look to such factors as the witness's level of certainty demonstrated at the confrontation, and the length of time between the crime and the confrontation. Neil, 409 U.S. at 199; Manson v. Brathwaite, 432 U.S. 98, 114 (1977). The identification testimony may be admitted if the reliability of the identification outweighs the corrupting effect of any undue suggestion. Id.

         The Court's consideration of the admissibility of identification testimony involves a two-part test. See United States v. Mshihiri, 816 F.3d 997, 1008-09 (8th Cir.) (citing United States v. Williams, 340 F.3d 563, 567 (8th Cir. 2003)), cert. denied, 137 S.Ct. 319 (2016). First, the Court must determine whether the identification procedures used were impermissibly suggestive. Second, if the procedures used were impermissibly suggestive, the Court looks to the totality of the circumstances to determine whether the procedures were nonetheless reliable or created a “substantial likelihood of irreparable misidentification.” Id. (internal quotations and citations omitted). “In determining the likelihood of misidentification, [the Court] consider[s] ‘the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.'” Id. (quoting Williams, 340 F.3d at 567) (internal quotations omitted). See also United States v. House, 823 F.3d 482 (8th Cir. 2016) (applying two-part test to photographic line-up); United States v. Omar, 786 F.3d 1104 (8th Cir. 2015) (applying two-part test to use of sequential use of photographs). If a court concludes that a witness's an out-of-court identification was constitutionally sound, there is no need to further consider the argument of whether that witness's in-court identification should be suppressed as fruit of the poisonous tree. See House, 823 F.3d at 488 (quoting United States v. Hadley, 671 F.2d 1112, 1116 (8th Cir. 1982)).

         A witness's prior relationship with the suspect, however, is an important consideration in the analysis. The Eighth Circuit has explained that concerns regarding undue suggestiveness are absent when the identifying witness is already familiar with the suspect's appearance. See Omar, 786 F.3d at 1109-10 (citing United States v. Dobbs, 449 F.3d 904, 909-10 (8th Cir. 2006) (distinguishing identifications of strangers during a short encounter), cert. denied, 549 U.S. (2007)).

         Applying the foregoing legal principles to the facts established at the evidentiary hearing, the undersigned concludes that the identification procedures used by Det. Sweeney were not impermissibly suggestive.

         Det. Sweeney created a photo array consisting of six individual photographs using a computer program which selected five individuals having characteristics similar to Temple. (Gov't Exh. 9A)[17] Nothing in those photographs would suggest that any particular photograph was more important or noteworthy than any other-the sizes of the images were similar, the backgrounds were the same, and the individuals were similarly dressed and groomed (although one individual had a darker shirt than the others). There is no legal problem with the fact that Det. Sweeney presented the images sequentially, rather than in a six-person array on a single sheet. See Omar, 786 F.3d 1108. Moreover, Det. Sweeney documented his interview of Brown, including his presentation of the photographs to her, with a video recording. (Gov't Exh. 8) Det. Sweeney showed her each of the photographs; there is no indication in that video that Det. Sweeney suggested to Brown which photograph she should focus upon. Rather, Det. Sweeney advised Brown that it was acceptable if she did not identify anyone.

         Brown identified Temple (Gov't Exhs. 8, 9B) and executed a photographic lineup acknowledgement form representing as follows:

No law enforcement officer or any other person present at the time I viewed the photographs informed me if the suspect was or was not in the array, nor did anyone suggest to me at any time, in any way, that I should select any particular individual.
I made this judgment of my own free will and do so without any threats or promises given to me.

(Gov't Exh. 9C) The undersigned concludes that the photographic identification procedures employed were not impermissibly suggestive.

