Miranda, Marijuana and Metadata

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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.