Opinion
Crim. No. 07-360.
February 11, 2009
ORDER
This matter having come before the Court upon Defendant's motion (Doc. No. 24) to dismiss the Indictment; and the Court having conducted an evidentiary hearing on October 19 and November 13, 2009; and the Court having reviewed the parties' submissions; and for the reasons set forth in the accompanying Memorandum Opinion;
IT IS THIS 11th day of February, 2010,
ORDERED that Defendant's motion (Doc. No. 24) to dismiss the Indictment is DENIED.
MEMORANDUM OPINION
This matter comes before the Court on Defendant's motion (Doc. No. 24) to dismiss the Indictment. The Court held a two-day evidentiary hearing on this motion on October 19 and November 13, 2009. For the following reasons, the Court will deny Defendant's motion.Background
Defendant Cory Munford was stopped by East Orange police officers on November 24, 2006. According to the Police Report, Officers Brown and Davis observed Defendant's vehicle fail to come to a complete stop at the stop sign marking the intersection of Chestnut Street and South Arlington Avenue. (Def.'s Br., Attachment ("Police Report") at 1.) Defendant's vehicle stopped in front of 70 South Arlington Avenue, where the officers ultimately conducted a motor vehicle stop. ( Id.) When asked for identification and registration, Defendant notified the officers that he was an unlicensed driver and that he had a box of bullets in his pocket, at which point Officers Brown and Davis removed Defendant from the vehicle to perform a pat-down search for weapons. ( Id.) The officers discovered hollow-point bullets in Defendant's pocket and placed him under arrest. ( Id. at 1-2.) During the subsequent search of Defendant's vehicle, police discovered 11 bags of cocaine, a loaded .22 caliber handgun, and approximately $30,000. ( Id. at 2.) On April 27, 2007, a federal grand jury returned a two-count Indictment charging Defendant with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and one count of knowing possession with the intent to distribute 500 or more grams of cocaine in violation of 21 U.S.C. § 841(a) and (b)(1)(B)(ii), and 18 U.S.C. § 2.
Defendant contends that exculpatory evidence, in the form of video recordings captured by an elevated traffic camera, was either destroyed and/or preserved in bad faith. Specifically, Defendant suggests that this footage would show that he did not run the stop sign at Chestnut and South Arlington, thereby eliminating the officers' justification for the traffic stop. Defense counsel initially requested all video transmissions related to Defendant's arrest from the East Orange police and City Corporation Counsel in a pair of letters dated December 4 and 7, 2006, but Defendant received no response. Although an internal investigation led Assistant U.S. Attorney David Malagold to report in August 2007 that no video images of the arrest were recorded (Ashley Aff., Malagold Letter of Aug. 9, 2007), the East Orange police eventually located a video file containing images of Defendant's arrest and provided it to Defendant in October 2007 ("October 2007 file"). A September 28, 2008 subpoena requesting additional video images of the arrest revealed that the East Orange police no longer had video images of the arrest, because it was their policy to keep such records for no more than one month. (Ashley Aff., Harris Letter of Oct. 1, 2008.)
The video contained on the October 2007 file begins after the purported traffic violation with a depiction of Defendant's stopped car on South Arlington Avenue. (Hr'g Ex. D5.) Defendant argues that the portion of video immediately preceding the start of the October 2007 file would have shown that the officers' justification (traffic violation) for the initial traffic stop was pretextual, and that the East Orange police's failure to preserve that evidence violated his due process rights.
Discussion
The U.S. Constitution's guarantee of due process requires the prosecution to disclose exculpatory evidence to a criminal defendant. See, e.g., Brady v. Maryland, 373 U.S. 83, 87 (1963); United States v. Risha, 445 F.3d 298, 303 (3d Cir. 2006). "To establish a Brady violation, it must be shown that (1) evidence was suppressed; (2) the evidence was favorable to the defense; and (3) the evidence was material to guilt or punishment." Risha, 445 F.3d at 303 (citing United States v. Pelullo, 399 F.3d 197, 209 (3d Cir. 2005)). The Brady inquiry is an objective test in that it does not require a showing of bad faith. E.g., Risha, 445 F.3d at 303.
The Supreme Court has recognized, however, that due process imposes a more limited duty to preserve evidence. The Government's obligation to preserve evidence is limited to evidence "possess[ing] an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." California v. Trombetta, 467 U.S. 479, 489 (1984). Furthermore, when the exculpatory value of the evidence is unknown, bad faith is required to establish a due process violation. Arizona v. Youngblood, 488 U.S. 51, 58 (1988) ("[U]nless 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."); see also Trombetta, 467 U.S. at 488 (finding no due process violation from officers' failure to preserve defendants' breath samples, where the officers were acting in good faith with standard department policy). Thus, in order to establish a due process violation based on the Government's failure to preserve evidence after Youngblood and Trombetta, Defendant must show (1) that the Government acted in bad faith when it destroyed the evidence, (2) that the evidence possessed an apparent exculpatory value when it was destroyed, and (3) that the evidence was to some degree irreplaceable, in that Defendant could not have obtained comparable evidence by reasonable means. See, e.g., United States v. Jackman, 72 F. App'x 862, 866 (3d Cir. 2003) (citing United States v. Femia, 9 F.3d 990, 993-94 (1st Cir. 1993)).
