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United States v. Bissonette

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

September 6, 2016





         On June 17, 2014, a grand jury indicted defendant Ryan Bissonette for count I: aggravated sexual abuse by force in violation of 18 U.S.C. §§ 1153, 2241(a)(1) and 2246(2)(C) and count II: sexual abuse in violation of 18 U.S.C. §§ 1153, 2242(2) and 2246(2)(C). (Docket 2). On August 26, 2015, Mr. Bissonette filed a motion to suppress evidence seized from his pickup and a motion to exclude eyewitness identification testimony. (Dockets 96 & 98). The motions were referred to United States Magistrate Judge Daneta Wollmann pursuant to 28 U.S.C. § 636(b)(1)(B) and the standing order of March 9, 2015. The magistrate judge held an evidentiary hearing on October 28, 2015. (Docket 108).

         On June 2, 2016, Magistrate Judge Wollmann issued a report and recommendation on the motion to suppress (“Suppression R&R”) and a report and recommendation on the motion to exclude eyewitness identification testimony (“Identification R&R). (Dockets 115 & 116). The defendant timely filed objections to the Identification R&R and the government timely filed objections to the Suppression R&R.[1] (Dockets 117 & 120).

         Under the Federal Magistrate Act, 28 U.S.C. § 636(b)(1), if a party files objections to the magistrate judge's proposed findings and recommendations, the district court is required to “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id. The court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id.

         The court completed a de novo review of those portions of both of the reports and recommendations to which objections were filed. For the reasons stated below, the objections of both parties are overruled and the Suppression R&R and the Identification R&R are adopted in full.



         Mr. Bissonette filed two objections to the Identification R&R. (Docket 117). Those objections claim the magistrate judge erred in finding Mr. Bissonette failed to meet his burden of proof that the photographic line-up was impermissibly suggestive because:

1. The photographs which were retained show the defendant was engaged in wrongdoing or was the suspect; and
2. The magistrate judge applied the wrong legal standard when the government failed to preserve all of the photographic evidence.

Id. at pp. 5 & 7.

         The government filed three objections to the Suppression R&R. (Docket 120). Those objections claim the magistrate judge erred when she concluded:

1. Mr. Bissonette had not been informed he had a right to refuse to consent to search;
2. Mr. Bissonette's consent to search was not voluntarily made; and
3. The government failed to establish consent by a preponderance of the evidence.

Id. at p. 1.

         To resolve the parties' objections, the court must first conduct a de novo review of the evidence presented at the hearing. The following statements of fact developed from the uncontested findings of the magistrate judge and the court's own additional findings constitute that de novo review.


         At approximately 4 a.m. on August 8, 2013, Jackie Janis reported to law enforcement she had been sexually assaulted by a man who had offered her a ride home but instead took her into the country and assaulted her. (Docket 115 at p. 2). She described the driver's pickup as black or dark in color. Id.

         While the assault was occurring, Ms. Janis struck the man with a small, portable propane tank. Id. She was then able to escape from the pickup. Id. Not wanting to be left alone out in the countryside, Ms. Janis jumped into the box of the pickup as it drove off. Id.

         While going through the East Ridge trailer court the driver slowed and Ms. Janis jumped from the back of the pickup Id. At some time she had lost one of her sandals and her cell phone in the pickup. Id. She described the sandal as being white with yellow straps. Id. Once out of the pickup, Ms. Janis asked some bystanders if they knew the name of the driver of the pickup. Id. The bystanders gave her the man's name and identified him as a mechanic who lived in the housing area. Id. Because the bystanders refused to provide her any assistance, Ms. Janis walked to the nearby convenience store and contacted law enforcement. Id.

         During the initial interview, Ms. Janis appeared upset, distraught and crying. (Docket 111 at p. 40:14). She also appeared to be intoxicated, although during the interview the officers could understand her. Id. at p. 40:15-19. Ms. Janis was unable to recall the name given to her, but she remembered the bystanders indicated he was a mechanic living in East Ridge. (Docket 115 at p. 2). Law enforcement took Ms. Janis to the trailer court to show them where she got out of the pickup and where the bystanders were. Id. Ms. Janis was then taken to the Indian Health Service hospital to receive medical attention. Id.

         While Ms. Janis was at the hospital, Officers Whary and Jack discussed who may be a possible suspect of the assault. Id. at p. 3. They identified Dominic Waters and Ryan Bissonette as two mechanics known to live in East Ridge housing. Id. Photographs were taken of a black GMC Jimmy pickup and a dark colored Sonoma pickup parked at Mr. Waters' residence. Id.

