United States of America v. Brent Daigle Child Sexual Predator

St. Louis, MO - Criminal defense lawyer represented defendant with three counts of sexual exploitation of minors and one count of possession of materials nvolving sexual exploitation of minors charges.

On 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.

During 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.

1The Honorable Ralph R. Erickson, then United States District Judge for the

District of North Dakota, now United States Circuit Judge for the Court of Appeals

for the Eighth Circuit; and the Honorable Daniel L. Hovland, United States District

Judge for the District of North Dakota.

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That 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 DistrictJudge 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 devicesseized fromthe

family residence.2

Later 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 partsfrom 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 saysthat there is video of her on the LG phone that

wasin 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

2Daigle has not challenged the validity of the November 13, 2015 search

warrant.

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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.

At the 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.

Daigle 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 wassupported 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 violation.

Thereafter, 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

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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.

Daigle 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 district court sentenced Daigle to 840 months imprisonment. This

appeal follows.

II.

Daigle first argues that the district court erred in denying his motion to

suppress because Sheriff Hook's written affidavit was insufficient to establish

probable cause and the Leon "good faith” exception to the exclusionary rule did not

apply. He then argues that, even if the affidavit was sufficient, he was entitled to a

Franks hearing because Sheriff Hook intentionally or recklessly omitted from his

affidavit material information that, if included, would have negated a finding of

probable cause. We address each issue in turn.

A.

"In reviewing the district court's denial of a motion to suppress, we review the

district court's factual findings for clear error and its legal conclusions de novo.”

United States v. Faulkner, 826 F.3d 1139, 1144 (8th Cir. 2016). "Issuance of a search

warrant must be supported by probable cause, which depends on whether, under the

totality of the circumstances, there is a fair probability evidence of a crime will be

found in a particular place.” Id. Judges "may draw reasonable inferences from the

totality of the circumstances in determining whether probable cause exists to issue a

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warrant.” United States v. Thompson, 210 F.3d 855, 860 (8th Cir. 2000). "As a

reviewing court, we pay 'great deference' to the probable cause determinations of the

issuing judge or magistrate, and our inquiry is limited to discerning whether the

issuing judge had a substantial basis for concluding that probable cause existed.”

United States v. Lucca, 377 F.3d 927, 933 (8th Cir. 2004) (quoting Illinois v. Gates,

462 U.S. 213, 236 (1983)).

Daigle contends that Sheriff Hook's written affidavit was insufficient to

establish probable cause because it failed to set forth: (1) a sufficient basis for

assessing R.M. as reliable; (2) Sheriff Hook's qualifications and training in child

sexual abuse investigations and assessment of witness reliability; (3) the forensic

interviewer's identity and qualifications; (4) the source of the information presented

in paragraphs 8, 9, and 10 of the affidavit, which set forth details of Daigle's sexual

abuse of R.M.; and (5) the factual basis for R.M.'s knowledge that there was video

of her on Daigle's phone at the time of arrest.

3

As an initial matter, "probable cause is determined based on the information

before the issuing judicial officer.” United States v. Smith, 581 F.3d 692, 694 (8th

Cir. 2009) (internal quotation marks omitted). Here, because the information before

Judge Hovey included both Sheriff Hook's written affidavit and his oral testimony

from the probable cause hearing, we consider both in determining whether probable

cause supported the issuance of the search warrant. Further, Daigle focusessolely on

3Daigle also argues that the affidavit failed to include the circumstances and

motivessurrounding Celetra'sreport to Sheriff Hook—specifically, that Celetra was

in the midst of leaving Daigle because he had physically harmed her and had cheated

on her. He raises this argument as a basis for establishing both the insufficiency of

the affidavit and his Franks claim. However, his briefs contain arguments that are

relevant only to a Franks claim, i.e., that the inclusion of this information in the

affidavit would have negated probable cause; he does not explain how the affidavit

was insufficient to establish probable cause absent this information. Thus, we

address this argument only in the context of Daigle's Franks claim.

