CA11: There is no adverse inference as a matter of law from failure to maintain audio of stop

Because the exclusionary rule is a “last resort,” on plain error review, defendant cannot claim error for the failure of the district court to determine that his version of the facts is more credible than the governments. There is no adverse presumption merely from the failure to maintain the audio of the stop and it was lost. [Of course, you can cross examine on it.] United States v. Bishop, 2018 U.S. App. LEXIS 10700 (11th Cir. Apr. 24, 2018):

Second issue:

we should reverse his conviction by adopting a new rule that a police officer’s testimony regarding a traffic stop should be construed against party interest when relevant video or audio evidence — here, the audio to accompany his patrol car’s video — is unavailable due to the officer’s failure to properly maintain the equipment.

. . .

Here, plain error applies because Bishop argues for the first time on appeal that the district court should have applied an adverse presumption due to missing audio when it found that Bishop had voluntarily consented to the officer’s search of his vehicle. Under this kind of rule, Bishop argues that it would be clear error for the district court to credit the officer’s testimony regarding his consent over his own testimony. However, as Bishop concedes, the district court did not err, or even plainly err, in failing to apply an adverse presumption, since current precedent does not mandate it. Because the new rule Bishop advocates is not currently a rule, let alone a clearly established one, the district court did not commit plain error by not applying Bishop’s proposed new rule to his motion to suppress. See Puckett, 556 U.S. at 135.

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