DEFENDANT'S POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO EXCLUDE EVIDENCE
FACTS
Defendant John Smith resided at 123 Elm Street, #7 in Seascape, California, with Marie Querie and their minor child. Both adults occupied and routinely used all parts of the rented apartment.
On April 25, 2001, police officers conducted a probation search of Mr. Smith's residence, during the course of which they located a few baggies of marijuana and associated objects in Marie Querie's purse. When the officers found an additional three baggies of marijuana on the front porch under a table, Marie Querie spontaneously stated that all of the marijuana and related objects were hers and defendant Smith knew nothing about them.
The officers seized the plastic baggies and their contents on April 25, 2001, but did not send them to the Department of Justice (DOJ) for analysis until May 6, 2001. The date DOJ actually tested the baggies for fingerprints is unknown. In conducting fingerprint tests on the baggies, DOJ used the black powder method instead of the "super glue" method (cyanoacraylate), the effect of which was to cover with black powder all of the baggies taken from the front porch, rendering them useless for any testing by the defense.
The DOJ fingerprint testing revealed a partial print of defendant Smith's right palm on one of the baggies found on the front porch. Because fingerprints interact with "esters," a chemical manufacturers place on plastic to keep it flexible, passage of time in taking prints from plastic is very important. Oil/wax fingerprints deteriorate quite rapidly; in a matter of a few days, such material will be useless.
Defense expert examination of the plastic baggies taken from the front porch, performed on July 16, 2001, revealed the previous existence of fingerprint material on all of the baggies, but, because of the passage of time and the ubiquitous black powder, the latent fingerprint material was useless and could not be read.
The defense expert is of the opinion that possibly exonerating fingerprint evidence was lost through unexplained delay in submitting the baggies to DOJ, where the loss was sealed by the unexplained use of the black powder method--an outmoded and archaic method of taking prints from plastic surfaces.
ARGUMENT
1. Under People v. Hitch (1974) 12 Cal.3d 641, the police are guilty of bad faith.
California v. Trombetta (1984) 469 U.S. 479, 104 S.Ct. 2528, and Arizona v. Youngblood (1988) 488 U.S. 51, 109 S.Ct. 333, have superseded Hitch to the extent that the former cases set out the burden the defense must carry to establish "bad faith" destruction of evidence as well as notice to the police that, before destruction, such evidence was material to a defense issue. But Hitch also required that the authorities implement "systematic and vigorous" procedures to ensure against the destruction or loss of evidence potentially important to the defense. No federal or California case has declared this latter requirement of Hitch invalid. It is still the law in this state. Id., 12 Cal.3d at 652-653.
In this case, the officers are experienced narcotic task force officers readily familiar with all phases of gathering and preserving evidence of marijuana use and possession. Knowledge of the rapid deterioration of fingerprints on plastic baggies and the use of "magic glue" as the appropriate way to test for prints without rendering the samples useless for future testing is imputable to them. It follows that any system that departs from the Hitch standard of preservation of evidence where coupled with notice of its importance to the defense is suspect per se and constitutes bad faith on the part of the authorities sufficient to justify evidentiary sanctions. People v. Wilson , supra, 191 Cal.App.3d at 167 (decided after Trombetta).
The Youngblood requirement of "bad faith" should not be read as synonymous with malice. Rather, bad faith arises whenever it appears that police have intentionally used substandard procedures and methods resulting in the destruction or loss of evidence material to the defense after notice. The issue underlying Hitch's preservation-of-evidence holding is that of the right to a fair trial. Nothing in the federal cases challenges the concept of that fundamental right. In this case, to allow the authorities to use outmoded and destructive methods of testing evidence so long as no active animus can be shown is to undermine the essence of the fair trial requirement, turning a blind eye to outmoded methods, which necessarily accelerates loss of evidence.
To sustain a case against defendant here, the police must rely on the palmprint at issue. It follows that the palmprint is a material part of the evidence against him. It is fair to say that the police recognized the importance of fingerprint evidence early in this case. Because they were present and heard Marie Querie's statement exonerating defendant from possessory association with any marijuana, the police had additional reason to know that a prompt and complete testing of all fingerprint material on the baggies was necessary to preserve potentially exonerating evidence. Proof of Ms. Querie's fingerprints on the baggies would have tended to corroborate her statement exculpating Mr. Smith, whose own palmprint on the baggy could easily be explained in a manner consistent with innocence in light of the shared residence. See Caljic 2.01.
In People v. Johnson (1989) 47 Cal.3d 1194, 1233, the supreme court acknowledged that the Trombetta formulation of the duty-to-preserve test is the rule in California--i.e., "evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id., 47 Cal.3d at 1233.
In this case, Marie Querie was also arrested for drug felonies, is represented by counsel, and retains Fifth Amendment privileges against testimony. Defendant Smith can call her to the witness stand to establish her unavailability as a witness because of her privilege against self-incrimination, but he cannot require her to testify. Her extrajudicial exculpatory statements as to him are hearsay under Evidence Code §1200. Defendant Smith may nonetheless call the police as witnesses to her exonerating statements. See People v. Gambos (1970) 5 Cal.App.3d 187, 192; Evid. Code §§1230, 405, on alternate grounds. Ms. Querie's statement also constitutes words of notice to the police of the importance of preserving all fingerprint evidence as potential exoneration of defendant. Words of notice, where not offered to prove the truth of the matter asserted contained therein, but only the fact of notice, is not hearsay. See l Jefferson, California Evidence Benchbook (2nd ed.) §1.6, at 76. Ms. Querie's extrajudicial statement is also directly admissible on the issue of good faith. See l Witkin, California Evidence (3rd ed. 1986) "Hearsay Rule," §600, at 572 (good faith), §597, at 569 (knowledge).
