United States District Court, D. South Dakota, Western Division
ORDER ADOPTING REPORTS AND RECOMMENDATIONS
JEFFREY L. VIKEN CHIEF JUDGE
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).
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
(Dockets 117 & 120).
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
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.
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
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
Id. at pp. 5 & 7.
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
3. The government failed to establish consent by a
preponderance of the evidence.
Id. at p. 1.
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
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.
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.
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
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.
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.
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.
Whary took the two vehicle photographs and five line-up
photographs to Ms. Janis at the hospital. 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).
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. Id. Officer Whary does not
remember the names of the other three individuals included in
the photographic line-up. Id.
Janis identified Exhibit B as a photograph of the vehicle
which her assailant had been driving. (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.
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. Id. He
reported this finding to Officer Whary and Agent Hooper.
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. (Docket 115 at p. 6). The encounter
between Mr. Bissonette and Agent Hooper was not
confrontational. (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.(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.
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. ...