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what the affidavit lacked. However, "[t]he affidavit is judged on the adequacy of

what it does contain, not on what it lacks, or on what a critic might say should have

been added.” United States v. Allen, 211 F.3d 970, 975 (6th Cir. 2000). In any case,

for the reasons discussed below, we agree with the district court that the alleged

insufficiencies were either non-existent or harmless because the issuing judge

nonetheless had a substantial basis for finding probable cause.

First, we reject Daigle's argument that Sheriff Hook failed to set forth a

sufficient basis for assessing R.M. as reliable. This Court has explicitly held that,

when information is provided by a victim-eyewitness to a crime, the affidavit in

support of the search warrant application need not attest to the credibility of that

informant or the reliability of the information he or she provided. United States v.

Rajewich, 470 F.2d 666, 668 (8th Cir. 1972). As we explained in United States v.

Sellaro, "the statement of an eyewitness[or victim]to a crime suppliesits own indicia

of reliability as a statement of facts rather than conclusions which must be tested to

determine their factual basis.” 514 F.2d 114, 124 (8th Cir. 1973); see United States

v. Wallace, 550 F.3d 729, 734 (8th Cir. 2008) (per curiam) ("[L]aw enforcement

officers are entitled to rely on information supplied by the victim of a crime, absent

some indication the information is not reasonably trustworthy or reliable.”). Sheriff

Hook's affidavit and testimony make clear that R.M. was a victim-eyewitness to

Daigle's crimes. This is sufficient to establish R.M.'s reliability.

4

4Although Daigle argues that Sheriff Hook's affidavit omitted information

indicating that R.M. was not reliable, that argument is not relevant for the purpose of

determining whether the issuing judge had a substantial basis for finding probable

cause. See Allen, 211 F.3d at 975. Rather, that argument is relevant only in the

context of the Franks claim. In any case, this Court has noted that, even where the

victim makes untrue statements, such statements do not necessarily detract from the

victim's credibility regarding the crime at issue. Wallace, 550 F.3d at 734.

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Second, we reject Daigle's argument that Sheriff Hook'sfailure to set forth his

law enforcement training and qualifications in child sexual abuse investigations and

assessment of witness reliability rendered his affidavit insufficient. "[A]n officer's

testimony about his experience, although relevant . . . , is not a necessary element of

a probable cause determination[.]” United States v. Brown, 374 F.3d 1326, 1328

(D.C. Cir. 2004); see United States v. Garay, 938 F.3d 1108, 1113 (9th Cir. 2019)

("We have long held that affiants seeking a warrant may state conclusions based on

training and experience without having to detail that experience.”). While Sheriff

Hook opinesin the affidavit that R.M. "is a reliable source,” for the reasons discussed

above, the affidavit sufficiently establishes R.M.'s reliability even absent that

statement. Thus, the fact that the affidavit does not set forth Sheriff Hook's training

and qualifications does not detract from a finding of probable cause.

Third, as to Daigle's claim the affidavit lacked the forensic interviewer's

identity and qualifications, the affidavit does not include any statements or opinions

of the forensic interviewer. All of the information contained in the affidavit was

based on R.M.'s statements during the forensic interview and Sheriff Hook's

observations of those statements. Thus, the forensic interviewer's identity and

qualifications were irrelevant to the probable cause determination.

Fourth, paragraphs 8, 9, and 10 of the affidavit identify specific sexual actsthat

Daigle performed on R.M., and state where in the family residence these sexual acts

took place. "[S]o long as the issuing [judge] can fairly infer the source and basis of

the information, the [judge] permissibly may consider such an assertion when

determining whether probable cause exists.” United States v. Thurman, 625 F.3d

1053, 1056 (8th Cir. 2010);see United States v. Summage, 481 F.3d 1075, 1078 (8th

Cir. 2007) (holding that a single statement in the affidavit lent itself to a fair inference

that the victim was also the source of the rest of the information in the affidavit).

