After Joshua Saksa was charged with “two felony counts of
drug-related charges” arising under Montana law, he filed a motion to suppress
certain evidence. State v. Saksa, 2012 WL 4088690 (Montana Supreme Court 2012). The District Court judge denied his motion
and Saska appealed. State v. Saksa, supra.
Saska then filed a motion to dismiss the charges, arguing
that the “the State intentionally had destroyed exculpatory evidence”, the loss
of which, I assume he argued, would impede his ability to mount an effective
defense at trial. State v. Saksa, supra. In order to understand his loss of
exculpatory evidence claim, it is necessary to understand what happened, in
part, during the investigation of the crimes attributed to Saska.
The opinion explains that
Lewis and Clark County Sheriff's Deputy
Sam Mahlum (Mahlum) obtained a search warrant for Saksa's apartment. Mahlum
sought the search warrant to find cash that a dealer-turned-confidential
informant allegedly had used to purchase marijuana from Saksa. Mahlum and
Deputy Dan O'Malley (O'Malley) recorded two interviews with Saksa on the day
that they executed the search warrant.
Mahlum and O'Malley first interviewed Saksa in an
unmarked police car outside Saksa's apartment. This interview focused upon
Saksa's review of the search warrant. Mahlum eventually advised Saksa of his
rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).
Saksa continued to speak to Mahlum after
acknowledging receipt of his Miranda warning. Mahlum, O'Malley, and
Saksa entered Saksa's apartment after the interview so that the officers could
execute the search warrant. Saksa led Mahlum straight to the cash.
Mahlum began recording a second
interview after Saksa showed him the cash. Mahlum asked Saksa to sign a receipt
for the cash. During this exchange, Saksa stated: `Well, I'm not going to deny
it with you guys. No, I have to talk to my lawyer.’
Mahlum then questioned Saksa on medical
marijuana and drug dealing. Neither party made further mention of Saksa's
remark about talking to his lawyer.
State v. Saksa, supra.
As you probably know, in Miranda
v. Arizona, the U.S. Supreme Court held that someone who is taken into
“custody,” which essentially means they do not feel/are not able to decline an
encounter with police, must be given certain warnings and waive the rights
communicated in those warnings before police can interrogation (e.g., ask
questions of) them. Here’s a sample Miranda warning.
After the state charged Saska with the drug crimes, he
obtained the CD version of his
interview with Mahlum during the discovery process. Saksa's review of the CD
led him to conclude that five minutes of the interview in his apartment were
missing.
Saksa based his claims on his
comparison of Mahlum's time entries on the CD version, which indicated the
interview had taken 32 minutes, with the actual duration of the CD, which took
only 27 minutes. The time discrepancy led Saksa to request an opportunity to
examine the original digital file.
The State informed Saksa, however, that
Mahlum had transferred the original digital file from his digital recorder to
his computer. Mahlum then had copied the file to a CD and deleted the digital
file from his computer. This practice matched his usual method of preserving
recorded evidence.
State v. Saksa, supra.
Saksa then moved to suppress
the statements that he had made to
Mahlum during the interviews. Saksa claimed that he twice had requested a
lawyer-once when he and Mahlum first had entered the apartment and later as
depicted on the recording of the interview.
Mahlum could not remember Saksa having
requested a lawyer other than as depicted on the recording. O'Malley testified
that he had heard no request from Saksa for a lawyer.
Saksa also questioned the order of the
discussions on the recordings.
State v. Saksa, supra.
The District Court judge “found Saksa's testimony not to be
credible regarding the order of the discussions.” State
v. Saksa, supra. In support of his motion, Saska also presented the
testimony of
James Holmes, a certified computer
examiner, [who] testified that it was easy to alter or manipulate audio files.
Holmes explained the importance of preserving digital files due to the fact
that more information can be obtained from the computer than from the CD.
Holmes testified that he could analyze
the metadata from the original digital file to determine if there had been any
modifications. Holmes could not determine whether the recording had been
altered based simply on the CD
State v. Saksa, supra.
After reviewing Saksa’s arguments and evidence, the District
Court judge found that
a discrepancy existed in the times
announced by Mahlum on the recording of the CD version of interviews. Mahlum
explained that the discrepancy likely had occurred due to his having used two
different clocks to announce the beginning and ending times of the recordings.
