Opinion
Case No. 3:20-cr-00320-JGC
11-12-2020
UNITED STATES of America, Plaintiff, v. Kevin L. ARNOLD, Defendant.
Alissa M. Sterling, Office of the U.S. Attorney, Toledo, OH, Henry F. DeBaggis, II, Office of the U.S. Attorney, Cleveland, OH, for Plaintiff. Claire R. Cahoon, Office of the Federal Public Defender, Toledo, OH, for Defendant.
Alissa M. Sterling, Office of the U.S. Attorney, Toledo, OH, Henry F. DeBaggis, II, Office of the U.S. Attorney, Cleveland, OH, for Plaintiff.
Claire R. Cahoon, Office of the Federal Public Defender, Toledo, OH, for Defendant.
ORDER
James G. Carr, Sr. U.S. District Judge
This is a criminal case in which the government has indicted the defendant on two counts of distribution of cocaine and cocaine base. Part of the evidence against him comes from the execution on March 4, 2020 of a search warrant.
An informant's two controlled buys from the defendant at his residence provided the principal probable cause for the warrant. The informant also provided information about the defendant's ten-year long drug distribution and the possession of drugs and firearms in his residence. According to the affidavit, officers of the Toledo Metro Drug Task Force had conducted both moving and stationary surveillance during those purchases. (Doc. 15-1, pgID 58-62) (search warrant affidavit).
Pending is the defendant's motion to compel the government to produce surveillance photographs, video and audio recordings, and any other evidence obtained during its search-related surveillance. (Doc. 15). The government opposes the motion (Doc. 18), and the defendant has filed a reply (Doc. 20).
Under the applicable Rule of Criminal Procedure, the government must provide the requested materials if "material to preparing the defense" or "the government intends to use the item in its case-in-chief at trial." Fed. R. Crim. P. 16(a)(1)(E)(i), (ii). The second alternative does not apply because the government states it will not use the items at trial. Thus, the dispositive question under Rule 16(a)(1)(E)(i) is whether the defendant has shown that the requested materials are "material to preparing the defense."
In his motion, the defendant asserts that the items are material to preparing his defense because they provide "the only means of effectively evaluating the search warrant and identifying potential grounds to challenge the evidence against him." (Doc. 15, pgID 54).
I disagree. Except where a defendant raises, as the defendant does not here, a challenge under Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), evaluation of the adequacy of a search warrant is "limited to the information presented in the four-corners of the affidavit." United States v. Frazier , 423 F.3d 526, 531 (6th Cir. 2005) (citations omitted). Looking there, I find adequate probable cause – which, in any event, the defendant does not challenge.
Perhaps the defendant has in mind making a Franks challenge if what he seeks gives him grounds to do so. If the items somehow undercut the probable cause statements in the affidavit, the government would have an obligation so to alert the defendant to that situation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). That it has not done so indicates persuasively that there is nothing favorable to the defendant in the looked-for materials.
The sum and substance of the defendant's claim that the demanded items are material to his preparing a defense is:
Here, the evidence the government would introduce at trial stems from the search of Mr. Arnold's home, and that search only occurred because of alleged controlled buys with a CI. The controlled buys, although not charged, are central to the case because they directly implicate the probable cause that supported the search warrant. This evidence could reasonably be provided in a redacted form such that the identity of the CIs would be protected – as redacted footage from controlled buys has been provided to defense counsel in other cases. Therefore, the evidence is discoverable, and its production should be compelled.
(Doc. 15, pgId 54).
Defendant's contention has two parts: 1) the controlled buys justified the warrant which generated the trial evidence against the defendant; and 2) the government could provide the desired items in redacted form, thereby preserving the informant's privilege of Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).
Neither of these assertions establishes the requisite materiality to the preparation of a defense.
The first - that the controlled buys provided probable cause for the warrant - is a commonplace attribute of many drug-search warrants. Taken a short step further, the logic of defendant's rationale would, without regard for Rule 16 ’s constricted scope, obligate the government, except for clear Roviaro material, to disclose everything that led to the decision to obtain a search warrant.
The defendant cites one case, United States v. Lykins , 428 F. App'x 621, 624 (6th Cir. 2011) (citing United States v. Stevens , 985 F.2d 1175, 1180 (2d Cir. 1993) ), in support of his "Open Sesame" approach. To determine materiality to preparing a defense, the court looked to "the logical relationship between the information withheld and the issues in the case , as well as the importance of the information in light of the evidence as a whole." (Emphasis supplied).
Here no connection, much less a logical one, exists between the issues in the case and the statements in the warrant affidavit. That there were two controlled buys (plus some background information about what both informants otherwise knew about the defendant’ activities) has nothing to do with the charge-related issues. Among others, the issue at trial will be whether the evidence the search warrant produced contributes to establishing beyond a reasonable doubt the elements of the crimes the indictment alleges. What the executing officers later found, not what the surveilling officers earlier saw, will be what matters at trial. Likewise, the evidence the search uncovered, not what might have been seen beforehand, is what matters with regard to preparing the defense to those charges and that evidence. Conclusion
Because I have found that defendant's motion fails to satisfy Rule 16(a)(1)(E)(i), (ii), it is not necessary to address the Rosario informant's privilege.
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In light of the foregoing, it is hereby
ORDERED THAT defendant's motion to compel (Doc. 15) be, and the same hereby is, denied.
So ordered.