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Although paragraphs 8, 9, and 10 do not explicitly identify the source of the

information contained therein, it can be fairly inferred that R.M. wasthe source of all

information regarding the details of Daigle's sexual abuse. Accordingly, the issuing

judge was permitted to rely on the information contained in those paragraphs when

assessing probable cause.

Daigle's final argument, that Sheriff Hook failed to establish the factual basis

for R.M.'s knowledge that there was video of her on Daigle's cell phone, is

unsustainable on the record. At the probable cause hearing, Sheriff Hook testified

that the LG cell phone seized from Daigle at the time of his arrest was an averagesized smartphone in a camouflage protective case with tan rubber bumpers. He

testified that the seized phone matched "to a tee” R.M.'s description of the device

most recently used by Daigle to record the sexual abuse, which had last occurred

about one month prior to the forensic interview. We find that these facts are

sufficient to establish the basis for R.M.'s knowledge that there was video of her on

Daigle's LG cell phone at the time of his arrest.

We hold that the issuing judge had a substantial basis for finding probable

cause.5

The district court did not err in denying Daigle's motion to suppress.

5Daigle also argues that the Leon "good faith” exception to the exclusionary

rule does not apply. The Leon "good faith” exception providesthat "evidence seized

pursuant to a search warrant issued by a magistrate that is later determined to be

invalid, will not be suppressed if the executing officer's reliance upon the warrant

was objectively reasonable.” United States v. Ross, 487 F.3d 1120, 1122 (8th Cir.

2007) (internal quotation marks omitted). Because we find that the search warrant

was valid, we need not address whether the Leon "good faith” exception applies as

to bar suppression. See United States v. Hyten, 5 F.3d 1154, 1156 n.5 (8th Cir. 1993)

(noting that the court need not reach the Leon issue if the warrant is supported by

probable cause).

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B.

Daigle argues that, even if Sheriff Hook's affidavit, supplemented by his

testimony, was sufficient to establish probable cause, the district court abused its

discretion by denying his request for a Franks hearing. This Court reviews for abuse

of discretion the denial of a Franks hearing. United States v. Hollis, 245 F.3d 671,

673 (8th Cir. 2001).

"Under Franks, a criminal defendant may request a hearing to challenge a

search warrant on the ground that the supporting affidavit contains factual

misrepresentations or omissions relevant to the probable cause determination.”

United States v. Arnold, 725 F.3d 896, 898 (8th Cir. 2013) (citing Franks, 438 U.S.

at 155-56). "However, in order to merit a Franks hearing, [a defendant] must show

both (1) that the affiant [] 'knowingly and intentionally' made false statements or

made them in 'reckless disregard for the truth' and (2) if the false information is

excised (or the omitted information is included), the affidavit no longer establishes

probable cause.” Id. (quoting Franks, 438 U.S. at 155-56). "The requirement of a

substantial preliminary showing is not lightly met[.]” Id. (internal quotation marks

omitted).

Daigle maintains that Sheriff Hook intentionally or recklessly omitted the

following material information from his affidavit: (1) that Daigle had passed a

polygraph test in connection with the 2013 investigation into his alleged sexual abuse

of his two oldest daughters, which resulted in no charges; (2) that during the 2013

forensic interview, R.M. denied being sexually abused by Daigle; (3) that, at the time

Sheriff Hook applied for the warrant to search the LG cell phone, no evidence of

sexual abuse had been found pursuant to the warrant to search the devicesseized from

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the family residence; and (4) that Celetra was in the midst of leaving Daigle at the

time she made the initial report to Sheriff Hook.

6

We find that Daigle failed to make the requisite "substantial preliminary

showing” to merit a Franks hearing. Assuming for the purpose of analysis that the

omissions were intentional or in reckless disregard for the truth, Daigle nonetheless

failed to show that the affidavit and testimony, if supplemented by the omitted

information, would not have been sufficient to support a finding of probable cause.

