United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM, REPORT, AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE - MOTIONS TO SUPPRESS
M. BODENHAUSEN UNITED STATES MAGISTRATE JUDGE.
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)
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)
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.
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. (ECF No. 30)
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.
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.
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.
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.
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 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.
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.
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.
March 27, 2015 Homicides and Identification of
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.
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.
photograph from surveillance at a Burlington Coat Factory
store, from March 27, 2015, shows Temple wearing a gray
sweatshirt. (Gov't Exh. 7)
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.
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.
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.
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.
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)
Locating and Arresting Temple on April 24,
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.
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
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.
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
(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.
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.
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
(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.”
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.
April 24th, Det. Wasem and the investigative team began
receiving location information from the cellular provider,
pursuant to the April 23rd Court Order. 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
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.
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
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. 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
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).
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
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.
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. 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)
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.
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.
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. 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.
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.
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
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.
radio traffic also indicates when the surveillance team was
relying on Cell Site Simulator technology to locate
Temple's phone. 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.
Search of 5036 Newport Avenue on April 24,
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.
Wasem testified that he planned to conduct a “knock and
talk.” 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.
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. Two officers
were in the rear of the 5036 Newport residence when Spires
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. Spires refused to allow the
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.
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.
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.
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
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).
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
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.
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.
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.
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.
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.
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
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
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)
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.
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.
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.
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.
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.
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.
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.
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.
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.
Temple's Statements to Police on April 24,
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
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. 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.
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)
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.
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.
Seizure and Search of Blue Buick on May 13,
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.
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.
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.
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.
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
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.
findings of fact are included in the following discussion and
conclusions of law.
CONCLUSIONS OF LAW, AND RECOMMENDATIONS
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)
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
Motion to Suppress Identification
Summary of Parties' Arguments
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.
government contends that the lineup and associated procedures
were not impermissibly suggestive or constitutionally
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.
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)).
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)).
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
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) 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.
identified Temple (Gov't Exhs. 8, 9B) and executed a
photographic lineup acknowledgement form representing as
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
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
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).
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.
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.
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.
foregoing reasons, Temple's Motion to Suppress
Identification Testimony should be denied.
Motion to Suppress Statements
Summary of Parties' Arguments
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.
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.
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.
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.”
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