N.D.Ohio: Controlled buys leading to a SW doesn’t require open discovery of everything with the buys

Controlled buys leading to a search warrant don’t enable the defense to get discovery on nearly everything underlying the controlled buys. United States v. Arnold, 2020 U.S. Dist. LEXIS 213800 (N.D. Ohio Nov. 12, 2020):

Defendant’s contention has two parts: 1) the controlled buys justified the warrant which generated the trial evidence against the defendant; and 2) the government could provide the desired items in redacted form, thereby preserving the informant’s privilege of Rovario v. United States, 353 U.S. 53(1957).

Neither of these assertions establishes the requisite materiality to the preparation of a defense.

The first – that the controlled buys provided probable cause for the warrant – is a commonplace attribute of many drug-search warrants. Taken a short step further, the logic of defendant’s rationale would, without regard for Rule 16’s constricted scope, obligate the government, except for clear Rovario material, to disclose everything that led to the decision to obtain a search warrant.

The defendant cites one case, United States v. Lykins, 428 F. App’x 621, 624 (6th Cir. 2011) (citing United States v. Stevens, 985 F.2d 1175, 1180 (2d Cir. 1993)), in support of his “Open Sesame” approach. To determine materiality to preparing a defense, the court looked to “the logical relationship between the information withheld and the issues in the case, as well as the importance of the information in light of the evidence as a whole.” (Emphasis supplied).

Here no connection, much less a logical one, exists between the issues in the case and the statements in the warrant affidavit. That there were two controlled buys (plus some background information about what both informants otherwise knew about the defendant’ activities) has nothing to do with the charge-related issues. Among others, the issue at trial will be whether the evidence the search warrant produced contributes to establishing beyond a reasonable doubt the elements of the crimes the indictment alleges. What the executing officers later found, not what the surveilling officers earlier saw, will be what matters at trial. Likewise, the evidence the search uncovered, not what might have been seen beforehand, is what matters with regard to preparing the defense to those charges and that evidence.

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