United States District Court, W.D. Washington, Seattle
ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION TO COMPEL PRODUCTION OF BRADY MATERIALS AND DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE
JOHN C. COUGHENOUR, District Judge.
These matters come before the Court on Defendant's Motion to Compel Production of Brady Materials (Dkt. No. 48) and Defendant's Motion to Suppress Evidence (Dkt. No. 49). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby DENIES Defendant's Motion to Compel (Dkt. No. 48) with regard to all requests save Defendant's second Brady materials request, GRANTS IN PART Defendant's second Brady materials request in the Motion to Compel (Dkt. No. 48), subject to the specifications in this Order, DENIES Defendant's Motion to Suppress (Dkt. No. 49), and DENIES Defendant's request for an evidentiary hearing.
Defendant, forty-three-year-old Nathan Bonds ("Slim"), has been charged with the sex trafficking of two sixteen year old girls ("JV1" and "JV2") and with transporting JV1 and JV2 and an adult woman ("FV1") across state lines for the purposes of prostitution. During the spring of 2013, JV1 and JV2 provided statements to law enforcement that "Slim, " a man subsequently identified as Defendant, had convinced them to engage in commercial sex and to provide him with the proceeds. (Affidavit for a Search Warrant, Dkt. No. 53, Ex. 9 at 3.)
After completing the interviews with JV1 and JV2, law enforcement found evidence corroborating the statements of the two minors, including, but not limited to, hotel records, "Backpage.com" advertisements featuring JV1, JV2, and FV1 that indicated a telephone number now identified to a phone found in Defendant's car upon his arrest, and surveillance videos showing Defendant with JV1 and JV2 in Washington and Oregon. (Affidavit for a Search Warrant, Dkt. No. 53, Ex. 9.)
Based on this evidence, the Kent Police Department decided to issue a law enforcement awareness bulletin describing Defendant, FV1, and the Cadillac Defendant was known to drive, and instructing law enforcement personnel to contact Detective Brian Lewis of the Kent Police Department upon contact with Defendant or the Cadillac. (Bulletin, Dkt. No. 53, Ex. 10.) On June 5th, 2013, Deputy Ryan Phillips of the Snohomish County Sherriff's Office saw a Cadillac in a restaurant parking lot on Everett Avenue, in Everett, Washington, that matched the description in the Bulletin. After spotting a man, (Defendant), in the driver's seat, and a woman, (FV1), in the passenger seat, who also matched the description on the Bulletin, Deputy Phillips approached the car from the passenger side, where the window was rolled down. (Declaration of Ryan Phillips, Dkt. 53, Ex. 7 at paras. 3, 4.) After a brief conversation to see what Defendant and FV1 were doing (eating food from the restaurant), Deputy Phillips asked to see the occupants' identification. The Defendant began to proclaim that he did not need to provide the Deputy with identification. ( Id. at 4.) The Defendant then said that the Deputy could see his identification, but that he would have to come over to the driver's side to get it. The Defendant then put his left hand down his side. This raised Deputy Phillips' "safety concerns, " and he felt compelled to draw his gun and to call for backup. ( Id. at 4, 5.) When a backup officer arrived and took over the detention of Defendant, Deputy Phillips spoke with FV1. She identified the man in the car as "Slim." ( Id. at 6.)
Deputy Phillips then called Detective Brian Lewis of the Kent Police Department, following the instructions on the Bulletin. ( Id. at 7.) Detective Lewis told Deputy Phillips that he had probable cause to arrest the male driver, "Slim, " based on evidence that he had been involved in sex trafficking two minors. Detective Lewis told Deputy Phillips to have the Cadillac impounded, as it had been used in the alleged offenses. ( Id. ) Detective Lewis asked Deputy Phillips whether he had seen anything in the car while speaking to Defendant and FV1. ( Id. at 8.) Deputy Phillips responded that he had seen three phones in the car, one of which was next to Defendant in the driver's door pocket. ( Id. )
Deputy Phillips avers that he did not go into Defendant's car or search it at any time. ( Id. ) After his call with Detective Lewis, Deputy Phillips placed Defendant in his patrol car. ( Id. at 9.) After the tow truck that Dispatch had sent arrived, the tow truck operator attached Defendant's Cadillac to the tow truck. ( Id. at 9, 10.) Deputy Phillips then drove Defendant, in his patrol car and following behind the truck towing Defendant's car, to the Snohomish County South Precinct. ( Id. at 11.) Upon arrival of the patrol car carrying Deputy Phillips and Defendant and the tow truck carrying Defendant's car, the tow truck driver put the Cadillac in the station's parking bay, and Deputy Phillips placed evidence tape over the doors and initialed the tape. ( Id. ) Deputy Phillips states that at no time did he enter or search the Cadillac, nor knows of anyone else doing so until a search pursuant to a warrant was conducted the following day. ( Id. )
Later that evening, Detective Lewis went up to the Snohomish County South Precinct where Defendant and the Cadillac were in custody. (Declaration of Brian Lewis, Dkt. No. 53, Ex. 8 at para. 3.) Detective Brian Lewis conducted a post- Miranda interview with Defendant, during which Defendant made no mention that a search of his vehicle had occurred at any time. ( Id. ) Detective Lewis states that he did not search the Cadillac during this visit, nor at any other time prior to the issuance of the search warrant the next day. ( Id. at 5.) After his interview with Defendant, Detective Lewis drafted an eighteen-page affidavit for a search warrant consisting mostly of the evidence law enforcement had amassed on Defendant prior to his arrest, in addition to Deputy Phillips' account of the arrest and his observation of three phones (Affidavit for a Search Warrant, Dkt. No. 53, Ex. 9 at 3). (Declaration of Brian Lewis, Dkt. No. 53, Ex. 8 at para. 4.)
