Opinion
Case No. 13-cr-00717-JST-1
10-21-2014
UNITED STATES OF AMERICA, Plaintiff, v. DAVID CONERLY, Defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S REQUEST FOR THE ISSUANCE OF SUBPOENAS DUCES TECUM
Re: Dkt. No. 75
On October 8, 2014, Defendant David Conerly filed a Motion for the Issuance of a Subpoena Duces Tecum to the Berkeley Police Department ("BPD"). ECF No. 75. Conerly requested that a subpoena issue requiring the BPD to produce three categories of information: (1) "statistics and other evidence regarding the number of arrests in the last year by Berkeley Police Department officers in the six-block radius surrounding the intersection of Oregon Street and Park Street in Berkeley"; (2) BPD's file concerning Conerly's arrest in Case No. 2013-00010403; and (3) "any evidence regarding the Berkeley Police Department's policy and/or training materials on street contact and pursuit of suspects." The United States opposes the request.
In order for the Court to issue a subpoena pursuant to Federal Rule of Criminal Procedure 17(c), the moving party must demonstrate that: "(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general 'fishing expedition.'" United States v. Nixon, 418 U.S. 683, 699-700 (1974) (footnote omitted).
At the hearing on Conerly's motion held October 15, 2014, the Court ruled on the second two categories. Regarding the second request, the United States represented that it had already obtained and produced all of the material from BPD's arrest file. The Court ordered that the Government confirm this representation to the Defendant by October 17, 2014, and a subpoena could issue only if confirmation was not forthcoming. The Court denied the third request from the bench on the ground that Conerly had not met his burden of demonstrating that BPD's policies and training materials were evidentiary and relevant. Id.
As to the first category of information, the Court asked the parties to submit supplemental briefing on the question of whether a Rule 17(c) subpoena could issue in connection with a motion to suppress, rather than a trial. The Court's order was based on the test set forth in Nixon, which requires that a defendant show "the [subpoenaing] party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial. Id. Counsel submitted their supplemental briefs on October 16, 2014.
A review of the supplemental authority submitted by counsel and located by the Court shows that federal courts have frequently issued subpoenas in connection with pre-trial motions to suppress. See United States v. Wheeler, 2:13-CR-00084-APG, 2013 WL 5781731 (D. Nev. Oct. 25, 2013) (authorizing issuance of Rule 17(c) subpoenas in connection with a motion to suppress); United States v. Van Blericom, CR 93-165-FR, 1993 WL 414637 (D. Or. Oct. 8, 1993) (same); United States v. Neal, No. 11-CR-00163-WJM, 2011 WL 3648381 (D. Colo. Aug. 18, 2011) (same). Even in those cases where a district court has denied the issuance of a subpoena, it was because the defendant failed to demonstrate the relevance of the subpoenaed material, and not because the subpoena was to be issued in connection with a pre-trial motion. See, e.g., United States v. Jensen, CR. 08-50031-RHB, 2010 WL 428965 (D.S.D. Feb. 4, 2010). As have other courts, this Court now concludes that a Rule 17(c) subpoena can issue in connection with a motion to suppress.
The Court also finds that the requested materials are relevant and evidentiary. Defendant Conerly asserts without contradiction that the Government will argue that police officers had reasonable suspicion to detain Conerly because they observed him fleeing in a high-crime area. ECF No. 75 at 3; Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (flight in a high-crime area can be basis for reasonable suspicion). In order to justify this assertion, the Government will need to provide evidence that the area where Conerly was detained was, in fact, a high-crime area; Conerly will attempt to show that it was not. If the Berkeley Police Department is in possession of statistical or other information that would shed light on that inquiry, Conerly is entitled to have it.
Accordingly, good cause appearing, the Court now GRANTS IN PART AND DENIES IN PART Conerly's motion for a Rule 17(c) subpoena. A subpoena duces tecum may issue to the Berkeley Police Department for "statistics and other evidence regarding the number of arrests in the last year by Berkeley Police Department officers in the six-block radius surrounding the intersection of Oregon Street and Park Street in Berkeley." The Berkeley Police Department shall be directed to provide materials responsive to the subpoena directly to counsel for the parties without lodging them with the Court. Conerly's remaining requests are denied.
The Government requests that the Court order Conerly to notify the BPD that it does not have to produce the requested documents. ECF No. 82 at 1-2. The Government cites General Order 69, which relates to the production of police personnel records. Police personnel records are not at issue in this motion, and the Government's request is therefore denied.
IT IS SO ORDERED. Dated: October 21, 2014
/s/_________
JON S. TIGAR
United States District Judge