Friday’s federal appellate cases; 2d Cir. dodges question of Brady’s application to suppression motions

Officers questioned the defendant during an apparently illegal entry, and the district court erred in not conducting a full hearing. Defendant also raised the question of whether Brady v. Maryland applied to suppression motions. The court noted that other circuits have, and leaves the question open, directly giving the government the opportunity to moot the question. United States v. Nelson, 193 Fed. Appx. 47 (2d Cir. August 10, 2006) (unpublished):

Nelson urges us to find that the disclosure requirements of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), apply to pre-trial suppression motions, and that the prosecution’s failure to turn over certain material (including evidence that the police officer who questioned him, and presumably will testify and be subject to impeachment at the suppression hearing, lied about securing consent to search in another case) is an independent ground for remanding. Whether Brady and its progeny require disclosures in advance of pre-trial hearings is an open question in this circuit. In cases that pivot on the outcome of the suppression hearing, such as this one, it seems clear that postponing disclosure until after that hearing will prevent the defense from having key information “no later than the point at which a reasonable probability will exist that the outcome would have been different if an earlier disclosure had been made.” United States v. Coppa, 267 F.3d 132, 142 (2d Cir. 2001); see id. at 145 n.9 (“Brady disclosures must be made in sufficient time for their effective use.”). On the other hand, as the Government observes, its obligation has been formulated as a requirement to disclose only that which “is material either to guilt or to punishment.” Brady, 373 U.S. at 87; but see United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985) (Brady applies where defendant can show “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different”) (emphasis added). The only two circuits to have faced the question squarely have determined that Brady does apply in this context. See United States v. Barton, 995 F.2d 931, 935 (9th Cir. 1993); Smith v. Black, 904 F.2d 950, 965-66 (5th Cir. 1990), vacated on other grounds, 503 U.S. 930, 112 S. Ct. 1463, 117 L. Ed. 2d 609 (1992). Other circuits have expressed some doubts, albeit in dicta. See United States v. Stott, 245 F.3d 890, 902 (7th Cir. 2001); United States v. Bowie, 339 U.S. App. D.C. 158, 198 F.3d 905, 912 (D.C. Cir. 1999); United States v. Williams, 10 F.3d 1070, 1077 (4th Cir. 1993). In light of our decision to remand for an evidentiary hearing, we decline to address this question, which will be mooted if the Government, in advance of the hearing, turns over any material not already given to the defense in advance of the trial that may bear on the outcome of the suppression hearing.

Officers had an independent source for information that led to issuance of search warrant. Excluding from the affidavit the allegedly illegally obtained information still showed PC. United States v. Saechao, 2006 U.S. App. LEXIS 20951 (9th Cir. August 16, 2006) (unpublished).*

Officers had PC to arrest the plaintiff. The fact that he turned out to be not guilty is not pertinent. Mack v. City of Abilene, 461 F.3d 547 (5th Cir. August 16, 2006):

We cannot conclude that Appellant’s arrest was unconstitutional. “The Constitution does not guarantee that only the guilty will be arrested.” Baker v. McCollan, 443 U.S. 137, 145, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979).