United States District Court, W.D. North Carolina, Charlotte Division
MEMORANDUM AND RECOMMENDATION
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.
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.
fully considered the record and following the hearing, the
undersigned respectfully recommends that Defendant's
Motion to Suppress be denied, as discussed below.
FACTUAL BACKGROUND AND FINDINGS
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.
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.
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.
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
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. The recordings are automatically deleted
by the system upon expiration of the retention period
mandated by the Directives.
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
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.”).
Videotaped interview of Eric Luna
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