S.D.N.Y.: Losing CI’s cell phone after search was not gov’t bad faith

The defendant can’t show bad faith just because the government lost the cell phone of a CI. Defendant contended that there was exculpatory information or photographs on it but couldn’t define what it was. Negligence is not bad faith. United States v. Kloszewski, 2017 U.S. Dist. LEXIS 72134 (S.D. N.Y. May 11, 2017)*:

Third, Kloszewski has not shown that the Government acted in bad faith by failing to search CC-3’s phone and preserve its contents. Agent Cunningham testified that he did not search CC-3’s phone because it was important to further the investigation not only with respect to Kloszewski, but to other individuals under investigation, and that searching CC-3’s phone might alienate her and disrupt her cooperation. Although this does not explain why the Government did not search her phone during the period in late March when CC-3 was not actively cooperating with the Government, Agent Cunningham testified that at that time, the Government believed it had substantial evidence against Kloszewski, and had shifted the focus of the investigation elsewhere. Agent Cunningham also stated that in hindsight, he wishes that he had searched CC-3’s phone because it likely contained additional incriminating evidence against Kloszewski.

The DEA’s conduct in this case, while arguably negligent, does not amount to bad faith, for there is no evidence that Agent Cunningham or any other Government official acted maliciously or engaged in deliberate misconduct. See Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988) (conduct that “can at worst be described as negligent” does not amount to bad faith). As discussed above, the exculpatory value of the missing evidence remains in dispute, and Kloszewski has not shown that the Government had any incentive to prevent Kloszewski from obtaining it. See Youngblood, 488 U.S. at n.* (“The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.”); In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 93, 148 (2d Cir. 2008) (“We can conclude with confidence that the recordings were not intentionally destroyed based on the fact that the government was itself disadvantaged by the destruction of the tapes.”). Absent a showing of bad faith, Kloszewski’s motion fails.