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United States v. Powell

United States District Court, E.D. Kentucky, Central Division, Lexington

August 23, 2019



          Danny C. Reeves, Chief Judge

         A federal grand jury indicted Defendants Walter Powell and Elisha Wilson for various controlled substance offenses on April 4, 2019.[1] A jury trial is scheduled to begin September 17, 2019. Defendant Powell has filed a motion to dismiss the charges pending against him, arguing that the government failed to preserve potentially exculpatory evidence in violation of Arizona v. Youngblood, 488 U.S. 51 (1988). [Record No. 73');">73');">73');">73');">73');">73');">73');">73] The motion will be denied. As explained more fully below, Powell has failed to demonstrate that the government acted in bad faith with respect to subject evidence.


         Lexington Police Officers Johnson and Hogan were dispatched to the Microtel Inn in Lexington, Kentucky, on January 25, 2019. [Record No. 41, p. 7] Microtel employee Eugene Zita had called police for assistance evicting a guest following complaints of marijuana smoke emanating from Room 122. The room was rented in the name of Walter Powell. Officers Johnson and Hogan knocked upon arriving at Room 122 but there was no answer. The officers then advised Zita that there was no response. The three returned to Room 122 where Zita unlocked the door with a master key. Id. at p. 10. After officers performed a protective sweep of the room, Zita entered and began removing the occupants' belongings. Zita opened the room's refrigerator and observed a suspicious looking bag, which she removed from the refrigerator and handed to Officer Hogan. Id. at p. 59. The bag ultimately was determined to contain fentanyl and cocaine base. Id. at p. 15.

         Officer Johnson subsequently obtained a search warrant for Room 122 and the vehicle parked outside which was registered to Powell. Id. at p. 34. Defendants Powell and Wilson eventually returned to the Microtel and were arrested. Officer Johnson testified that Wilson discarded crack cocaine in the police cruiser, and an additional quantity of fentanyl was discovered on Powell's person after he arrived at the jail. Id. at p. 15.

         Powell has provided a copy of a hotel folio indicating that he reserved a room at the Microtel for three nights beginning on Wednesday, January 23, 2019. [Record No. 73');">73');">73');">73');">73');">73');">73');">73-2] According to the folio, Powell was assigned Room 221 on January 23, 2019; however, he moved to Room 110 the following day. For reasons that are presently unclear, he moved back to Room 122 for the final night (January 25, 2019).

         Microtel has video cameras in the hallways leading to guest rooms. “At some point early in the discovery process, ” Officer Johnson asked Microtel to provide the security footage from January 24 and 25, 2019. [Record No. 77');">77, p. 2');">p. 2] Johnson visited the Microtel four times in an attempt to obtain the footage, and provided Microtel with a blank flash drive upon which to save it. Id. Microtel provided the government with surveillance footage and the government disclosed that footage to Powell on May 6, 2019. However, when the parties viewed the video, they learned that Microtel had only provided footage from January 24, 2019.

         On May 21, 2019, Defendant Powell filed a motion to suppress the evidence seized from Room 122. The following day, and in response to Defendant Powell's motion to suppress, DEA Task Force Officer Tim Graul visited Microtel to serve a subpoena on Eugene Zita. Id. at p. 3. During this visit, Graul again asked for a copy of the surveillance footage from January 25, 2019. Microtel was able to display the footage on a computer monitor, but had no way to copy or otherwise transfer it to Graul. Microtel advised that it would provide the footage once its off-site technology provider retrieved it.

         The United States reports that, at the time of Graul's May 22 visit to Microtel, there was a lack of direct evidence demonstrating that Defendant Wilson had stayed in Room 122 prior to his arrest. Accordingly, Graul reviewed part of the surveillance video “to capture a segment of the footage revealing that [Wilson] stayed in the room the night before the arrest.” Id. Graul used his phone to record Microtel's computer monitor as it played surveillance video of Powell and Wilson going into Room 122. This footage was provided to the defendants in discovery.

         When the United States still had not received the entire video by July 1, 2019, TFO Graul served a subpoena on Microtel for the footage of January 24 and 25, 2019. After service of the subpoena, a Microtel employee called Graul and informed him that she was having trouble downloading the footage. Graul returned to Microtel in an effort to download the footage but discovered that Microtel had recorded over it.

         Powell contends (and the government does not dispute) that the video footage from January 24, 2019, shows Room 110 unattended with the door open during housekeeping, from 10:19 a.m. until 12:11 p.m. [Record No. 73');">73');">73');">73');">73');">73');">73');">73, p. 4] He suggests that the same process was likely employed for Room 122 the following day, and that “an unlimited number of persons may have had access to Room 122 on the day of the arrest.” He argues that, by not having access to the deleted video, he was denied access to information showing “any and all persons who entered or left the motel room in which the drugs were found, potentially who they were and what their activities were about, and whether those persons and their activities might lead to defenses which [Powell] could assert at trial.” Id.


         The suppression of exculpatory evidence violates the defendant's due process rights regardless of “the good faith or bad faith of the prosecution.” Youngblood, 488 U.S. at 55 (citing Brady v. Maryland, 73');">73');">73');">73');">73');">73');">73');">73 U.S. 83');">373');">73');">73');">73');">73');">73');">73');">73 U.S. 83, 87 (1963)). However, a lower standard applies when the evidence at issue is only potentially exculpatory. Id. at 57-58; United States v. Farmer, 289 Fed.Appx. 81, 86 (6th Cir, 2008). When the government loses “potentially useful evidence, ” the defendant must show bad faith on the part of the police to establish a due process violation. Youngblood, 488 U.S. at 58.

         Defendant Powell concedes that the video surveillance footage from January 25, 2019, is only “potentially useful.” [Record No. 73');">73');">73');">73');">73');">73');">73');">73, p. 5] When the government fails to preserve evidence “whose exculpatory value is ...

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