         Officer Whary decided to go the police department and selected five photographs to show to Ms. Janis. Id. He chose mug shots of Mr. Waters and Mr. Bissonette because they were both mechanics living in the trailer court, and chose three other Native American men of a similar appearance with short hair. Id. at p. 3 & Docket 116 at p. 3. Officer Jack recalled Ms. Janis told them her assailant had short hair, but Officer Whary did not recall Ms. Janis giving them a physical description of her assailant. (Docket 116 at p. 3). Each of the five selected photographs was a mug shot in front of a height chart and consisted of frontal and profile presentations. Id. All of the men depicted were of approximately the same size and height, except Mr. Waters who was a little heavier. Id. All of the photographs contained the names of the individuals portrayed and the date the mug shot was taken. Id.; see also Exhibit 10 and Docket 111 at pp. 96:11-19 & 130:1-7. Mr. Bissonette's mug shot showed him wearing a plain, white t-shirt and Mr. Bissonette appeared in jail stripes. Exhibits 10 & 11.[2]

         Officer Whary took the two vehicle photographs and five line-up photographs to Ms. Janis at the hospital.[3] Officer Whary laid out the five photographs before Ms. Janis and asked “Can you identify your attacker from these photographs.” (Docket 116 at p. 4) (referencing Docket 111 at p. 16:1-2). She looked over the photographs laid out before her and when she saw the photograph of Mr. Bissonette “almost immediately . . . hit her hand on the photograph and became irate and said ‘That's the [expletive] that did it to me.' ” Id. (referencing Docket 111 at p. 16:13-15).

         At the officer's instructions, Ms. Janis circled the profile and frontal photographs of Mr. Bissonette, signed and dated the photograph. Id. Because Officer Whary believed he would not need the other four photographs, they were disposed of. Id. The officer testified it may have been a mistake to dispose of the photographs but it was not done to hide anything.[4] Id. Officer Whary does not remember the names of the other three individuals included in the photographic line-up.[5] Id.

         Ms. Janis identified Exhibit B as a photograph of the vehicle which her assailant had been driving.[6] (Docket 115 at p. 3). Based on this photographic identification, Officers Whary and Jack obtained a tribal search warrant to search the black 1995 GMC Sonoma pickup parked at Mr. Waters' residence. Id. When the search uncovered nothing, Mr. Waters pointed the officers to a nearby trailer where another dark colored pickup belonging to Mr. Bissonette was parked. Id. at p. 4.

         Officers Whary and Jack, together with Bureau of Indian Affairs Agent Hooper went to Mr. Bissonette's residence. Id. Mr. Bissonette's black Chevrolet pickup was parked in the driveway. Id.; see also Docket 116 at p. 5. As the officers approached the residence, Officer Jack looked into the pickup to see if Mr. Bissonette was inside. (Docket 115 at p. 4). Officer Jack observed a white sandal with yellow straps in the backseat of the pickup.[7] Id. He reported this finding to Officer Whary and Agent Hooper. Id.

         Officer Whary knocked on the front door of the trailer and a family member of Mr. Bissonette opened the door. Id. at p. 6. The officer asked if Mr. Bissonette was home. Id. A family member went to the back of the trailer and woke up Mr. Bissonette. Id. As he approached Officer Whary, Mr. Bissonette was advised he was being detained and handcuffed but not arrested. Id. Once he was escorted outside, Agent Hooper asked if the black pickup in the driveway belonged to Mr. Bissonette. Id. Mr. Bissonette said the pickup belonged to him, but that it was registered to someone else. (Docket 111 at p. 185:19-23). Agent Hooper asked Mr. Bissonette for consent to search the pickup.[8] (Docket 115 at p. 6). The encounter between Mr. Bissonette and Agent Hooper was not confrontational.[9] (Docket 111 at p. 190:2-4). Mr. Bissonette had an odor of alcohol about him, but Agent Hooper did not believe he was intoxicated.[10](Docket 116 at pp. 6-7). The request for consent to search Mr. Bissonette's pickup occurred less than five minutes after he was awakened. Id. at p. 6.

         Mr. Bissonette orally agreed to a search of his pickup and the handcuffs were removed so he could complete the consent form. (Docket 116 at p. 7). A consent to search form was prepared by Agent Hooper. (Docket 111 at p. 186:3-4). While the agent was filling out the form, Mr. Bissonette provided his Social Security number. Id. at p. 187:7-14. Mr. Bissonette signed his name and filled in his telephone number on the consent to search form. (Docket 111 at p. ...

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