STATE OF NEW JERSEY VS. WILLIAM GRAHAM, IIIÂ (15-01-0023, GLOUCESTER COUNTY AND STATEWIDE), A-4776-15T1

Background

On July 2, 2014 Woodbury police impounded Graham's car in a locked rear garage behind the police station; the station (and exterior of the garage) was under 24-hour video surveillance but there was no camera inside the garage. The ignition key was secured in an evidence mailbox.
A search warrant for the vehicle was obtained the next day; the subsequent search recovered heroin and Graham was later charged. Graham alleged police planted the drugs while the car was impounded.
Graham twice requested the garage surveillance videotape; the State replied no footage was available and later provided a report stating repeated, unsuccessful attempts to copy the footage because of issues with the (described-as “antiquated”) system that automatically relooped recordings every ~2 months.
At a discovery hearing Chief Ryan testified there was no written policy specifically requiring preservation of garage video, but acknowledged a practice of preserving lobby video (same system) for internal investigations and that video should be preserved when a planting allegation is made.
The trial court found the police acted in bad faith by failing to preserve the video and, as a discovery sanction, suppressed the evidence seized from the vehicle. The State appealed.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Graham)	Held
Whether destruction/unavailability of the exterior garage video violated due process/Brady	System malfunction and automatic reloop made loss inadvertent; no bad faith; no written preservation policy	Video was potentially exculpatory and should have been preserved once planting allegation was made; loss violates due process/Brady	No due process/Brady violation. Video was at best potentially useful (not apparently exculpatory) and defendant failed to prove bad faith.
Standard for bad faith when potentially useful evidence is lost	Loss from technical problems or routine relooping is not bad faith	Failure to follow department practice and preserve video shows bad faith or egregious carelessness	Bad faith not established: testimony showed no malice, no deliberate destruction, and judge’s finding of a “mistake” does not meet bad-faith standard.
Whether the trial court could impose suppression of physical evidence as a discovery sanction	Suppression was an inappropriate remedy for the discovery violation given the unchallenged warrant and lack of bad faith	Suppression appropriate to remedy failure to preserve and produce potentially exculpatory evidence	Suppression of evidence obtained under an unchallenged warrant is an inappropriate sanction here.
Appropriate remedy for the State’s discovery failure to produce the requested video	If sanction required, less severe measures could be imposed	Defendant sought severe sanction (suppression)	Remanded: court should, on request, give an adverse-inference jury instruction per State v. Dabas rather than suppress evidence.

Key Cases Cited

Brady v. Maryland, 373 U.S. 83 (1963) (prosecutor must disclose evidence favorable to accused)
Trombetta v. California, 467 U.S. 479 (1984) (lost evidence violates due process only if it had apparent exculpatory value and defendant cannot obtain comparable evidence)
Arizona v. Youngblood, 488 U.S. 51 (1988) (if evidence is only potentially useful, defendant must show bad faith preservation failure)
Strickler v. Greene, 527 U.S. 263 (1999) (materiality standard: reasonable probability outcome would differ)
United States v. Bagley, 473 U.S. 667 (1985) (definition of materiality for nondisclosed evidence)
Crane v. Kentucky, 476 U.S. 683 (1986) (right to present a complete defense)
State v. Dabas, 215 N.J. 114 (2013) (adverse-inference jury instruction appropriate remedy for destroyed discovery)
State v. Gamble, 218 N.J. 412 (2014) (standard of appellate review of suppression rulings)
State v. Kasabucki, 52 N.J. 110 (1968) (presumption of validity for a search warrant)
State v. Reynolds, 124 N.J. 559 (1991) (Brady claim rejected where destroyed tapes had no apparent exculpatory value)
State v. Carter, 185 N.J. Super. 576 (App. Div. 1982) (egregious carelessness may warrant suppression)
State v. Serret, 198 N.J. Super. 21 (App. Div. 1984) (examples of bad faith in preservation context)
State v. Parsons, 341 N.J. Super. 448 (App. Div. 2001) (elements of Brady claim)
George v. City of Newark, 384 N.J. Super. 232 (App. Div. 2006) (distinguishing potentially useful vs. apparently exculpatory evidence)
State v. Mustaro, 411 N.J. Super. 91 (App. Div. 2009) (video evidence may be only potentially useful)
State v. Robertson, 438 N.J. Super. 47 (App. Div. 2014) (analysis of materiality and potential usefulness of lost evidence)