First, the search warrant was not based on any statements by Daigle, and nothing in

the warrant application suggested that Daigle had denied sexually abusing R.M. in

2015 (nor does Daigle argue that any such denials were omitted fromthe application).

Thus, Daigle's credibility was not in play, and the results of the 2013 polygraph test

were not relevant to the probable cause determination. See Tech. Ordinance, Inc. v.

United States, 244 F.3d 641, 649 (8th Cir. 2001) ("A law enforcement official is not

required to include everything he knows about a subject in his affidavit, whether it

is material to a finding of probable cause or not.”).

Second, the failure to discover evidence on the devices seized from the family

residence pursuant to the first search warrant did not make it any less probable that

such evidence would be found on the LG cell phone in Daigle's possession. That is

especially true in light of the fact that R.M. had specifically described the LG cell

phone as the device most recently used to record the sexual abuse.

6Daigle also argues for the first time on appeal that Sheriff Hook's failure to

include his qualifications and experience constituted a Franks violation. Because

Daigle failed to raise this argument below, we do not address it on appeal.

See United States v. Rees, 447 F.3d 1128, 1130 (8th Cir. 2006) ("An argument not

raised below cannot be raised on appeal for the first time unless the obvious result

would be a plain miscarriage of justice.” (internal quotation marks omitted)).

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Third, the circumstances and motives surrounding Celetra's report to Sheriff

Hook had no bearing on the probable cause analysis. An informant's motive for

providing information is not necessarily essential to a probable cause determination,

especially where probable cause would have been found even if the motive were

included. United States v. Taylor, 471 F.3d 832, 840 (7th Cir. 2006). The only

reference to Celetra in the affidavit was that she notified Sheriff Hook of her belief

that Daigle had sexually abused R.M. While this information showed why Sheriff

Hook subsequently arranged for R.M. to be forensically interviewed, it was the

information disclosed by R.M. in her forensic interview that established probable

cause. Thus, the inclusion in the affidavit of the circumstances and motives

surrounding Celetra's report would not have negated probable cause. Cf. United

States v. Macklin, 902 F.2d 1320, 1326 (8th Cir. 1990) (noting that, while the

affidavit included stale information, "this information [wa]s provided as mere

background, and its presence does not taint more recent information in the affidavit”).

Finally, Daigle argues that Sheriff Hook omitted information about R.M.'s

2013 forensic interview that would have shown R.M. was unreliable. Daigle

correctly notesthatR.M.'sreliabilitywas critical to the probable cause determination,

and that certain information in R.M.'s 2013 forensic interview contradicts her 2015

forensic interview. Specifically, in 2013, R.M. denied being sexually abused by

Daigle, but in 2015, she stated that Daigle had been sexually abusing her since May

2011. However, had Sheriff Hook included thisinformation in the affidavit, he could

have also included R.M.'s statements from her 2015 forensic interview that she had

lied about the sexual abuse in 2013 because Daigle had told her that, if she betrayed

him, he would kill her, and because she did not want to be branded as a liar, which

Daigle had called histwo oldest daughters. "'[O]nly if the affidavit assupplemented

by the omittedmaterial could not have supported the existence of probable cause'will

suppression be warranted.” United States v. Jacobs, 986 F.2d 1231, 1235 (8th Cir.

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1993) (alteration and emphasisin original) (quoting United States v. Lueth, 807 F.2d

719, 726 (8th Cir. 1986)). Based on R.M.'s explanations for the inconsistencies, the

inclusion of this information in the affidavit would not have prevented a finding that

R.M. was reliable nor would it have negated a finding of probable cause.

See Wallace, 550 F.3d at 733-74 (finding that the officer's omission fromhis affidavit

of the victim's allegedly untrue statements did not constitute a Franks violation

because the statements did not necessarily detract from the victim's credibility

regarding the crime at issue).

Accordingly, we hold that the district court did not abuse its discretion in

denying Daigle's request for a Franks hearing.

For the foregoing reasons, we affirm.