United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S
MOTION TO DISMISS THE INDICTMENT
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
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).
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. 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.
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.
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.
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.
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.
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.
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.
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.
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.
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 -
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 ...