United States District Court, W.D. Tennessee, Western Division
ORDER ADOPTING REPORT AND RECOMMENDATION AND DENYING MOTION TO SUPPRESS
SHERYL H. LIPMAN, District Judge.
Before the Court is the Report and Recommendation of Magistrate Judge Diane K. Vescovo, filed May 5, 2015 (ECF No. 39), recommending that the Court deny Defendant Darrell Randolph's Motion to Suppress Evidence, filed January 30, 2015 (ECF No. 19). Randolph filed no objections to the Report and Recommendation. If a party fails to file objections within 14 days of the issuance of the Report and Recommendation, he has waived his right to review. Fed. R. Crim. P. 59(b)(2). Nevertheless, the District Court retains the authority to review a Report and Recommendation at its discretion. See Thomas v. Arn, 474 U.S. 140, 154 (1985). After reviewing the record in this case, the Court hereby ADOPTS the Magistrate Judge's Report and Recommendation and DENIES Defendant's Motion to Suppress.
The following recitation of facts is based on testimony given at an evidentiary hearing held on March 16 and April 3, 2015, before Magistrate Judge Diane Vescovo. (See Nos. 34, 37.)
The events giving rise to this case began on February 12, 2014, when Tyaira Onry, Randolph's 15 year old step-daughter, ran away from home. On February 17, a friend of Tyaira's contacted Tyaira's mother, Monique Polk, and informed her that Tyaira asked him to pick her up or bring her something to eat. At Polk's request, the friend arranged to have Tyaira meet him at a nearby Walmart. Randolph waited at the Walmart for Tyaira, and when she showed up for the meeting, Randolph confronted her and forced her to come home to their house on Coral Creek Lane (the "Coral Creek Residence"). While they were driving home, Randolph instructed Polk to call the police, which she did. Monique Polk testified that she spoke to Tyaira for fifteen to twenty minutes after they arrived back home while Randolph talked to the police in another room. At first, Tyaira was nonresponsive, but when Polk told Tyaira she would be sent to juvenile court, Tyaira told Polk that Randolph had been touching her inappropriately.
At the hearing on this motion, Polk testified that she never believed Tyaira's allegations, but that she conveyed them to the police who were talking with Randolph. After Polk told the police about Tyaira's allegations, she asked Tyaira whether Randolph was circumcised. When Tyaira allegedly said that he was, Polk immediately told the officers on the scene that Tyaira was lying. One of the officers on the scene, Officer Blake, told a different version of these events. According to Blake, Polk was shocked when she informed him of Tyaira's allegations and appeared to believe her daughter at first. Blake also testified that Tyaira was crying, visibly upset, and did not appear to be lying.
After Officer Blake learned of Tyaira's allegations, he reported the incident to the Department of Children's Services ("DCS") because Tyaira was a minor. DCS sent investigator Sabrina Wallace to the scene. Wallace interviewed Polk and Tyaira separately. Polk told Wallace that Tyaira had prior discipline issues, a propensity for lying and had previously made similar allegations about an uncle that she later recanted. Wallace testified at the hearing that she interviewed Tyaira for an extended period of time and that Tyaira was emotional and reluctant to make eye contact during the interview. Tyaira told Wallace that Randolph last molested her in December 2013. When Wallace told Tyaira what Polk had said about her past, Tyaira began crying and did not respond. Tyaira told Wallace that her sister Morgan could corroborate her allegations, but Morgan did not do so. Wallace testified that Tyaira was consistent with her story, very emotional and that she had no reason to doubt her story. The Magistrate Judge found Wallace to be a very reliable witness.
