United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
C. Reeves, Chief Judge
federal grand jury indicted Defendants Walter Powell and
Elisha Wilson for various controlled substance offenses on
April 4, 2019. 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
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.
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.
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).
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.
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.
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.
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.
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.
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.
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 ...