UNITED STATES v. WILLIAMS (2024)

Order

Defendant Alvin D. Williams claims the United States violated his due process rights by failing to preserve dash camera footage from an encounter with law enforcement that led to an impaired driving charge against him. Mot. Dismiss, D.E. 23. He says the appropriate remedy for the government's conduct is to dismiss that charge or, at least, give an adverse inference instruction to the jury about the loss of evidence. Id. The United States acknowledges it did not preserve the footage. But it argues Williams is not entitled to the relief he seeks because he can access comparable evidence, and cannot show that bad-faith conduct led to the loss of the footage. Resp. Mot. Dismiss, D.E. 24.

Since the footage is lost, its content—and thus its exculpatory value—is unknown. Thus Williams must show that the government's bad-faith conduct led to its loss. The evidence presented establishes that the loss was the result of negligence, not bad faith. As a result, Williams is not entitled to have the court dismiss the charges against him or give an adverse inference instruction. So the court must deny his motion.

I. Background

In the early-morning hours of August 13, 2022, Quinlan M. Ogdon, a Military Police Officer at the Fort Liberty Military Installation, learned that an impaired driver may have tried to enter the base at one of its access control points. Hr. Tr. at 7:18–20, 8:15–23. When Ogdon arrived at the ACP, the guard stationed there told him that she smelled alcohol coming from the driver of a car that had approached the ACP. Id. at 8:19–23. That individual was later learned to be Defendant Alvin D. Williams.

While speaking with Williams, Ogdon noticed an “odor of alcohol, slurred speech, bloodshot, watery eyes, and [that] he was swaying.” Id. at 9:1–3. The officer then asked Williams if he would participate in a series of standardized field sobriety tests. Id. at 9:4–6. Williams agreed to do so. Id. at 9:7–8.

According to Ogdon, during these tests, Williams displayed several clues of impairment. To begin with, during the horizontal gaze nystagmus test, Ogdon detected six clues of impairment. Id. at 9–14. Then Ogdon administered a walk-and-turn test, which he says yielded six out of eight possible clues of impairment. Id. at 9:17–24. And next he asked Williams to perform the one-leg-stand test. Id. at 9:25–10:2. Ogdon observed one clue of impairment during that test. Id. at 10:3–7.

Along with these standardized field sobriety tests, Ogdon performed several other tests, both physical and chemical, to assess Williams's sobriety. Id. at 10:12–22. The results of these tests suggested that Williams had consumed alcohol and may have been impaired. Id. Ogdon eventually arrested Williams and charged him with impaired driving.

Ogdon memorialized his encounter with Williams in several documents. Among them were an Alcohol Incident Report and an Investigator Statement. These documents, however, contain at least one inconsistency: although the Alcohol Incident Report reflects that Williams displayed one clue of impairment during the one leg stand test, the Investigator Statement says he displayed two.

The cameras in Ogdon's patrol vehicle also should have memorialized his encounter with Williams. Id. at 10:24–11:4. The vehicle contained a camera pointing forward, which would have recorded Ogdon's interactions with Williams outside the car. Id. at 10:24–11:4, 14:17–20. And it is also equipped with an internal camera that would have recorded Williams and anything he said once he was in the car's back seat. Id. at 14:21–23, 15:1–3.

Ogdon is supposed to save this footage at the end of each night. Id. at 11:12–15. And if he doesn't, his supervisors are supposed to. Id. Saving the footage is simple. Ogdon or his supervisors needed only to log on to a website, locate the footage, archive it, and attach a case number to it. Id. at 25:4–12.

But no one saved the video from that night. Id. at 13:23–14:16. So the footage was lost, along with footage of two other traffic stops Ogdon conducted. Id. at 5:1–18. Ogdon could not explain why this failure occurred. Id. at 11:11–14.

Williams eventually moved to dismiss the charges against him because of the United States’ failure to preserve the video footage. He claims that the loss of this evidence violates his due process rights under the Fifth Amendment. In the alternative, he asks that if the case goes to trial the court give an adverse inference instruction to the jury based on the spoliation of this evidence. The court then held an evidentiary hearing where Ogdon testified.

After the hearing, the court ordered the United States to submit a supplemental brief addressing two issues. D.E. 30. First, the United States had to provide the court with a list of all pending cases arising out of the Fort Liberty Military Reservation in which a motion has been filed alleging that the United States or one of its agents failed to preserve video footage of the events in question. Id. And second, the United States was required to provide the court with a list of all other pending cases arising out of the Fort Liberty Military Installation in which the United States knows that it or one of its agents has failed to preserve video footage of the events in question. Id.

In response, the United States eventually filed its supplemental brief. D.E. 33. That document said that while there was only 1 case in which a similar motion had been filed, it was aware of evidence-preservation issues in over 130 other pending cases. Id.