Polk and Randolph both testified about Tyaira's propensity for lying and inappropriate sexual behavior. According to Polk, when Tyaira was in eighth grade, she posted on Facebook that she was pregnant and exchanged naked pictures with boys. When Polk confronted Tyaira and asked why sex was on her mind, Tyaira told her, while crying, that she was raped when she was at her grandmother's house. According to Polk, these allegations could not be corroborated. Polk also testified that Tyaira stole a cellphone from a classmate when she was thirteen and that Tyaira only admitted to the theft when she was caught by the police. According to Polk, Tyaira frequently disobeyed her by bringing boys to the house, and Polk had caught Tyaira lying to her friends that her mother and grandmother had died. Polk testified that she believes Tyaira is lying in this case to avoid punishment for running away. Randolph generally repeated Polk's claims about Tyaira's alleged unreliability during his testimony.
The Department of Children's Services conducted a forensic interview of Tyaira on February 27, 2014. Sergeant Hillman of the Memphis Police Department was present and observed the interview via a video feed. During the forensic interview, Tyaira alleged that Randolph had been molesting her since she was eleven years old, identified distinctive marks in Randolph's genital area, and stated that Randolph was uncircumcised. Sergeant Hillman testified that Tyaira had an honest demeanor during the interview.
On March 4, 2014, Sergeant Hillman interviewed Randolph. Randolph told Hillman that Tyaira was troubled and had made similar false accusations before but later recanted. Randolph also claimed to have an iPad with evidence that would prove Tyaira was lying, but he refused to turn it over until he talked to his lawyer. Randolph also refused to consent to a photograph of the distinctive mark in his genital area. Randolph claims that Hillman's first question during the interview was whether Randolph was a drug dealer. Hillman testified that she did not recall asking this but it could have happened because Tyaira may have mentioned in the forensic interview that Randolph sold drugs. Randolph believes that this alleged initial question is evidence that the investigation into Tyaira's allegations was merely a "front" for investigating his alleged activities as a drug dealer.
Hillman met with a special victims prosecutor to discuss the potential charges against Randolph. Based on the forensic interview, Hillman's interview with Randolph, and Randolph's refusal to consent to being photographed, the prosecutor decided to charge Randolph with the rape of a child. On March 5, Hillman signed an affidavit for Randolph's arrest warrant for the molestation charges. Later that day, Hillman also sought a search warrant to photograph Randolph's genital area. Hillman testified that she did not contact Polk or Tyaira's school to ascertain Tyaira's reliability prior to signing the affidavit, because, based on her experience, she believed Tyaira was being truthful and that Randolph was lying. Hillman was aware that Tyaira was a runaway but did not view this as impacting her credibility because it is common for assault victims to act out and run away.
On March 6, the Fugitive Apprehension Team went to the Coral Creek residence to arrest Randolph. While there, the police discovered marijuana belonging to Polk. When Randolph arrived at the Coral Creek Residence, he was arrested for the molestation of Tyaira. The police later obtained a search warrant for the Coral Creek Residence to search for other drugs, but the record is unclear if any were found.
Later that day, Tyaira and her grandmother (whom she began living with after she made the allegations against Randolph) came to Sergeant Hillman's office to seek help retrieving clothing from Tyaira's house. At that meeting, Tyaira told Hillman that she had kept notes about Randolph's assaults in composition notebooks and that these notebooks, along with a note addressed to Tyaira's sister that allegedly corroborated the assaults, were located at the family's other residence where the abuse allegedly began (the "Market Square Residence"). Based on this information, Sergeant Hillman and Detective Hawkins jointly prepared an affidavit requesting a document search warrant for the Market Square Residence. Based on this affidavit, Shelby County Criminal Court Judge Coffey issued a search warrant for the Market Square Residence for written documents, including diaries, composition books, letters, and photographs of the interior of the home.
The search of the Market Square Residence was conducted jointly by the General Investigation Bureau and the Narcotics Department. The police did not find the notebooks Tyaira described. The police did, however, discover a brown substance that was later identified through forensic tests as heroin. Based on the discovery of heroin, Detectives Vance and Jones applied for, and were granted, a second search warrant of the Market Square Residence to look for more drugs. During the second search, the police discovered cocaine, heroin, marijuana, and a ...