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United States v. Henry

United States District Court, D. South Dakota, Central Division

June 13, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES WADE HENRY, SR., Defendant.

          OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING DEFENDANT'S MOTION TO SUPPRESS

          ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE

         James Wade Henry, Sr. ("Henry") moved to suppress evidence obtained from Henry's cell phone and statements made by him to law enforcement on September 30, 2014. Docs. 28, 29. After an evidentiary hearing was held, Magistrate Judge Mark A. Moreno issued a Report and Recommendation, recommending that Henry's motion be denied in its entirety. Doc. 51 at 16. Henry has filed objections to that recommendation.[1] Doc. 53. This Court has conducted a de novo review of the record, and for the reasons explained below, this Court overrules Henry's objections and adopts Judge Moreno's Report and Recommendation.

         I. FACTS

         On September 29, 2014, FBI Special Agent Alicia Rowland ("Special Agent Rowland") was notified by a victim specialist that a report regarding allegations against Henry was made to the Mission office of the South Dakota Department of Social Services ("DSS"). T. 8. Special Agent Rowland interviewed the DSS report complainant, Amanda Brave ("Brave"), the following day.[2] T. 9.

         Brave told Special Agent Rowland that she had been dating Henry for approximately three or three-and-a-half months, and that Henry lives with his mother in St. Francis, South Dakota, with his two biological children, J.K.H. and J.M.H. Ex. 1 at 0:55; Ex. 5 at 2. In September of 2014, J.K.H. was three years old and J.M.H. was six years old.[3] Ex. 2 at 1:44, 18:55. Brave reported that she has stayed with Henry at his mother's house approximately two to four times a week during the last few months of their relationship. Ex. 1 at 3:04. When Brave would stay with Henry, she would sleep in his bedroom with Henry, J.K.H., and J.M.H, all in Henry's king-sized bed. Ex. 1 at 3:40; Ex. 5 at 2. Brave told Special Agent Rowland that both girls always sleep in underwear without a top on. Ex. 1 at 6:33; Ex. 5 at 2. Brave stated that they would normally sleep in the following order: Brave, Henry, and then both of the girls. Ex. 1 at 4:38; see also T. 11.

         On the evening of Saturday, September 27, 2014, Brave put J.K.H. in a one-piece body outfit for bed that had "little short trunks." Ex. 1 at 9:50; Ex. 5 at 2; see also T. 11. That night, Brave was sleeping in Henry's bed in her normal spot by the wall. Ex. 1 at 7:23. J.KH. came into the bedroom and said she was going to lay by Brave, and Brave responded that doing so was okay. Ex. 1 at 7:23; Ex. 5 at 3; see also T. 11-12. Later, James and J.M.H. came to bed and the four went to sleep in the following order: Brave, J.K.H., Henry, and then J.M.H. Ex. 1 at 4:53, 7:23, Ex. 5 at 3; see also T. 11-12. Brave then described how she woke up around midnight to Henry moving J.K.H. from the side closest to her to the other side of him. Ex. 1 at 8:00; see also T. 12. Brave reported that although Henry's bedroom doorway is covered with a blanket, the room was lit enough for her to see because the living room light was still on. Ex. 1 at 9:10; Ex. 5 at 3. Brave stated that Henry turned his back towards her after moving J.K.H. to his other side and that J.K.H. was lying on her back with her right leg over Henry's right hip. Ex. 1 at 8:00, 9:26, 10:47; see also T.12. According to Brave, she saw Henry put his hands up to his mouth, spit on his fingers, and then place his hands down toward J.K.H.'s private area, moving his right arm in a circular motion. Ex. 1 at 8:40, 11:18; Ex. 5 at 3; see also T. 12. Brave then sat up in bed and said that she saw Henry's hand was underneath J.K.H.'s clothing. Ex. 1 at 9:55, 11:40; see also T. 12. Brave reported that Henry pulled his hand away and acted like he was sleeping. Ex. 1 at 9:55, 11:40; see also T. 12. Brave got out of bed, went to the bathroom, and then asked Henry for his phone. Ex. 1 at 11:40; Ex. 5 at 3-4; see also T. 12-13. Henry gave Brave his cell phone and she called her cousin, Shawna Schmidt ("Schmidt"), to tell Schmidt what she saw and asked what she should do. Ex. 1 at 12:50. Schmidt told Brave to leave, so Brave grabbed her belongings and left, taking Henry's car and cell phone. Ex. 1 at 11:40, 12:50; Ex. 5 at 3-4; see also T. 12. Brave drove Henry's car until it ran out of gas, at which point Schmidt came to pick Brave up. Ex. 1 at 12:50; T. 13.

         Brave told Special Agent Rowland that she has noticed things on other occasions, such as J.M.H. hiding from Henry at bath times or J.M.H. waking up in the middle of the night crying, but Henry told her that J.M.H. woke up at times because of leg cramps from riding her bike too often. Ex. 1 at 5:41, 17:47, 18:39; Ex. 5 at 2. Brave also reported that she saw pictures of Henry's girls on his phone, including one with J.K.H. lying on a fold-out couch in her underwear with her head turned away. Ex. 1 at 25:30, 26:50; Ex. 5 at 5; see also T. 13. Special Agent Rowland took possession from Brave of Henry's phone, which was already turned off, as potential evidence. T. 13. Brave told Special Agent Rowland what Henry's password to his phone was, but Special Agent Rowland testified that she did not look at the phone prior to procurement of a search warrant. T. 13-14, 34. A search warrant for the cell phone was later obtained, and Special Agent Rowland searched the phone on October 23, 2014. T. 13.