The court then gave Williams a chance to file a supplemental brief discussing the impact, if any, the information contained in the United States’ filing has on the questions presented by his motion. D.E. 34. He did not do so.

II. Discussion

The Fifth Amendment prevents the federal government from depriving a person “of life, liberty, or property, without due process of law[.]” U.S. Const. amend. V. Williams claims that the government violated this right when it failed to preserve Ogdon's dash camera footage.

The Supreme Court has issued two opinions addressing how the loss or destruction of evidence impacts a defendant's due process rights: California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), and Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). These cases provide the standard the court will use to assess Williams's claim.¹

Like this case, Trombetta involved individuals facing drunk driving charges. Trombetta, 467 U.S. at 482, 104 S.Ct. 2528. As part of the investigation into their conduct, each defendant submitted to an Intoxilyzer test that would analyze their breath to determine the concentration of alcohol in their blood. Id. at 481–82, 104 S.Ct. 2528. Although it was “technically feasible” for the officers administering the test to preserve the breath sample, they did not ordinarily do so “and made no effort to do so” in the cases before the Court. Id. at 482–83, 104 S.Ct. 2528.

Prior to their trials, the defendants moved to suppress the results of the Intoxilyzer test because “the arresting officers had failed to preserve samples of [their] breath.” Id. at 482, 104 S.Ct. 2528. The trial court denied their order and, after several levels of appellate review, the case arrived at the Supreme Court. The question before the court was whether the Fourteenth Amendment's “Due Process Clause requires law enforcement agencies to preserve breath samples of suspected drunken drivers in order for the results of breath-analysis to be admissible in criminal prosecutions.” Id. at 481, 104 S.Ct. 2528.

The Court began by noting that its prior decisions on access-to-evidence issues gave criminal defendants the right to receive exculpatory evidence in the government's possession. Id. at 485, 104 S.Ct. 2528. For example, in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Court held that a criminal has a due process right to request and receive evidence in the government's possession that is material to his guilt or relevant to his punishment. Trombetta, 467 U.S. at 485, 104 S.Ct. 2528.

But the Court explained that its cases were “[l]ess clear” about “the extent to which the Due Process Clause imposes on government the additional responsibility of guaranteeing criminal defendants access to exculpatory evidence beyond the government's possession.” Id. at 486, 104 S.Ct. 2528. And the Court had “never squarely addressed the government's duty to take affirmative steps to preserve evidence on behalf of criminal defendants.” Id.

The Court explained that the lack of “doctrinal development in this area reflects, in part, the difficulty of developing rules to deal with evidence destroyed through prosecutorial neglect or oversight.” Id. It noted that “[w]henever potentially exculpatory evidence is permanently lost, courts face the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed.” Id. Plus there were limited options to address the destruction of evidence: “the court must choose between barring further prosecution or suppressing ․ the State's most probative evidence.” Id. at 486–87, 104 S.Ct. 2528.

Given these challenges, the court declined to find that the failure to save the breath samples violated the Fourteenth Amendment. There was no sign that the evidence was destroyed as part of “a calculated effort to circumvent the disclosure requirements established by Brady v. Maryland and its progeny.” Id. at 488, 104 S.Ct. 2528. There was nothing in the record suggesting “official animus towards respondents or of a conscious effort to suppress exculpatory evidence.” Id. Instead, the failure to preserve the breath samples resulted from officers “acting ‘in good faith and in accord with their normal practice.’ ” Id. (quoting Killian v. United States, 368 U.S. 231, 242, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961)).

The Court found nothing about that practice to be constitutionally problematic. Id. That is because, “[w]hatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense.” Id. And to meet this standard of constitutional materiality, the lost evidence must satisfy two criteria. First, the “evidence must ․ possess an exculpatory value that was apparent before the evidence was destroyed[.]” Id. at 489, 104 S.Ct. 2528. And second, it must “be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id.

According to the Supreme Court, the breath samples failed both tests. They did not meet the first prong because of the standardized procedures for use of the Intoxilyzer, there was little chance of error and thus “the chances are extremely low that preserved samples would have been exculpatory.” Id.

But “[e]ven if one were to assume that the Intoxilyzer results in this case were inaccurate and that breath samples might therefore have been exculpatory” their destruction would not have violated the defendants’ due process rights. The defendants had the ability to inspect the machine and its calibration records to show it was unreliable. Id. They also had the ability to present evidence that circumstances existed which would have produced inaccurate results. Id. And they could cross-examine the machine's operator to challenge whether the test was properly administered. Id.

Given all of that, the Supreme Court concluded that the Fourteenth Amendment “does not require that law enforcement agencies preserve breath samples in order to introduce the results of breath-analysis tests at trial.” Id. at 491, 104 S.Ct. 2528.

