USA v. Guerue

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
ALUN JAMES GUERUE,
Defendant.
3:21-CR-30096-RAL
OPINION AND ORDER DENYING
MOTION TO STRIKE OFFICER’S
TESTIMONY
Alun James Guerue orally moved to strike the suppression hearing testimony of
Officer Gerald Dillon, relating to Dillon’s observations of S.O.’s furtive movements in a
car, because Dillon and the police department failed to preserve a dash camera recording
of the events prompting Guerue’s vehicle stop and arrest on February 26, 2021.1 Guerue
maintains that the destruction of the recoding, or the failure to preserve it, violated the
Due Process Clause.2 The Court disagrees.
1 Mot Hr’g Tr. 15, 31 (Oct. 3, 2022).
2 Id.
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First off, it is not at all clear whether Dillon ever made a dash camera recording.
He thought the camera was on and recording but he did not know for sure.3 He also did
not know if the camera’s SD card was ever downloaded and, if it was, who did so.4
Without definitive proof that a recording was made but not preserved, Guerue cannot
show 	he 	was 	deprived 	of 	constitutionally 	protected 	access 	to 	evidence 	“whose
exculpatory value is ‘apparent.’”5
But even if a recording did—at one time—exist, that it was not kept, and that the
recording had some apparent exculpatory value, Guerue has still failed to carry his
burden of proving that police acted in bad faith.6 	He did not present evidence that
showed anything more than mere negligence.7 Dillon did not intentionally destroy the
3 Id. at 9-10.
4 Id. at 11-13.
5 Arizona v. Youngblood, 488 U.S. 51, 56 n. * (1988); see also United States v. Seys, 27 F.4th 606,
610-11 (8th Cir. 2022) (missing surveillance video was only potentially useful and
defendant needed to show investigator acted in bad faith to prevail on his due process
claim); United States v. Paris, 954 F.3d 1069, 1074-75 (8th Cir. 2010) (court unpersuaded
that destroyed evidence would have been exculpatory).
6 Youngblood, 488 U.S. at 58; United States v. Webster 625 F.3d 439, 447 (8th Cir. 2020);
compare Illinois v. Fisher, 540 U.S. 544, 548-49 (2004) (per curiam) (applying Youngblood’s
requirement even where discovery request pending because evidence was, at best,
“potentially useful”); with Jimerson v. Payne, 957 F.3d 916, 931 (8th Cir. 2020) (“the
uncontroverted 	evidence 	establishe[d] 	bad 	faith” 	and 	“a 	meritorious 	Youngblood
violation”).
7 Youngblood, 488 U.S. at 58; see also Seys, 27 F.4th at 610-11 (agents’ actions “fell far short”
of 	bad 	faith; 	no 	evidence 	investigator 	“intentionally 	destroyed 	files, 	consciously
suppressed 	exculpatory 	evidence, 	or 	otherwise 	tried 	to 	circumvent 	disclosure
requirements”); United States v. Olivares, 843 F.3d 752, 759 (8th Cir. 2016) (no evidence the
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recording.8 	And the recording may have been lost while transitioning to two new
recording systems or as a result of a malfunction in Dillon’s hard drive.9 Although it may
have been preferable for Dillon or someone else at the police department to store any
recordings made of the February 26 incident in a safe place, Guerue has not demonstrated
that the failure to retain the recording was done in bad faith and infringed on his due
process rights.10
For all these reasons, and based on the record now before the Court, it is
ORDERED that Guerue’s oral motion to strike Dillon’s “furtive movement”
testimony, from the September 8, 2022 evidentiary hearing, is DENIED.
DATED this 24th day of October, 2022.
BY THE COURT:
MARK A. MORENO
UNITED STATES MAGISTRATE JUDGE
government acted in bad faith when it failed to preserve evidence); United States v.
Houston, 548 F.3d 1151, 1155 (8th Cir. 2008) (at best, defendant’s arguments show
negligence on part of officers, and negligence does not amount to bad faith).
8 Mot. Hr’g Tr. 10.
9 Id. at 11, 26.
10 Houston, 548 F.3d at 1155.
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