Opinion
Criminal Action No. 3:02-CR-243-G
December 3, 2002
MEMORANDUM ORDER
Before the court is the motion of the defendant Bryan Ashlock ("Ashlock") to dismiss the indictment or, in the alternative, to suppress the evidence obtained as a result of a search of his residence. For the reasons stated below, the motion is denied.
I. BACKGROUND
Ashlock was arrested on April 12, 2002. Government's Response to Defendant's Motion to Dismiss Indictment and in the Alternative to Suppress ("Response") at 1. Pursuant to a search warrant, the local police and officers of the Drug Enforcement Administration ("DEN") discovered materials in Ashlock's home allegedly used for the production of methamphetamine. Response at 2-3. Many of the items seized were hazardous or contaminated materials. Response at 3-4; see also Declaration of Tim Cahill ¶ 11 (listing Heet antifreeze, red phosphorus, muriatic acid and acetone as among the materials seized), attached to Response. According to DEA policy, once hazardous or contaminated materials have been sampled and documented, the materials are destroyed. Response at 4. Pursuant to this policy, the DEA photographed and documented the evidence deemed hazardous and then ordered its destruction. Response at 4; see also Report of Investigation at 3-4 (detailing the items destroyed), attached to Response. The government has provided Ashlock with inventory lists and photographs of the items destroyed. Id. Ashlock now moves to dismiss the indictment or, alternatively, to suppress any evidence stemming from the materials destroyed by the DEA. Motion to Dismiss Indictment and in the Alternative to Suppress Destroyed Evidence and Brief in Support ("Motion") ¶¶ 1-2, 6.
II. ANALYSIS
Ashlock argues that the destruction of these materials violated his due process rights under the Fourteenth Amendment by denying his "constitutionally guaranteed access to evidence." Motion ¶ 1 (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). According to Ashlock, this constitutional violation deprived him of potentially exculpatory evidence and hinders his ability to prepare a defense. Motion ¶¶ 5-7.
In United States v. Thompson, 130 F.3d 676 (5th Cir. 1997), cert. denied, 524 U.S. 920 (1998), the Fifth Circuit set forth a three-prong test to determine whether the government's failure to preserve evidence gives rise to a due process violation. Under this test, Ashlock must show that (1) the government officials acted in bad faith; (2) the evidence is material in showing Ashlock's innocence; and (3) there is no alternative means to demonstrate Ashlock's innocence. See id. at 686; compare Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988) (requiring a defendant to show that the police acted in bad faith in failing to preserve potentially helpful evidence), with Brady v. Maryland, 373 U.S. 83, 87 (1963) (finding a due process violation irrespective of good or bad faith when the government fails to disclose requested exculpatory evidence).
Ashlock has failed to make the showing required by this test. He has not offered any evidence that the DFA acted in bad faith by destroying the hazardous materials seized in his home. See Motion ¶¶ 2-7. Ashlock has not demonstrated how the items destroyed could be potentially exculpatory or even helpful. See id. And Ashlock has not shown how the destruction of the hazardous materials forecloses alternative avenues to proving his innocence. See id. Indeed, the government has provided Ashlock with an inventory and photographic record of the items destroyed. Response at 4; Report of Investigation at 3-4 (detailing the items destroyed), attached to Response; Photographs, attached to Response. Therefore, because Ashlock has not satisfied Thompson's three prong test, the court cannot find that the destruction of hazardous materials seized in Ashlock's home gives rise to a due process violation. See, e.g., Thompson, 130 F.3d at 686. Ashlock's motion to dismiss the indictment or, in the alternative, to suppress the evidence is accordingly DENIED.