Four years later the Supreme Court returned to this issue in Youngblood. In that case, a defendant challenged his conviction on due process grounds because the government failed to preserve samples of bodily fluids obtained from the victim's body and clothing. Youngblood, 488 U.S. at 52, 109 S.Ct. 333. The Court heard the case “to consider the extent to which the Due Process Clause of the Fourteenth Amendment requires the State to preserve evidentiary material that might be useful to a criminal defendant.” Id.

It began by noting that when the government fails to produce material exculpatory evidence in its possession, whether it acted in good faith or bad faith is irrelevant. Id. at 57, 109 S.Ct. 333. The Court, however, believed that “the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” Id. at 57, 109 S.Ct. 333.

This belief was based on two concerns. To begin with, the Court pointed to Trombetta’s discussion of the difficulty of determining the content—and thus the evidentiary value—of material that no longer exists. Id. at 58, 109 S.Ct. 333 (quoting Trombetta, 467 U.S. at 486, 104 S.Ct. 2528). And the Court was also reluctant “to read the ‘fundamental fairness’ requirement of the Due Process Clause as imposing on the police an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution.” Id. (citation omitted).

The Court then held “that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id. This standard limited the duty to preserve evidence “to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant.” Id. at 58, 109 S.Ct. 333. Since law enforcement's conduct could “at worse be described as negligent” and “there was no suggestion of bad faith on the part of police[,]” the samples’ destruction did not violate the Due Process of Law Clause. Id.

So after Trombetta and Youngblood, analysis of a claim that the government violated a defendant's due process rights by failing to preserve evidence involves the following steps. To begin with, the court must determine whether the lost evidence is exculpatory or only potentially exculpatory. In resolving this initial question the court must consider whether the evidence's exculpatory value was apparent to law enforcement. If so, the court then considers whether the defendant can obtain comparable evidence through reasonably available means. But if not, then the court must assess whether the loss of the evidence was due to law enforcement's bad-faith conduct. The bad-faith standard requires more than a showing that evidence was lost because of the negligence of government actors.

Williams argues that the lost dash camera footage qualifies as exculpatory and meets Trombetta’s constitutional materiality standard. He maintains that the footage would have shown how he performed on the field sobriety test and that he could have used it to challenge the probable cause for his arrest, challenge Ogdon's credibility, and emphasize to the jury the portions of the tests he performed well.

While neither Trombetta, nor Youngblood delved into what makes evidence exculpatory for due process purposes, other cases about access-to-evidence rights have. For example, in United States v. Bartko, the Fourth Circuit explained that evidence is exculpatory in the context of a Brady violation “if it ‘may make the difference between conviction and acquittal’ had it been ‘disclosed and used effectively.’ ” 728 F.3d 327, 338 (4th Cir. 2013) (quoting United States v. Wilson, 624 F.3d 640, 661 (4th Cir. 2010)).

The problem with assessing whether the lost footage is exculpatory is that since the video no longer exists, it is impossible to say what it would show. So it is just as impossible to say whether and how its contents would have assisted Williams's defense. Trombetta, 467 U.S. at 487, 104 S.Ct. 2528 (“Whenever potentially exculpatory evidence is permanently lost, courts face the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed.”). And there is no indication that law enforcement considered the footage to be exculpatory evidence. Given that reality, the footage can only be called potentially exculpatory.

What's more, the Fourth Circuit has considered several times the standard to apply to the destruction of audio and video records. And each time, it has applied the bad-faith standard for potentially exculpatory evidence. United States v. Adetayo, 682 F. App'x 216, 216–17 (4th Cir. 2017) (affirming the denial of a motion to dismiss based on destruction of video evidence because of lack of bad faith); United States v. Thompson, 584 F. App'x 101 (4th Cir. 2014) (applying the bad-faith standard to the destruction of footage of a traffic stop); United States v. Hawkins, 531 F. App'x 342, 344 (4th Cir. 2013) (concluding that a defendant needed to show bad faith to establish a due process violation based on selective preservation of video footage); United States v. Montieth, 662 F.3d 660, 666 n.1 (4th Cir. 2011) (finding no due process violation in the destruction of footage of a traffic stop because there was “no bad faith on the part of law enforcement in the tape's destruction.”); United States v. Bloodworth, 412 F. App'x 639, 640 (4th Cir. 2011) (rejecting due process challenge to destruction of audio recording of traffic stop because of lack of bad faith); United States v. Wright, 333 F. App'x 772, 777 (4th Cir. 2009) (determining, under the bad-faith standard, whether to grant a motion for judgment of acquittal based on loss of an audio recording); United States v. Henderson, 41 F. App'x 651, 652 (4th Cir. 2002) (holding that destruction of a recording of an officer's earlier testimony did not violate the due process clause because “there is no evidence of bad faith”); United States v. McClure, 918 F.2d 956, 1990 WL 180122, at *5–6 (4th Cir. 1990) (unpublished) (relying on Youngblood’s bad-faith standard when officers failed to obtain video footage of bank robbery). Although most of these cases are unpublished and thus are not binding precedent, King v. Blankenship, 636 F.2d 70, 72 (4th Cir. 1980), when taken together they persuasively establish that courts should analyze claims based on lost footage under the bad-faith standard.

