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United States v. Alexander

United States District Court, W.D. North Carolina, Charlotte Division

June 21, 2018

UNITED STATES OF AMERICA,
v.
AARON ALEXANDER, Defendant.

          MEMORANDUM AND RECOMMENDATION

         THIS MATTER is before the Court on Defendant's “Motion to Suppress Evidence Related to Aaron Alexander for Violation of His Due Process Rights, ” Doc. 1562, filed on May 21, 2018. The “Government's Opposition to Defendant (2) Alexander's Motion to Suppress Evidence and to Dismiss Indictment for Due Process Violation, ” Doc. 1593, was filed on May 29, 2018. Defendant filed a Reply brief, Doc. 1605, on June 1, 2018. The Court conducted an evidentiary hearing on June 19, 2018 and heard testimony from Charlotte Mecklenburg Police Department (“CMPD”) Captain Michael Harris and Officer Jared Decker.

         This matter has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and the Motion is now ripe for consideration.

         Having fully considered the record and following the hearing, the undersigned respectfully recommends that Defendant's Motion to Suppress be denied, as discussed below.

         I. FACTUAL BACKGROUND AND FINDINGS

         As best the Court can discern, Defendant seeks to suppress any evidence arising from incidents occurring on July 9, 2015 and August 26, 2015. Defendant contends that he has been denied access to videotaped evidence from these incidents.

         On the July date, Defendant was present in a residence when an arrest warrant was served on an individual identified as Eric Luna. Defendant was found in possession of controlled substances and also arrested. Charlotte-Mecklenburg Police conducted a videotaped interview of Luna following his arrest. On the August date, Defendant was a passenger during a traffic stop conducted by Officer Decker. He was cited for possession of marijuana. Officer Decker activated both his dash camera and body camera during the course of the stop.

         Defendant requested a copy of the videotaped interview with Luna. Initially the Government had some difficulty in locating the videotape. The videotape was ultimately located and defense counsel was advised last month that a copy was available for him to pick up. As of this hearing, counsel has not picked up his copy of the videotape.

         Defendant also requested copies of Officer Decker's dash camera and body camera videos. The dash cameras in CMPD vehicles begin recording upon activation of blue lights or manual activation by the officer. A body camera is manually activated by the officer. An “Evidence Audit Trail” maintained by CMPD documents any dash camera or body camera recordings. While Officer Decker activated his dash camera, there is no corresponding Audit Trail documenting a recording from that incident. This indicates that the system malfunctioned and no recording was made. The Government has produced the body camera recording and corresponding Audit Trial to defense counsel.

         Defendant argues that there is missing footage from the body camera video. Per CMPD Directives in place in 2015, if a traffic stop evolved into a criminal investigation, the officer was to stop the body camera from recording any further. Officer Decker ultimately stopped recording from the body camera during this incident and designated the video as “criminal investigation-misdemeanor.” He later changed the designation to “criminal investigation-felony.” The dash camera and body camera technology does not allow CMPD officers to delete any recordings.[1] The recordings are automatically deleted by the system upon expiration of the retention period mandated by the Directives.

         II. ANALYSIS

         Defendant alleges that (1) the videotaped interview of Eric Luna was destroyed; (2) the dash camera and body camera recordings from the August 2015 traffic stop were partially or completely destroyed; and (3) this alleged destruction of evidence was done in bad faith and in violation of his due process rights.

         In Arizona v. Youngblood, 488 U.S. 51, 58 (1988), the Supreme Court held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id. at 58; see Illinois v. Fisher, 540 U.S. 544, 547-48 (2004) (“[F]ailure to preserve [] potentially useful evidence does not violate due process unless a criminal defendant can show bad faith on the part of the police.”) (internal quotation marks omitted). A showing of bad faith requires evidence that the police acted intentionally to gain a tactical advantage or to harass a defendant. Youngblood, 488 U.S. at 57. Mere negligence does not amount to bad faith. Id. at 58; see also United States v. Thompson, 584 Fed.Appx. 101, 103-04 (4th Cir. 2014) (officer's failure to re-label footage when charge was upgraded to felony so that it would be preserved longer was negligent at best and did not violate due process). A finding of bad faith cannot be inferred, even when a discovery motion is pending at the time of destruction. See Fisher, 540 U.S. at 548 (“We have never held or suggested that the existence of a pending discovery request eliminates the necessity of showing bad faith on the part of police.”).

         A. Videotaped interview of Eric Luna

         This videotape has been made available to defense counsel. Defendant asks the Court to assume bad faith on the part of the Government before the videotape was made available. The Court declines to do so and respectfully recommends that the ...


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