A King County Superior Court Judge issued a search warrant the next day, on June 6th, 2013. Pursuant to the warrant, Detective Lewis and another detective traveled up from Kent to the Snohomish South Precinct, went to the Cadillac (still sealed, they state, with the evidence tape that Deputy Phillips had placed and initialed on the vehicle's arrival the day before), took pictures, and searched the Cadillac. ( Id. at para. 5.) Detective Lewis states that he saw three phones in plain sight, including the phone in the driver's door pocket. ( Id. at para. 6.)
Defendant has been in custody since his June 5th, 2013 arrest. (Motion to Suppress, Dkt. No. 49 at 2.) He was originally charged in King County Superior Court on state law charges analogous to those he is currently facing in this Court. ( Id. ) The U.S. Attorney's Office filed a complaint on February 27, 2014, and the state charges were dismissed on March 5, 2014. ( Id. ) Defendant pleads Not Guilty.
II. DEFENDANT'S MOTION TO COMPEL PRODUCTION OF BRADY MATERIALS
A. The Brady Standard
A criminal defendant's due process rights obligate the prosecution to disclose information that is favorable to the defendant and that is "material either to guilt or to punishment." Brady v. Maryland, 373 U.S. 83, 87 (1963). For the Government's Brady obligations to attach, the information at question must be in the knowing possession (actual or constructive) of the Government, and such information must be material to exculpating the defendant.
Possession. The Government is only required to disclose information to the defense "[i]f [the] federal prosecutor has knowledge of and access to exculpatory information as defined in Brady. " United States v. Bryan, 868 F.2d 1032, 1037 (9th Cir. 1989). See also United States v. Beers, 189 F.3d 1297, 1304 (10th Cir. 1999) ("The prosecution must only reveal information that it had in its possession or knowledge - whether actual or constructive."). The Ninth Circuit has held that the "prosecutor will be deemed to have knowledge of and access to anything in the possession, custody or control of any federal agency participating in the same investigation of the defendant." Bryan, 868 F.2d at 1036. As the Government correctly points out in its Response to Defendant's Motion to Compel, Brady does not impose on federal prosecutors the obligation to obtain and disclose information that is not already in the actual or constructive possession of the Government, but rather in the hands of non-federal-agency third parties.
Materiality. Defense correctly states that favorable evidence for Brady purposes includes both exculpatory and impeachment evidence. See Giglio v. United States, 405 U.S. 150, 154 (1972); United States v. Gordon, 844 F.2d 1397, 1403 (9th Cir. 1988). But mere "favorableness" to the defendant is not enough to qualify for Brady protections - the information must also be material. As the Defense correctly states, evidence "is material as long as there is a strong indication that it will play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal." United States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993) (emphasis added). Thus, favorableness must be evaluated in the light of utility to the defendant in preparation for or at trial.
It is important to note that courts have generally accepted both federal prosecutors' good faith averments that the information they have is not exculpatory, and that certain exculpatory evidence is not in their possession. This does not contradict the Defense's contentions that if evidence is arguably exculpatory, it is improper for a prosecutor to unilaterally withhold it on the grounds that it is not truly useful. ( See Defendant's Motion to Compel, Dkt. No. 48 at 7.) But as the U.S. Supreme Court explained in a case similarly involving Brady disclosures and the confidential information of the alleged minor victims:
[T]he Pennsylvania Supreme Court... apparently concluded that whenever a defendant alleges that protected evidence might be material, the appropriate method of assessing this claim is to grant full access to the disputed information, regardless of the State's interest in confidentiality. We cannot agree. A defendant's right to discover exculpatory evidence does not include the unsupervised authority to search through the Commonwealth's files. Although the eye of an advocate may be helpful to a defendant in ferreting out information, this Court has never held-even in the absence of a statute restricting disclosure-that a defendant alone may make the determination as to the materiality of the information. Settled practice is to the contrary. In the typical case where a defendant makes only a general request for exculpatory material under Brady, it is the State that decides which information must be disclosed. Unless defense counsel becomes aware that other [specific, actually in existence, and possessed by the government] exculpatory evidence was withheld and brings it to the court's attention, the prosecutor's decision on disclosure is final. Defense counsel has no constitutional right to conduct his own search of the State's files to argue relevance. There is no general constitutional right to discovery in a criminal case, and Brady did not create one.
Pennsylvania v. Ritchie, 480 U.S. 39, 59-60 (1987) (internal citations omitted) (emphasis added).
Bearing in mind the body of precedent by which this Court is bound, we now turn to ...