Given that the video footage qualifies as potentially exculpatory, Youngblood’s bad-faith standard applies. But Williams's motion did not argue that the loss of the video stemmed from bad faith by law enforcement. And there was only a superficial attempt to argue at the hearing on this motion that bad-faith conduct led to the loss of the footage. What's more, Williams did not take the opportunity to argue that there were systemic issues about video retention at Fort Liberty which would support a finding of bad faith by law enforcement. So by not making this argument, Williams has waived it. See Russell v. Absolute Collection Servs., Inc., 763 F.3d 385, 396 n.* (4th Cir. 2014) (explaining that failing to present a legal argument waives that argument).

In any event, the record suggests that, at least when considering Williams's case in isolation, the loss of the footage stemmed from negligence, not bad-faith conduct. Ogdon was aware of the need to preserve the footage, but he and his supervisors just didn't do it. There is no evidence suggesting the loss was an attempt to avoid the government's Brady obligations. And given that Williams's footage was not the only footage that law enforcement lost that night, it cannot be said that the loss resulted from affirmative, willful actions directed at Williams. So since Williams has not shown that the loss of this potentially exculpatory evidence was the result of bad-faith conduct by law enforcement, he has no right to have the charge against him dismissed on that basis.

Yet even if the court applied the Trombetta standard, Williams would fair no better. It is not clear that the footage had an exculpatory value that would have been apparent to law enforcement. Based on Ogdon's testimony, the footage likely would have been more inculpatory than exculpatory, since it would have shown him exhibiting multiple clues of intoxication, including swaying back and forth.

Plus, Williams's questioning of Ogdon demonstrated that he could obtain comparable evidence through cross-examination at trial. Those questions yielded detailed information about the field sobriety tests and the rest of Ogdon's interaction with Williams. Williams also remains able to challenge the general reliability of the field sobriety tests, Ogdon's level of training and experience administering those tests, and the manner in which Ogdon administered them. This sort of evidence was determined in Trombetta, to be enough to preclude dismissal of charges based on the loss of other (and potentially better) evidence. 467 U.S. at 490, 104 S.Ct. 2528. So Williams could not prevail even if the court applied the standard for loss of exculpatory evidence. Thus he cannot have the charge against him dismissed because of the loss of the video footage.

Alternatively, Williams asks the court to give the jury an adverse inference instruction based on the loss of the footage. Under the spoliation of evidence rule, the court may give an adverse inference instruction against a party who loses or destroys relevant evidence. United States v. Johnson, 996 F.3d 200, 206 (4th Cir. 2021) (quoting Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 155 (4th Cir. 1995)). But to be entitled to have that instruction given, there party seeking it must show “that the party knew the evidence was relevant to some issue at trial and that his willful conduct resulted in its loss or destruction.” Id. (quoting Vodusek, 71 F.3d at 156). Given the requirement for willful conduct, a court should not give an adverse inference instruction when confronted with “the mere negligent loss or destruction of evidence[.]” Id. at 217 (quoting Vodusek, 71 F.3d at 156).

Williams is not entitled to an adverse inference instruction for the same reason he has no right to have the charge against him dismissed. The loss of the dash camera footage stemmed from negligence by Ogdon and his supervisors, not willful conduct. So the court denies his request for an adverse inference instruction.

There is, however, something deeply dissatisfying about the outcome required by the law here. It appears that Williams was far from the only defendant whose dash camera footage was lost due to negligence of the law enforcement apparatus at Fort Liberty. While the issue was not developed or argued here, it may be that a future court could conclude that a substantial volume of negligent acts establishes bad faith conduct on the government's part. In the meantime, the court expects the United States to take the necessary steps to resolve these evidence preservation issues.

III. Conclusion

For these reasons, the undersigned denies Williams's motion to dismiss (D.E. 23).

FOOTNOTES

1.   Both cases decided this issue under the Fourteenth Amendment's Due Process of Law Clause. But given that this matter involves the federal government, it is the Fifth Amendment's Due Process of Law Clause that applies. See Dusenbery v. United States, 534 U.S. 161, 167, 122 S.Ct. 694, 151 L.Ed.2d 597 (2002). Neither party, however, has indicated that a different standard would apply under the Fifth Amendment. And, as discussed below, courts have repeatedly applied the reasoning of these cases to cases involving the United States.

Robert T. Numbers, II, United States Magistrate Judge