         After speaking with Brave, Special Agent Rowland attempted to locate Henry. T. 14. Brave had told Special Agent Rowland that Henry worked at TECRO, a business located in Rosebud, South Dakota, so Special Agent Rowland and Special Agent Mark Kettell from the Rosebud Sioux Tribe Law Enforcement Services ("Special Agent Kettell") went to TECRO to see if Henry was working. T. 14-15. Special Agent Rowland asked the receptionist if Henry was there, and the receptionist went into a back room and came back out with Henry. T. 14. Special Agent Rowland did not see any other people in the building other than the receptionist and Henry and testified that Henry "invited [the agents] back to his office." T. 14-15, 28-29. Henry's office was approximately ten feet by eight feet with a single window and had two chairs, one behind a desk and another in front of the desk. T. 14-16. Henry retrieved another chair from a different room so that both Special Agent Rowland and Special Agent Kettell could sit. T. 14. Henry closed the door and sat in the chair behind his desk. T. 14-15, 29, 42.

         Special Agent Rowland testified that she informed Henry that there had been allegations made against him for child sexual abuse, that "he was not under arrest, and that it was voluntary to speak with [the agents]." T. 14, 16, 29-30, 42. Special Agent Rowland further testified that she asked Henry "if he was still willing to speak with [the agents] and he said that he was." T. 15-16. At that point, Special Agent Rowland started her audio recording device.[4] T. 16, 30. During the approximately thirty-seven minute interview, Henry denied the allegations, see, e.g., Ex. 2 at 15:21, 17:01, 21:15, 34:35, and essentially told the agents that Brave concocted the entire story, see, e.g., Ex. 2 at 9:52, 17:27, 27:56. Special Agent Rowland employed deceptive tactics when questioning Henry after he denied the allegations, including falsely telling Henry that the alleged victim disclosed abuse. T. 32, 44; Ex. 2 at 15:03, 17:05. Special Agent Rowland also told Henry that pictures on his phone bordered on child pornography and were "inappropriate." T. 32-33; Ex. 2 at 19:02, 19:58. Those tactics, however, were unsuccessful, and Henry continued to deny the allegations. T. 44. Special Agent Rowland concluded the interview because Henry requested to take a polygraph examination. T. 43; Ex. 2 at 26:07. Henry was not arrested after Special Agent Rowland concluded the interview. T. 43, 45.

         Special Agent Rowland testified that Henry did not express any confusion or have any questions after she informed him that the interview was voluntary. T. 40. According to Special Agent Rowland, Henry did not appear to have any mental deficiencies, was not intoxicated or impaired by alcohol or drugs during the interview, and spoke intelligently and appropriately when responding to questions. Doc. 46; see also Ex. 2. Special Agent Rowland also testified that Henry was not handcuffed or otherwise restrained, [5] never expressed a desire to end the interview, and was free to move about the office during the interview. T. 40, 42-43.

         Thereafter, Special Agent Rowland prepared an affidavit of probable cause to obtain a search warrant for Henry's phone. T. 22; Ex. 9. In preparing that affidavit, Special Agent Rowland contacted Brave again to clarify what Brave meant in her previous interview when she described the photos on Henry's phone as "creepy."[6] T. 23, 35-36. Special Agent Rowland testified that Brave "stated that she found the pictures on [Henry's] phone inappropriate." T. 23, 35-36, 47. In her affidavit of probable cause, Special Agent Rowland attested that "Brave described the pictures [on Henry's cell phone] as being inappropriate and creepy." Ex. 9 at ¶ 11. A search warrant was later obtained and was executed on October 23, 2014. T. 24. Three photos were found on the phone, including one photo of J.K.H. with her head facing the other direction, lying on her stomach on a fold-out couch, with just a diaper on. T. 26; Ex. 12.

         II. DISCUSSION

         This Court reviews a report and recommendation pursuant to the statutory standards found in 28 U.S.C. § 636(b)(1), which provides in relevant part that "[a] judge of the [district] court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." "In the absence of an objection, the district court is not required 'to give any more consideration to the magistrate's report than the court considers appropriate.'" United States v. Simeon, 115 F.Supp.3d 981, 993 (N.D. Iowa 2015) (quoting Thomas v. Am, 474 U.S. 140, 150 (1985)). Henry objects to Judge Moreno's determination that Henry was not in custody, that he made voluntarily statements, and that the evidence from his cell phone was lawfully seized. Doc. 53. There is essentially no difference between these arguments and the arguments that Judge Moreno rejected when considering Henry's motion to suppress. See Docs. 28, 53. This Court has conducted a de novo review of the Report and Recommendation and agrees in all respects with Judge Moreno's reasoning. Nonetheless, this Court will explain why Henry's objections are overruled.

         A. Miranda's ...


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