Mahlum testified that he had not
altered the recordings during the copying process. Both Mahlum and O'Malley
testified that the recordings depicted accurately what had occurred.
State v. Saksa, supra.
The District Court apparently found Mahlum and O’Malley
credible, because she denied Saksa’s motion to suppress based on what the judge
concluded was his “failure to demonstrate that Mahlum had deleted any portion
of the interview.” That ruling, as noted above, led to this
appeal. State v. Saksa, supra.
On appeal, as noted above, Saksa argued that
Mahlum's alleged destruction of the
original digital file prevented him from developing evidence that could
corroborate his claim that he had requested an attorney at the start of the
second interview.
State v. Saksa, supra.
In addressing his argument, the Supreme Court noted that it
reviews
a district court's ruling on a motion
to suppress to determine whether the court's findings of fact are clearly
erroneous and whether the court correctly interpreted and applied the law to
these findings. State v. Spaulding, 361 Mont. 445, 259 P.3d 793 (Montana
Supreme Court 2011).
State v. Saksa, supra.
We now come to why I cannot report the facts involved in the
encounter that led to Saska’s being charged and filing the motion to
dismiss. In the opinion, the Supreme
Court explains that it had “determined
to decide this case pursuant to Section I, Paragraph 3(d), of our 1996 Internal Operating Rules, as amended in 2006, that provide for memorandum opinions.” State v. Saksa, supra.
Section I paragraph 3(d)(i) of the court’s Internal
Operating Rules, which you can find here, provides as follows:
After all briefs have been filed in any
appeal, the Supreme Court by unanimous action may, sua sponte, enter an order or memorandum opinion affirming the
judgment or order of the trial court for the reason that it is manifest on the
face of the briefs and the record that the appeal is without merit because:
(1) the issues are clearly controlled by settled Montana law or federal law binding upon the states;
(2) the issues are factual and there clearly is sufficient evidence to support the jury verdict or findings of fact below; or
(3) the issues are ones of judicial discretion and there clearly was not an abuse of discretion.
The Supreme Court had begun its opinion by noting that
[p]ursuant to Section I, Paragraph
3(d), Montana Supreme Court Internal Operating Rules, this case is decided by
memorandum opinion and shall not be cited and does not serve as precedent. Its
case title, cause number, and disposition shall be included in this Court's
quarterly list of noncitable cases published in the Pacific Reporter and
Montana Reports.
State v. Saksa, supra.
The court then found that it
is manifest on the face of the briefs
and the record before us that nothing indicates that the District Court's
findings of fact were clearly erroneous and the District Court correctly
applied the law to these findings. . . .
The District Court determined that
Saksa had presented no credible evidence that `the recordings were in fact
altered.’ Both Mahlum and O'Malley testified that the recordings depicted
accurately what had happened during the conversations with Saksa. The District
Court specifically found Saksa's testimony not to be credible regarding his
claim that the recordings depicted events out of the progression in which they
had taken place.
State v. Saksa, supra.
The court therefore affirmed the District Court’s
ruling. State v. Saksa, supra.
One of the justices wrote a concurring opinion, which I
found interesting, which is why I’m writing about this case. He explained that
[o]n the facts of this case I concur
with the Court's Opinion. That said, I suggest however, that a prosecutorial or
law enforcement agency that does not have protocols in place to preserve the
metadata of digital audio, video and documentary evidence, is courting
disaster.
While this Court has not addressed the
issue yet, metadata is discoverable in the federal courts. See U.S.
v. Rubin/Chambers, Dunhill Ins. Servs., 825 F.Supp.2d 451 (U.S. District
Court for the Southern District of New York 2011).
In my view, metadata would, likewise,
be discoverable under Montana Code § 46–15–322, Montana's criminal discovery rules, especially where such information is arguably exculpatory. Brady v. Maryland, 373 U.S. 83 (1963). Some offenses are, by their nature, heavily
dependent upon digital evidence.
I suggest that the rule will eventually
be that the preservation of digital evidence includes the preservation of the
associated metadata. To the extent that they have not already done so,
prosecutors and law enforcement would be well-advised to proactively prepare
and to beat the imposition of this discovery rule in a criminal case where it
actually matters.
State v. Saksa, supra.
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