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United States v. Wiggins

United States District Court, D. New Mexico

September 4, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
NICHOLAS WIGGINS, Defendant.

          MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT

         THIS MATTER is before the Court on Defendant's Motion to Dismiss the Indictment ("Motion to Dismiss"), [Doc. 55] on the ground that government agents allegedly destroyed exculpatory photographic evidence critical to his defense. Defendant moves, in the alternative, to suppress evidence of firearms on the same basis. The Court held a hearing on the Motion to Dismiss on June 27, 2018. The Court, having considered the briefs, relevant law, and being otherwise fully-informed, finds that the motion should be denied.

         I. BACKGROUND

         After receiving a tip from a confidential informant that Defendant sold drugs from his wife's home at 10009 Range Road SW in Albuquerque ("Range Road"), the Bernalillo County Sherriff s Office (BCSO) officers began building a heroin distribution case against Defendant. A number of facts indicated the informant's tip was accurate, so in May 2016 officers secured a warrant from a state judge to search Range Road. Following the search warrant's execution there, BCSO Detective Garcia wrote in a report that officers found Defendant in a downstairs bedroom. They arrested him and searched the bedroom, finding a total of three firearms. In a post-search report, Garcia wrote that one handgun lay on the ground next to the bed, appearing as if it had been thrown, while another was tucked under a blanket on the bed close to where Defendant was found standing. The third gun, a fully automatic rifle, officers found in a top dresser drawer mixed together with Defendant's personal belongings. Drug Enforcement Agency agents participated in the warrant's execution. The firearms ended up in DEA's custody. In November 2016 Defendant was charged as a felon in possession of firearms and ammunition under 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

         In his Motion to Dismiss, Defendant contends that while executing the warrant, BCSO officers took pre-search photographs of Range Road, including photographs of the firearms that officers seized. See Def's Mot. to Dismiss, 1. In preparation of his defense, counsel for Defendant asked the prosecution about the photographs' whereabouts.[1] Id. at 2. According to Defendant, the United States first responded that officers could not locate the photographs, but then on May 15, 2018 - about a month before this case was previously set for trial - the United States told counsel for Defendant that the photographs no longer exist. Id.

         According to Defendant, those photographs are critical to his defense for two reasons. First, since "this case hinges on the location of the firearms and whether they were strewn about as the officers claim or if they were stored in their respective cases hidden from sight," photographic evidence of the firearms would show that they were concealed within gun gases in the bedroom's closet and underneath the bed, rebutting Detective Garica's allegedly false statement that the guns were found in a dispersed manner and in plain view. Id. at 4. Second, Defendant asserts that the photographs would show that he did not possess the concealed, enclosed, and out-of-sight firearms. Id. Based on these facts, it should have been obvious to government agents that the photographs would play a significant role in his defense, thereby triggering the United States' constitutional duty to preserve the photographs on Defendant's behalf under the United States Supreme Court's decision in California v. Trombetta, 467 U.S. 479 (1984). Id. at 3-7. Without them, Defendant argues that he will have no evidence at trial to rebut Garcia's allegedly false narrative that the guns were in open view. Id. at 4. Defendant stresses that testifying on the stand to rebut Garcia's version of events would likely violate his Fifth Amendment right to refrain from testifying. See Def's Reply, ¶ 1, Doc. 63. Without the critical photographic evidence, Defendant maintains that will not receive a fair trial such that the indictment must either be dismissed, or alternatively, evidence of the seized firearms must be suppressed. See Def's Mot. to Dismiss at 7.

         In its Response, the United States acknowledges that the photographs existed at one time, but then provides virtually no explanation for their disappearance, saying only that "according to Detective Garcia, no copies of [the] photographs exist." Govt.'s Resp., ¶ 6, Doc. 57. However, the United States maintains that even if the photographs existed, Defendant cannot explain how they would rebut a claim that he lacked possession of the firearms. Id. at 5. He clearly had possession of the firearms, the United States says - after all, they were seized while arresting him. Id. at ¶ 1. Maybe the photographs could have impeachment value against Detective Garcia, the United States acknowledges, but they are far from exculpatory. Id. at 5-6. The United States also contends that Defendant would not be prejudiced at trial without the photographs because he can put on substitute evidence - namely, he can call Garcia to the stand and cross examine him. Id. at 6. Or, if Defendant has a different version of events than that relayed by Garcia, Defendant can testify on his own behalf. Id. According to the United States, Defendant can also introduce photographs that his wife took immediately after officers executed the warrant. Id. His wife's photographs depict gun cases on the bedroom's floor and in other locations that are consistent with Defendant's rendering of events. Id.

         The Court held a hearing on the Motion to Dismiss on June 27, 2018. Two witnesses testified - Garcia and Christine Gabaldon, Defendant's wife. Gabaldon rented Range Road, and Defendant sometimes stayed overnight there. See Hr'g Tr. on Mot. to Dismiss Indictment, 6:12-13; 32:15-16 ("Mot. Hr'g.") Gabaldon testified that on the day officers executed the search warrant, she was on the telephone with Defendant, telling him where to find her house key that was hidden under a rock. Id. 8:22-25 - 9:1-8; 40:1-8 ("Mot. Hr'g."). Defendant entered the house, and as Defendant and Gabaldon continued their discussion Gabaldon suddenly heard raised voices and loud crashing noises on Defendant's end of the line. Id. 9:5-14. The phone went dead. Id. 9:14. Gabaldon left work immediately, arriving at Range Road within five minutes. Id. 9:25 - 10:1. She saw BCSO officers executing the warrant, and she told them she had firearms in the house and that she was a gun owner, identifying their locations in the closet and under the bed. Id. 46:4-14.

