Submitted: October 18, 2019
from United States District Court for the District of North
Dakota - Fargo
LOKEN, SHEPHERD, and STRAS, Circuit Judges.
SHEPHERD, CIRCUIT JUDGE
Brent Daigle appeals the district court's denial of his
motion to suppress and request for a hearing pursuant to
Franks v. Delaware, 438 U.S. 154 (1978). Having
jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
November 9, 2015, Daigle's wife, Celetra, reported to
Griggs County Sheriff Robert Hook that she believed her
twelve-year-old daughter, R.M., had been sexually abused by
Daigle, the minor's step-father. Sheriff Hook arranged
for R.M. to speak with a forensic interviewer at Red River
Children's Advocacy Center (RRCAC) on November 12, 2015.
Sheriff Hook observed the forensic interview in real-time on
a closed-circuit television in a separate room at RRCAC.
the forensic interview, R.M. disclosed that Daigle had been
sexually abusing her since she was seven years old and that
the last incident had occurred about one month prior. R.M.
provided explicit details regarding how, where, when, and how
often Daigle had sexually abused her, and stated that it was
his usual practice to take video recordings of the sexual
abuse. She explained that Daigle had used various electronic
devices to record the abuse over the years, but most recently
he had used his cell phone, which she described as a silver
phone in a camouflage case with tan rubber parts. In terms of
brand, R.M. stated, "I know it's not an iPhone. I
think it's a Samsung. One of those bigger Samsungs."
After the forensic interview, Sheriff Hook asked Celetra to
describe Daigle's cell phone. Celetra described it as an
LG phone in a camouflage case with tan-brownish corners. She
informed Sheriff Hook that Daigle had the LG phone in his
possession and that he was on his way to Louisiana.
evening, law enforcement officers obtained Celetra's
consent to search the family residence, in which they found
and seized numerous electronic devices capable of storing
electronic images. On November 13, 2015, Sheriff Hook applied
for a warrant to search the seized devices and, in support,
gave a sworn telephonic affidavit to North Dakota District
Judge James D. Hovey. He informed Judge Hovey about
R.M.'s forensic interview, summarized R.M.'s detailed
allegations of sexual abuse, and noted that, according to
R.M., Daigle had used a silver phone in a camouflage case
with tan rubber parts, among other devices, to record the
abuse. Judge Hovey asked whether the silver phone was listed
in the warrant application as a device to be searched.
Sheriff Hook clarified that it was not included in the
warrant application, because Daigle was on his way to
Louisiana and likely had the phone in his possession. Judge
Hovey issued the warrant to search the devices seized from
the family residence.
that day, Daigle was arrested in Louisiana on North Dakota
state charges resulting from R.M.'s forensic interview.
Arresting officers seized a silver LG cell phone in a
camouflage case with tan rubber parts from Daigle's
person. Sheriff Hook received the LG cell phone on December
3, 2015 and applied for a warrant to search it. In support,
he submitted a sworn written affidavit, in which he provided
a less detailed recitation of the information presented in
his sworn telephonic affidavit in support of the first search
warrant. Specifically, the written affidavit noted
Celetra's report to Sheriff Hook; R.M.'s forensic
interview; R.M.'s explanations of how, where, and how
often the sexual abuse took place; and Sheriff Hook's
observation that R.M. "is a reliable source and says
that there is video of her on the LG phone that was in
possession of the Defendant at the time of arrest."
Sheriff Hook also provided oral testimony in support of the
second warrant application at a probable cause hearing held
by Judge Hovey, in which Sheriff Hooks testified that the
cell phone found on Daigle's person at the time of arrest
matched "to a tee" R.M.'s description of the
cell phone used by Daigle to record the sexual abuse. Finding
probable cause, Judge Hovey issued the warrant to search the
LG cell phone.
time of the December probable cause hearing, law enforcement
had not yet found evidence of sexual abuse on the devices
seized from the family residence. However, the forensic
examination of the LG cell phone uncovered deleted videos of
Daigle sexually abusing R.M.
was charged with three counts of sexual exploitation of
minors in violation of 18 U.S.C. §§ 2251(a) and
(e), and one count of possession of materials involving
sexual exploitation of minors in violation of 18 U.S.C.
§§ 2252(a)(4)(B) and (b)(2). He moved to suppress
the videos found on the LG cell phone, arguing that Sheriff
Hook's written affidavit failed to establish probable
cause, that the "good faith" exception under
United States v. Leon, 468 U.S. 897 (1984), did not
apply, and that a Franks hearing was warranted
because the affidavit contained an intentional misstatement
and omission. Following a hearing, the district court denied
Daigle's motion to suppress, finding that the search
warrant was supported by probable cause. Further, the
district court dismissed as moot Daigle's request for a
Franks hearing, finding that his Franks
issues had been addressed at the suppression hearing and, in
any case, he had failed to establish a Franks
defense counsel learned about a 2013 investigation into
Daigle's alleged sexual abuse of his two oldest
biological daughters. Daigle filed a motion to reconsider,
arguing that a Franks hearing was warranted because
Sheriff Hook had intentionally or recklessly omitted from his
written affidavit information regarding the 2013
investigation-specifically, that no charges had resulted from
that investigation, and that R.M. had denied being sexually
abused by Daigle during a forensic interview in connection
with that investigation. The district court denied the motion
to reconsider, finding that Daigle should have been aware of
the 2013 investigation at the time he filed his motion to
suppress, and that, even if the argument had been timely
raised, the inclusion of the omitted information in the
written affidavit would not have eliminated the existence of
probable cause to search the LG cell phone.
filed pro se a second motion to reconsider and a motion for a
Franks hearing. The district court denied both
motions. Daigle pled guilty to all counts pursuant to a plea
agreement, but reserved the right to appeal the denial of his
motion to suppress. The ...