Police have a duty to preserve tangible evidence that comes even temporarily within their possession, custody, or control.

Weems v. United States (decided August 9, 2018)

Players: Associate Judges Glickman and Easterly, Senior Judge Pryor. Opinion for the Court by Judge Glickman. Concurring Opinion by Judge Easterly. D.C. Law Students in Court for Weems. Trial Judge: Ann O’Regan Keary.

Facts: Weems was arrested for shoplifting. Evidence showed that after Weems took four watches from a Wal-Mart jewelry department, a manager followed him to the bedding department, where Weems removed the security tags and packaging. The manager contacted the store security guard, an off-duty MPD officer. The officer and manager then went to confront Weems and found him taking more watches out of their packaging.

After placing Weems under arrest, the officer confiscated the watches but eventually returned them to Wal-Mart. The record does not show what happened to them after. The officer did not collect the security tags from the watches. Surveillance from the incident was lost in a hard drive crash in 2014. At trial, Weems moved for dismissal or appropriate sanction based on the government’s failure to preserve the watches, security tags, and surveillance. The trial court rejected this motion and found Weems guilty at a bench trial.

Issue: Whether the trial court abused its discretion in failing to sanction the government for violating Rule 16(a)(1)(E)?

Holding: No. There can be no violation of Rule 16(a)(1)(E) from failure to preserve tangible evidence that was never within the government’s possession, custody, or control. “Possession” means actual, not constructive, possession. “Custody” refers to property held for third-party benefit. “Control” means a “legal right” to access property “on demand,” for instance, by virtue of a contract or intergovernmental agreement.  On the other hand, neither third-party willingness to produce evidence nor government ability to obtain it by subpoena is sufficient to create “control.”

Under this test, the government only had a duty to preserve the watches seized, albeit briefly, by the police. By contrast, the police never assumed possession, custody, or control of the video or security tags, and there was no duty to preserve them based on the Wal-Mart employees’ role in the investigation. Participating did not make them “agents of law enforcement” or give MPD legal right to obtain the video and security tags. The watches, on the other hand, were confiscated by police and thus were in the government’s actual, physical custody, even if only temporarily. Even so, the trial court appropriately denied sanctions because there was no evidence of bad faith and the watches had little if any evidentiary value.

Of Note: 

• This opinion does not alter the government’s duty to preserve written and recorded defendant statements under former Rule 16(a)(1)(A)/current Rule 16(a)(1)(B), which is governed by the Court’s opinion in Robinson v. United States, 825 A.2d 318 (D.C. 2003). See Slip Op. at 13-14.
• The Court recognizes “that there could be circumstances in which a private party is sufficiently aligned with and subject to the direction of the police or prosecutor as to be deemed a member of the prosecution team for Rule 16 purposes,” but finds no such circumstances on the record presented.
• Judge Easterly’s concurrence emphasizes that this holding does not take into account any official agreement between Wal-Mart and MPD or the fact that the officer retained his police powers and obligation to preserve evidence while off duty. Because possession/custody/control is a fact-bound inquiry, these factors may or may not lead to a different outcome in a different case. WC

Read the full opinion here.

DCCA to the government: Don’t blame the defense when you fail to preserve material evidence

Smith v. United States (decided September 21, 2017).

Players: Associate Judge Easterly, Senior Judges Washington and Ferren.  Opinion and concurrence by Judge Ferren.  William C. Claiborne, III for Mr. Smith.  Trial judge: Neal E. Kravitz.

Facts: Mr. Smith was arrested when his girlfriend, Iesha Miller, called police to her apartment.  When the police arrived, Mr. Smith was wearing boxer shorts and no pants.  The arresting officer asked whether Mr. Smith had clothes he could put on.  Ms. Miller responded that there was some clothing in the bedroom.  The police officer retrieved a pair of white shorts, and Ms. Miller confirmed they were what she had in mind.  When the police officer told Mr. Smith to put the shorts on, he declined to do so, saying they were not his.  The police officer then searched the shorts and found a bag of white pills in the pocket.  Mr. Smith was directed to put the shorts on and was photographed wearing them.  The shorts were not preserved and at trial, the photograph of Mr. Smith was admitted over the defense’s objection.  One of the white pills was tested and found to be a controlled substance commonly known as Bath Salts.  

Issue #1: Whether the trial court erred in determining that the government committed only “ordinary negligence” in failing to preserve the shorts, when the arresting officer violated an MPD general order requiring police officers to preserve potentially discoverable material that comes into their possession, and evidentiary value of the shorts was clear from the government’s Gerstein proffer.  

Holding: Yes.  Contrary to the trial court’s finding, the government committed gross negligence by failing to preserve the shorts.  Given the obvious evidentiary significance of the shorts, the prosecutor had an independent responsibility to preserve them.  The trial court erroneously factored only the police officer’s negligence into its culpability analysis.  See Koonce v. District of Columbia, 111 A.3d 1009, 1013 (D.C. 2015) (listing “the degree of government negligence or bad faith involved” as the first of three criteria for evaluating trial court sanction decisions under Rule 16).  

Issue #2: Whether the trial court erred in determining that the defendant shared responsibility for preserving the shorts.

Holding: Yes.  “[W]e are unwilling to say that the government’s failure to preserve the shorts in its custody can be mitigated  by an opportunity the defense may have had to prevent their disappearance.”  Slip op at 16.  

Of note:

• Counsel for Mr. Smith made no request for the government to preserve the shorts, and the Department of Corrections provided Mr. Smith with notice that its policy is to destroy all property taken from inmates if it is not picked up within 15 days.  However, the Court found that Mr. Smith’s failure to take some steps to preserve the shorts had no bearing on whether the government was negligent, for purposes of the first element of the Koonce analysis.  NG

Read full opinion here.