Aside from Ms. Querie's statement, defendant has no viable alternative to demonstrate another's handling and possession of the baggies because of the loss of other fingerprint material present on the baggies but obliterated by the passage of time between seizure and submission to DOJ as well as the damage done by the black powder.
2. Evidence that has been subject to spoliation should be excluded.
Bad faith destruction of evidence can be reached by a pretrial motion to exclude evidence. People v. Anderson (1976) 59 Cal.App.3d 831, 840. The court may suppress evidence against a defendant to even the playing field in lieu of dismissal. Brown v Municipal Court (1978) 86 Cal.App.3d 357, 365.
It is axiomatic that once material evidence is in the prosecution's possession, the prosecution cannot lose or destroy it. In moving to exclude evidence the prosecution destroyed, the defense as a general rule must establish bad faith on the part of the police--i.e., that the police had reason to know of the potential exculpatory value of the lost or destroyed evidence. See generally Arizona v. Youngblood, supra, 488 U.S. at 58; California v. Trombetta, supra, 469 U.S. 479. The prosecution's good or bad faith is of crucial importance when it fails to preserve evidence that, when subjected to tests, might have exculpated the defendant. Id., at 488; People v. Pastor Cruz (1993) 16 Cal.App.4th 322, 325. The defense meets its burden to establish the materiality of such evidence by showing that, if preserved, it had a reasonable possibility of constituting evidence favorable to the accused. People v. Wilson (1987) 191 Cal.App.3d 161, 165. Where a defendant can establish notice to the police of the materiality of evidence, the police's failure to preserve that evidence takes on a constitutional dimension. People v. Sixto (1993) 17 Cal.App.4th 374, 396-397; People v. Douglas (1990) 50 Cal.3d 468, 512-513.
Where, as here, the defense demonstrates spoliation of evidence that police were alerted to as material to the defense, and where the defendant has no viable alternative to obtain comparable evidence, the court is justified in excluding such evidence in its entirety. People v. Pastor Cruz, supra, 16 Cal.App.4th at 325. Defendant, of course, is asking the court to exclude evidence of the palmprint because, without the use of the latent fingerprint material destroyed by police delay and use of black powder, defendant has been denied the opportunity to demonstrate the existence of other fingerprints consistent with Ms. Querie's statement exonerating defendant.
CONCLUSION
This is not a case where defendant has contributed to the delay or the destruction of the evidence. It is a case where control over the evidence remained exclusively in the prosecution's hands. When the defense made its timely and proper request to make an independent test of the evidence, it found that the passage of time attributable to delayed delivery to DOJ coupled with the use of black powder rendered defense testing impossible. Materiality is obvious since the prosecution must also rely on fingerprint evidence. Notice is clearly established by Ms. Querie's statements. The prosecution's unexplained delay in having the baggies tested, along with the black powder, clearly caused the loss of potentially exonerating evidence and has created a false impression by leaving defendant's palmprint out of context. It should be excluded as evidence.
1. You'll need to draft a declaration to support this motion. You can make one under your signature and incorporate the expert's report by reference to support the fingerprint forensic material. You may want to draft one for Mr. Smith's signature reciting instances of police harassment--i.e., bad faith--to lend aid to his claims.
2. I noticed that the police merely recited "information" about drugs without more to justify the probation search. I suggest that you go into that area or make a companion motion for disclosure, since a fictitious or unreliable source can combine with evidence of unfounded or repeated harassment searches to contribute to suppression. There are cases that hold that unfounded probation searches will result in the suppression of evidence.
3. To get Ms. Querie's statement in under People v. Gambos, you'll have to demonstrate she is unavailable as a witness. I'd get a letter from her lawyer raising the Fifth, and copy it to the D A, asking for a stipulation to avoid having to call her.
4. You may want to explore why it took so long to send the stuff to DOJ as well as the officers' familiarity with "super glue" method.
5. There are real problems with this case:
a. Defendant wants his palmprint suppressed because of the loss of someone else's fingerprints. His palmprint wasn't destroyed. It was merely highlighted out of possible context.
b. The police can always say that they did not choose the black powder method--i.e., they didn't contribute to the problem. If they maintain they sent the stuff in the usual period of time (as they will), then they can deny bad faith delay--i.e., usual department procedures.
c. Bad faith can be demonstrated by allegations of police animus toward defendant. See Miller v. Vasquez (9th Cir. 1989) 868 F.2d 1116, 1121; People v. Zapien (1993) 4 Cal.4th 929, 964.
d. Defendant's arguments won't lie at all if he can show only the possibility of exoneration as contrasted with the probability of exoneration. People v. Beeler (1995) 9 Cal.4th 953, 39.
e. A weakness of the case is the palmprint itself. If Smith knew nothing about the stuff, how did his palmprint get on the baggie? This argument goes to the weight, not to the admissibility of the evidence, and Smith can still get Querie's statement into evidence under Gambos.
f. The basic problem in the case is that most courts are reading bad faith to mean active malice or police animus toward a defendant instead of substandard procedures.