         Furthermore, in this case, concerns for misidentification are absent because the video recording and other evidence demonstrate that Brown had an established relationship with Temple before the shooting. Ms. Brown knew Temple by the name K.J., she described his appearance, and she represented that she had known him for about a year and that he was her drug dealer. Ms. Brown had a phone number in her cell phone which was identified as belonging to K.J. (Gov't Exh. 1A) Even though Brown did not identify Temple by name when she called 911 after being shot, she stated that the shooter was wearing a gray sweatshirt. (Gov't Exh. 6) Brown's description of the shooter matched a security camera image of Temple taken at a local store on the day of the shooting. (Gov't Exh. 7) Cf. Omar, 786 F.3d at 1108 (noting that, in assessing the constitutionality of an identification technique, courts consider, among other things, the accuracy of the witness's prior description).

         Although Brown watched Daniel Schaefer's interview on the news, Daniel Schaefer never identified Temple by name or nickname. There is no reason to conclude that Brown's identification of Temple resulted from anything other than her own recollection. The undersigned finds that Brown knew and was familiar with Temple and his appearance before the shooting. Thus, the fact that her identification occurred about a month after the murders and shootings is of no moment in this case. Concerns regarding undue suggestiveness or a risk of misidentification are absent in this case. See id. at 1109-10.[18]

         Finally, in a supplemental pleading (see ECF No. 300), Temple argues that the Court violated his due process rights and he should have been permitted to present additional evidence and testimony that Ms. Brown's identification was tainted by contact with Daniel Schaefer and Zach Schaefer. As a factual matter, a full consideration of the existing record, including the video of Ms. Brown's interview refutes Temple's argument. As a legal matter, Ms. Brown knew and was aware of Temple well before she identified him and she generally described Temple in the 911 call after she was shot. See Omar, 786 F.3d at 1109-10. Thus, accepting as true the proffered basis for the testimony of Daniel and Zach Schaefer, such information would not meaningfully alter the analysis of the identification issue raised herein.

         Temple's due process rights have been scrupulously honored throughout these proceedings. When he has made a reasonable showing of relevance to issues actually before the Court, rather than mere speculation based on theories lacking relevant legal support, he has been permitted to call additional witnesses and present additional testimony.

         For the foregoing reasons, Temple's Motion to Suppress Identification Testimony should be denied.

         II. Motion to Suppress Statements

         A. Summary of Parties' Arguments

         After his arrest on April 24, 2015, Temple was questioned two different times by two different police officers. Temple first made statements to Det. Wasem shortly after the foot chase and arrest described above. Temple was then transported to the St. Louis Justice Center for booking by different officers who did not question Temple. A police report reflects that Temple declined an offer to make a statement in connection with his booking. After booking, during the evening of April 24th, Det. Sweeney transported Temple from the Justice Center to the homicide division at the St. Louis Police Headquarters and conducted another interview.

         In his Motion to Suppress Statements (ECF No. 228), Temple asks the Court to suppress all statements he made to law enforcement after he was arrested on April 24, 2015, arguing that any statements he made to the police on April 24, 2015, were obtained in violation of his constitutional rights.

         Regarding the statements he made to Det. Wasem, Temple argues that those statements must be suppressed because he was not read his Miranda rights prior to be questioned by Det. Wasem. Regarding his statements to Det. Sweeney, Temple contends that by declining to make a statement during booking, he exercised his right to remain silent and to counsel, and he did not thereafter initiate any contact with investigators to indicate that he wished waive his rights. Thus, according to Temple, any statements he made to Det. Sweeney must be suppressed.

         Temple offers additional arguments regarding his statements to Det. Sweeney. Temple contends that any waiver and statements he made to Det. Sweeney resulted from police coercion. Temple suggests that the length and nature of his custody on April 24th was inherently coercive, and he was tricked by promises of leniency into making statements. Temple also argues that his statements to Det. Sweeney must be suppressed because the police failed to present him to a Magistrate Judge “as soon as practicable.”

         Temple also argues that any statements he gave should be suppressed as fruit of the poisonous tree because (1) he was arrested without lawful authority (e.g., there was no probable cause to arrest him), and (2) his arrest was the product of an ...


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