United States v. Tutt, No. 13-cr-20396, 2013 WL 5707791 (E.D. Mich. Oct. 21, 2013)
In this case, the court granted in part Defendant’s Motion for Issuance of a Subpoena Duces Tecum seeking production of the arresting officers’ personnel files and disciplinary records as well as the metadata associated with an arresting officer’s police report. Defendant sought to examine the metadata to confirm the alleged time that the report was written in light of the officer’s claim that he overheard the defendant making incriminating statements to the suspect in the adjoining cell while the officer “simultaneously” drafted his report and memorialized those alleged comments. Defendant denied ever making the statements.
Defendant was charged in a one-count indictment alleging violation of 18 U.S.C. § 922(g)(1); felon in possession of a firearm. As evidence of this crime, the arresting officers alleged that the defendant had been sitting in the back seat of a stolen car under which a firearm was found and was observed “bending over in attempt to conceal an unknown object beneath his seat.” Defendant disputed that he was sitting where the firearm was located. One of the officers further alleged that following the arrest he overheard the defendant making incriminating statements to a suspect in an adjoining cell “and that he simultaneously drafted a police report memorializing Defendant’s statements at or near the time the statements were made.” Defendant denied making the statements.
In the lead up to trial, the defendant learned that one of the officers had previously been named in a lawsuit alleging deliberate indifference to an arrestee and that the court had declined to grant summary judgment for the defendants in that case because of the involved officers’ conflicting accounts of what occurred. The second arresting officer had previously been named in a civil rights suit alleging excessive force. In light of these revelations, and because the Government’s case relied almost entirely on the testimony of these arresting officers, it became clear that credibility would be an issue at trial.
To determine the veracity of the officer’s statement regarding when the report was drafted, Defendant sought the production of metadata related to that report. The court granted his request:
Because McHale’s credibility concerning Defendant’s statements will affect the determination of guilt or innocence, Defendant is entitled to pre-trial disclosure of this metadata to corroborate the officer’s claims. Such metadata is relevant and admissible concerning McHale’s testimony he overheard Defendant making inculpatory statements. Further, the metadata is not otherwise procurable reasonably in advance of trial and counsel requires the information in order to support Defendant’s defense and claim that he never made the incriminating statements as asserted by McHale. Lastly, because the metadata sought does not impact due process considerations in the same manner that personnel and internal disciplinary records do, an in camera inspection with respect to the request for metadata is unnecessary. Therefore, the Court grants Defendant’s Motion for a Rule 17(c) subpoena with respect to his request for the computer records or “metadata” in its entirety.