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United States v. Crable

United States District Court, D. Kansas

June 15, 2018



          Daniel D. Crabtree United States District Judge

         Defendant 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.

         The 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 decision.

         The 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).

         I. Background

         The following facts are taken from the evidence presented at the February 23 and March 19, 2018 hearings.

         A. Robbery

         On 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 survived.

         Officers 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, [1] 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[2] that digitally recorded footage onto two hard drives (“DVRs”) that the owners stored in the rear office of Mo's.

         Police 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.

         Some of 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.

         On the 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.

         B. Extraction of Video Footage

         Initially, 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.

         TPD 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 requested.[3]

         Although 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 robbery.[4] ...

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