United States District Court, D. South Dakota, Southern Division
ORDER ADOPTING REPORT AND RECOMMENDATION
KAREN E. SCHREIER, District Judge.
Defendant, Lance Majestic House, is charged with one count of on or about July 26, 201, knowingly possessing a firearm after having been previously convicted of a crime punishable by imprisonment for a term exceeding one year. Defendant moves to suppress as evidence the identification of Lance Majestic House by a witness after the witness was shown a picture line up that included a photo of defendant. Docket 19. Defendant contends his due process rights were violated when he was singled out in that he is the only person in the pretrial identification lineup with a pony tail. In addition, defendant contends only one other person in the lineup had tattoos on his neck, and that this other individual with tattoos on his neck had a completely different hair style-a shaved head. Defendant also contends he has lighter skin than the other individuals in the photo lineup, and all of the men with the exception of defendant and one other individual were Afro-American.
Magistrate Judge John E. Simko conducted an evidentiary hearing on March 5, 2014, with regard to the motion to suppress the results of the photographic lineup. After hearing testimony, receiving exhibits and written argument and hearing oral argument, Magistrate Judge Simko issued a report and recommendation in which he recommended that defendant's motion to suppress be denied. Docket 24. Defendant filed objections to the report and recommendation. Docket 25.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636 (b)(1) a district court judge shall make a de novo determination of those portions of the magistrate judge's report or specified proposed findings or recommendations to which objection is made. The district court judge may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. After carefully conducting a de novo review of the magistrate judge's findings and recommendations and a review of the entire record in this case, this court accepts the findings and recommendations of the magistrate judge as set forth in this memorandum opinion.
At the March 5, 2014, evidentiary hearing Emmet Warkenthein, Special Agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives, testified that he was called on July 26, 2013, regarding defendant's arrest and to follow up an investigation regarding the possibility of defendant being in possession of a firearm and having a previous conviction for a felony offense.
As part of his investigation Agent Warkenthein met with witness Taylor Hruska, the person identified in the police reports as having called the 911 dispatch on July 26, 2013, after looking outside her window and observing individuals getting into a fight or loud discussion. The witness reported observing one individual pull out a small gun, which she described as a pistol, pointing it at the other individual, and then racking the slide two times.
The witness provide a physical description of the individual with the gun to the police. She described the individual as wearing a black shirt, blue jeans or jeans, and a red hat. Agent Warkenthein testified that the witness did not describe the person's skin tone or racial ethnicity. Suppression Hearing Transcript, p. 6.
When Agent Warkenthein met with witness Taylor Hruska on August 20, 2014, he showed her a colored photo lineup. The photo lineup that contains photos of six individuals is Government's Exhibit No. 1. Agent Warkenthein testified that witness Taylor Hruska immediately pointed out Photo No. 2 as the individual she saw pull out the gun. Defendant Lance Majestic House is the person shown in Photo No. 2. Although the photo lineup individuals' names were visible to the witness at the time she made the identification, she had no prior dealings with defendant and did not know his name.
Agent Warkenthein testified that the process used to select the particular photos for the lineup in Government's Exhibit No. 1 was conducted by an intel analyst at the Sioux Falls Police Department who used a program on the department's computer to utilize all the booking photos of individuals who had been booked into the Minnehaha County Jail, and then utilized those photos to try to obtain one similar to the individual who had been arrested-defendant Lance Majestic House. Certain criteria such as dark hair, tattoos, et cetera, were utilized to attempt to formulate a lineup of individuals with similar features and similar appearance to defendant Lance Majestic House.
Agent Warkenthein testified on cross-examination that it was unknown to him whether defendant was Hispanic, Black, or Native American, and that in compiling the lineup pretty much all of the races were involved. Law enforcement was focusing on trying to find similar skin tones, dark hair chin beard, and tattoos. Three of the six individuals had neck tattoos. Defendant contends he had a bushier haircut than others in the photo lineup.
Agent Warkenthein testified that the Bureau of Alcohol, Tobacco, and Firearms utilizes a six-pack photo lineup where six photos are laid out at one time. Agent Warkenthein made no suggestion to the ...