United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
Audley Murphy Crable asserts that the government destroyed
exculpatory evidence violating his due process rights under
the Fourteenth Amendment. Specifically, he claims that the
government failed to preserve 75 minutes of video footage
originally recorded by the owner of the store where the
robbery charged in this case occurred. Because of this
alleged violation, Mr. Crable asks the court to dismiss the
Indictment. Doc. 44.
court has held two evidentiary hearings on this destruction
of evidence issue-one on February 23, 2018, and a second one
on March 19, 2018. Then, Mr. Crable filed his Motion to
Dismiss (Doc. 44) and the government filed its Response (Doc.
47). On May 21, 2018, the court heard oral argument on the
motion and then, the parties submitted it to the court for
court now is ready to rule on this destruction of evidence
issue. For the reasons discussed below, the court denies Mr.
Crable's Motion to Dismiss (Doc. 44).
following facts are taken from the evidence presented at the
February 23 and March 19, 2018 hearings.
November 19, 2011 at 6:17 a.m. Central Standard Time,
Mo's Express Convenience Store (“Mo's”),
located at 810 SE 15th Street, Topeka, Kansas, was robbed at
gunpoint by a single suspect. The suspect fired several
rounds at two store clerks, Evette Vice and Kenneth Ray,
during the robbery. Both victims were wounded but they
from the Topeka Police Department (“TPD”)
responded to the scene and Detective George Henley took
charge of the investigation. Corey Brown, co-owner of
Mo's along with Monroe Lockhart,  gave TPD consent to search
the store. Mr. Brown and Mr. Lockhart also owned Hudson
Liquor and Hudson Laundromat together. All three businesses
occupied a strip mall known as Hudson Crossing. Mr. Brown and
Mr. Lockhart maintained a video surveillance system that
monitored the interior and exterior of all three businesses.
The system contained 24 cameras that digitally recorded footage
onto two hard drives (“DVRs”) that the owners
stored in the rear office of Mo's.
viewed footage of the robbery while at the scene. DVR #1
captured video from 16 cameras-14 displaying Mo's
interior and two displaying its exterior. DVR #2 captured
video from eight other cameras that captured the interior and
exterior of both the liquor store and the laundromat. For
unexplained reasons, the time stamp displayed on DVR #1's
footage was one hour ahead of Central Standard Time. So, all
the footage captured on DVR #1 displayed the time of the
robbery as 7:17 a.m.
the footage showed the suspect at the premises before,
during, and after the robbery. The suspect wore a mask and
the image quality was poor. But officers wanted to distribute
images as part of an effort to seek public assistance with
identifying the suspect. So TPD sent the surveillance video
to Corporal Thad Winkelman of the Shawnee County
Sheriff's Office. Cpl. Winkelman was, and still is,
assigned to the Heart of America Regional Computer Forensics
Laboratory (“RCFL”) in Kansas City, Missouri. As
an expert in video forensics, Cpl. Winkelman was tasked to
extract video clips and images from the footage.
morning of November 21, 2011, two days after the robbery,
Det. Karim Hazim, at Det. Henley's request, took custody
of both DVRs and delivered them to RCFL. When he arrived at
Mo's, Det. Hazim met Mr. Lockhart and explained the need
to take the two DVRs to RCFL for analysis. Mr. Lockhart
contacted his security company, who arrived 20 minutes later
to disconnect both DVRs. RCFL took custody of the DVRs at
11:56 a.m. that day.
Extraction of Video Footage
TPD only requested video footage of the robbery itself. Cpl.
Winkelman extracted two clips-one from each DVR. The clip
from DVR #1 was about two minutes long and showed the robbery
inside Mo's. Cpl. Winkelman noted the one-hour time
difference in his notes and initial report. See Def.
Ex. 101 and Pl. Ex. 1. The clip from DVR #2 was about four
minutes long and showed the suspect approaching and leaving
Mo's. On November 22, 2011, Cpl. Winkelman gave TPD these
clips and some still images he had created from them.
then made a second request. It asked Cpl. Winkelman to
capture footage from both DVRs covering the 48 hours leading
up to the robbery. Cpl. Winkelman began fulfilling this
request at the RFCL. But Mr. Lockhart wanted the DVRs
returned to the store so he could use his surveillance
system. Cpl. Winkelman returned the DVRs and set them up in a
locked cage at Mo's where he could continue to extract
footage to satisfy the second request. Cpl. Winkelman set the
extraction devices to capture footage from both DVRs for the
12 hours before the robbery. He testified that once that
footage was extracted, he planned to extract footage during
another 12-hour block-i.e., from 24 to 12 hours
before the robbery. He planned to continue using this
methodology until he had captured footage from the 48 hours
leading up to the robbery, as TPD had
the on-site extraction allowed the surveillance system to
monitor the premises, the extraction process would not allow
Mr. Lockhart to view the surveillance footage remotely.
According to Cpl. Winkelman's testimony, Mr. Lockhart
wanted to be able to view the footage from his home computer
as he had before the robbery. But the extraction process
prevented remote viewing. So, Mr. Lockhart withdrew the
consent he had given to permit extraction. And Cpl. Winkelman
discontinued extraction. Some extraction already had
occurred, but by the time Mr. Lockhart withdrew his consent,
the footage from DVR #1 ended 75 minutes before the robbery.
This means that there is no footage from the 16 interior
cameras at Mo's for the 75 minutes before the