USA v. Addison et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CRIMINAL DOCKET NO. 3:17-CR-134-2-FDW-DSC
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.
UNITED STATES OF AMERICA, )
)
)
)
v. )
)
MEMORANDUM AND
RECOMMENDATION
)
AARON ALEXANDER, )
)
Defendant. )
Case 3:17-cr-00134-FDW-MTO Document 1705 Filed 06/21/18 Page 1 of 6

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
Case 3:17-cr-00134-FDW-MTO Document 1705 Filed 06/21/18 Page 2 of 6

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
1 CMPD supervisors have limited authority to delete recordings when a body camera is turned on inadvertently by
the officer and records a visit to the bathroom or a change of clothes.
Case 3:17-cr-00134-FDW-MTO Document 1705 Filed 06/21/18 Page 3 of 6

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
F. App’x 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 Motion to Suppress with regard to
the videotaped interview be denied.
B. Dash Camera Recording
Officer Decker testified that he activated the dash camera when the traffic stop
commenced. However, there is no corresponding Audit Trail documenting a recording from that
incident. It is uncontroverted that there was a malfunction of the dash camera and no recording
was made. Defendant asks the Court to assume bad faith based upon the malfunction of the dash
camera. The Court declines to do so and respectfully recommends that the Motion to Suppress
with regard to the non-existent dash camera recording be denied.
C. Body Camera Recording
The Government has produced the body camera recording and corresponding Audit Trial
to defense counsel. Officer Decker stopped his body camera from recording when the incident
Case 3:17-cr-00134-FDW-MTO Document 1705 Filed 06/21/18 Page 4 of 6

evolved from a traffic stop into a criminal investigation per the CMPD Interactive Directives Guide
for Body Worn Camera. Government Exhibit 1. Once again, Defendant asks the Court to assume
bad faith. Officer Decker acted pursuant to the Directives in place at the time of the incident. The
Court does not find any bad faith on the part of Officer Decker and respectfully recommends that
the Motion to Suppress with regard to the body camera recording be denied.
D. Liability of Law Enforcement Officers
In the prayer for relief, Defendant “requests that the court finds law enforcement destroyed
discovery related to the present case in violation of retention statutes and should be held criminally
liable.” There is no evidence that law enforcement destroyed any evidence here. The dash camera
recording does not exist because of a malfunction. The Luna videotape and the body camera
recording have been provided to defense counsel. The Court finds Defendant’s request to hold
law enforcement officers “criminally liable” frivolous and respectfully recommends that the
Motion to Suppress requesting law enforcement officers “be held criminally liable” be denied.
III. RECOMMENDATION
FOR THE FOREGOING REASONS, the undersigned respectfully recommends that
Defendant’s “Motion to Suppress Evidence Related to Aaron Alexander for Violation of His Due
Process Rights,” Doc. 1562, be DENIED.
IV. NOTICE OF APPEAL RIGHTS
The parties are hereby advised that, pursuant to 28 U.S.C. §636(b)(1)(c), written objections
to the proposed findings of fact and conclusions of law and the recommendation contained in this
Memorandum must be filed within fourteen days after service of same. Failure to file objections
to this Memorandum with the District Court constitutes a waiver of the right to de novo review by
the District Judge. Diamond v. Colonial Life, 416 F.3d 310, 315-16 (4th Cir. 2005); Wells v.
Case 3:17-cr-00134-FDW-MTO Document 1705 Filed 06/21/18 Page 5 of 6

Shriners Hosp., 109 F.3d 198, 201 (4th Cir. 1997); Snyder v. Ridenour, 889 F.2d 1363, 1365 (4th
Cir. 1989). Moreover, failure to file timely objections will also preclude the parties from raising
such objections on appeal. Thomas v. Arn, 474 U.S. 140, 147 (1985); Diamond, 416 F.3d at 316;
Page v. Lee, 337 F.3d 411, 416 n.3 (4th Cir. 2003); Wells, 109 F.3d at 201; Wright v. Collins, 766
F.2d 841, 845-46 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
The Clerk is directed to send copies of this Memorandum and Recommendation to counsel
for the parties and to the Honorable Frank D. Whitney.
SO RECOMMENDED.
Signed: June 21, 2018
Case 3:17-cr-00134-FDW-MTO Document 1705 Filed 06/21/18 Page 6 of 6