         Gabaldon testified that the firearms were hers and that she had purchased all three in 2015 and 2016. Id. 34:9-25. She testified that they were never visible when Defendant was in her house, that she never told Defendant about them, that he did not know of their existence, and that she was "the only one that had access to those firearms." Id. 35:5-16; 37:23. She also described how the day officers executed the search warrant, all three firearms were enclosed in cases. One firearm, the Glock, was enclosed in a case and stored underneath her bed. Id. 10:22-25 - 11:1. The other two firearms - the Taurus and the Masterpiece - were stored in gun cases on a shelf in her bedroom closet. Id. 14:1-17; 15:24-25. Gabaldon purchased two guns, the Glock and the Masterpiece, from a couple in 2015. Id. 34:9-23. She purchased the Taurus in May 2016 - the same period Defendant was arrested. Id. 34:25. She testified that none of her four children were allowed into her bedroom where the firearms were stored without her permission. Id. 37:23-25 -38:1-2.

         Once officers completed their work at Range Road, Gabaladon photographed the master bedroom that same evening. Id. 23:13-19; 27:4. The photographs show gun cases lying on the floor or her disheveled master bedroom. See Def's Photographs of Range Road Master Bedroom, Exs. A, A-l, B, G.

         On direct examination of Detective Garcia, Garcia testified that he was the "case agent," meaning he was "in charge of everything ... including] the initial investigation, the controlled buys, search warrant, and everything following that." Mot. Hr'g, 54:19-23. When officers executed the search warrant on Range Road, Defendant was the only non-law enforcement person there. Id. 55:22-25. Officers found Defendant in the downstairs master bedroom standing at the foot of the bed. Id. 56:1-10. After placing Defendant in handcuffs, removing him from the bedroom, and conducting a protective sweep of the house, Garcia and other detectives went back into the bedroom. Id. 57:1-25 - 57:1-9. At that point, Garcia saw the Taurus, not in a case, on the bedroom floor located less than five feet from where Defendant was found standing. Id. 59:2-10; 60:19-22. Garcia directed Detective Nance to begin photographing the house to capture its pre-search condition. Id. 58:1-14. Nance photographed the Taurus on the floor, and then officers picked it up and inventoried it on the kitchen table that officers used as a workstation. Id. 59:12-15. At that point, officers began searching the whole house. Id. 60:1-8. As Garcia began searching the master bedroom bed, he picked up a pillow next to where Defendant was standing. Id. 60:4-5. Under the pillow was another firearm, the Glock, in a case. Id. 60:7-8. Garcia found a third firearm, the Masterpiece, in a dresser's middle drawer in the bedroom. Id. 61:7-10. It was sitting on top of clothes and next to Defendant's wallet, not in a gun case. Id. 61:10-14. Garcia testified that before physically moving and inventorying the firearms, officers photographed them as they were found. Id. 61:18-20. He testified that none of the firearms were stored in the closet or underneath the bed. Id. 62:14-19. Garcia said officers normally leave gun cases behind because serve no evidentiary purpose. Id. 63:5-8.

         When asked what procedure officers would follow in photographing the firearms if they had been enclosed in cases, Garcia testified that officers would photograph the case "as is," then they would open the case and photograph the firearm within. Id. 62:22-25 - 63:1. When asked how officers maintain the photographs, Garcia testified that the police-photographer (in this case Detective Nance) would copy the photographs onto a disk. Id. 64:4-9. The disk would be given to a case agent, who then gave it to a supervisor, who in turn gives it to a secretary to turn over to prosecuting authorities. Id. 64:7-14.

         Garcia was the case agent. Id. 64:19-21. That means he received Nance's photographs on the disk. Id. 64:22-24. He then gave the disk to his supervisor, testifying that he never saw the photographs after that and never made copies of those photographs. Id. 65:8-10; 16-17. When asked what efforts he made to locate the photographs in connection with this Motion to Dismiss, Garcia testified that he had inquired of the various agencies and people who handled the disk, but had not met with success. Id. 66:9-15. He testified that Detective Nance is now out of state, but that Garcia used Nance's computer credentials to access his computer profile. Id. 66:15-20. Garcia searched through nearly 1, 000 photographs saved on Nance's computer, but none of them were of Range Road. Id. Garcia testified that he exhausted all known available avenues for locating the photographs. Id. 66:21-24.

         On cross examination of Detective Garcia, when asked whether BSCO procedures required him to deliver the photographs to the "evidence room," Garcia answered affirmatively, and stated that he did not follow this procedure. Id. 68:22-24; 69:20-25. But he also suggested that he gave the photographs directly to his supervisor. Id. 68:20-21. When asked whether he violated BCSO procedures for failing to deliver the photographs to the evidence room, Garcia answered yes. Id. 69:20-25. Garcia testified that after this case was referred for prosecution from state to federal authorities, BCSO did not maintain custody of the photographs in its secured database, although Garcia also testified that he was unaware BCSO had a secured database. Id. 77:11-21; 78:11. On further cross examination of Garcia, Defense also questioned whether he found the gun on the bed under a pillow as he testified, or whether it was under a blanket, as he wrote in his report. Id. 72:7-25 - 73:1-20. Defense also questioned Garcia's memory about the Masterpiece firearm's location in the dresser drawer. Id. 73:24-25 - 75:1-23.

         At the hearing's conclusion, the Court explained to the parties that Detective Garcia did not appear knowledgeable about the photographs' storage, and asked the United States Attorney what else he could do to locate the photographs. Id. 93:15-19. The United States said it would ask BSCO's information technology ("IT") unit to conduct further searches for the photographs. Id. 92:14-17. The United States volunteered a ...


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