Defendant's argument in this case suffers from the fact that there is no evidence in the record that additional video footage of the purported traffic violation and arrest was recorded and subsequently destroyed. Defendant relies on the hearing testimony of Tamer Zakhary, the CEO of the company that supplied the East Orange traffic cameras, who claimed that the camera that recorded Defendant's arrest would have recorded some images immediately prior to the video segment contained on the October 2007 file. ( See Hr'g Tr. I at 117-18.) Defendant also notes that his counsel twice requested the video records mere days after the arrest during the first week of December 2006, arguing that these requests triggered a duty on the East Orange police to maintain these records. Yet it is uncertain what those images would be, because a police "virtual patrol officer," reviewing several camera feeds simultaneously, has the ability to manually adjust the vantage point of specific traffic cameras as circumstances warrant. ( See id. at 116-17.)
Detective Andrew DiElmo testified that the default positioning of the camera that filmed Defendant's arrest focused on the intersection of Lenox Street and South Arlington Avenue. ( See id. at 165-68.) The "virtual patrol" officer on the night of Defendant's arrest provided seemingly contradictory testimony regarding the positioning of the subject traffic camera that did not definitively answer whether it recorded earlier images of the events precipitating Defendant's arrest. ( Compare Hr'g Tr. II at 9:5-10:12 (indicating that the camera faced the Chestnut and Arlington intersection prior to the arrest) with 10:18-12:5 (indicating that the camera faced the intersection of Lenox and Arlington, and that he manually adjusted the camera towards Chestnut and Arlington when officers alerted him to the arrest).)
Assuming arguendo that the camera was focused on the intersection of Chestnut and Arlington prior to the arrest and that it did record the circumstances of Defendant's purported traffic violation, Defendant has presented no evidence that the East Orange police destroyed such evidence in bad faith. The basis for Defendant's bad faith argument appears to be the non-responsiveness of East Orange police to Defendant's initial requests for the traffic camera's recordings, the incorrect information provided to the U.S. Attorney's Office during its 2007 investigation of the matter, and the subsequent discovery of the October 2007 file. Yet, it appears that the only remaining video from that camera — the October 2007 file — was provided to Defendant, and it is unclear whether defense counsel's initial request for the traffic camera's recordings predated their destruction. Although the October 1, 2008 Letter of Assistant Corporation Counsel Kevin Harris suggested that the East Orange Police Department kept video files for a period of one month (Ashley Aff., Harris Letter of Oct. 1, 2008), Mr. Zakhary, who participated in the installation of the traffic cameras, testified that the hard drive for the police video recording system only preserved video images for a period of seven days, unless an officer affirmatively saved one of the files in a separate file for long-term storage. ( See Hr'g Tr. I at 117-22.) Under these circumstances, all video recordings from the traffic camera on the date of Defendant's arrest — including the October 2007 file — would have either been automatically deleted by the police video database or preserved by police personnel prior to the first letter of defense counsel, which came ten days after the arrest on December 4, 2006.
Ultimately, the mere fact that the East Orange police preserved video footage of Defendant's arrest and did not preserve other footage that may have contained additional video evidence pertinent to the precipitating traffic stop does not prove that the East Orange police destroyed apparently exculpatory evidence in bad faith. Cf. United States v. Tykarsky, 446 F.3d 458, 478 (3d Cir. 2006) (finding no Brady violation with regard to the Government's failure to provide an Internet sex predator with, inter alia, the web profile of the Government decoy and the chat room conversations he had with the Government decoy, because "there is no proof that they exist, and there is no evidence of any bad faith in failing to preserve them"). Granted, the non-responsiveness of the East Orange police and the absence of clearer video preservation guidelines leave much to be desired, but it does not amount to a violation of Defendant's constitutional rights.
Presuming that the traffic camera did capture video of the events preceding Defendant's traffic stop, the choppy nature of the video — which more closely resembles a rapid succession of still images — leads this Court to doubt that such "video" could definitively disprove the arresting officer's justification for the traffic stop.
The Court notes that defense counsel filed additional arguments (Doc. No. 32) on March 27, 2009, challenging the legality of Defendant's traffic stop and seeking the suppression of all evidence arising therefrom. Although these arguments rely to some degree on the same speculation at issue in this matter — that additional video footage of the arrest and precipitating events existed and was destroyed — these arguments are not properly before the Court, because Defendant has not filed a motion to suppress.