                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-1127
                               Filed May 13, 2020


STATE OF IOWA,
     Plaintiff-Appellant,

vs.

KARL JERMAINE FLAGG,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, Steven P. Van Marel,

District Associate Judge.



      The State appeals the district court’s suppression ruling. REVERSED AND

REMANDED.




      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellant.

      Martha J. Lucey, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellee.




      Considered by Bower, C.J., and Doyle and Schumacher, JJ.
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BOWER, Chief Judge.

        In this interlocutory appeal, the State challenges a district court order

suppressing evidence of a traffic stop. The Iowa Supreme Court granted the

State’s application for discretionary review and transferred the case to this court.

We find, as did the district court, the traffic stop was valid. The court’s suppression

of evidence as a sanction for erasure of a video by law enforcement was improper.

We therefore reverse and remand for further proceedings.

        I. Background Facts & Proceedings

        At approximately 2:00 a.m. on December 8, 2018, a police officer pulled

Karl Flagg over for stopping his vehicle past the marked stop line.1 The officer’s

vehicle was equipped with a dash-cam, and he wore a body camera. During the

traffic stop, the officer discovered evidence of illegal substances. A discussion

was held concerning Flagg’s cooperation with the Drug Task Force. When Flagg

expressed an interest in working with the task force, Flagg was not arrested.

        Upon returning to the station at the end of his shift, the officer’s body camera

footage was automatically uploaded to a server, where it was preserved. The

vehicle dash-cam video storage equipment was of an older vintage. It was loaded

into the police department’s video-footage system.            The officer logged the

controlled substances into evidence and turned them over for lab analysis on

January 18, 2019. The officer received the report back on March 7.




1   See Iowa Code § 321.322(1) (2018).
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       Because Flagg did not follow through with assisting the task force, the

officer filed a criminal complaint against Flagg in late March. On April 18, Flagg

was charged with two counts of possession of a controlled substance.

       On June 10, Flagg filed a motion to suppress all evidence found during the

traffic stop, claiming the stop constituted an illegal seizure. Flagg further claimed

the State’s failure to preserve the dash-cam video violated his due process rights

by denying him potentially exculpatory evidence.

       At the hearing on the motion to suppress, the officer testified as to the

department’s policy with regard to this older video system as follows:

               Q. Are you familiar with the length of time that the videos are
       preserved for each of the systems? A. I know for [the dash-cam
       system] it’s [ninety] days.
               Q. Is that something that is manually done, as in the video is
       purged after [ninety] days, or is that something set up to do
       automatically? A. Automatically.
               Q. Is there some way to prevent that automatic deletion? A. If
       you were to request some sort of preservation for media.
               Q. And when there’s a preservation of the media, then do they
       burn it to a CD? A. I believe so.
               Q. Who would make the request to preserve media? Are you
       able to do that? A. No.
               Q. In your experience who typically does when that happens?
       A. I believe the county attorneys might do that or—
               Q. You’re not sure? A. Yeah, I’m not sure. I don’t do it.

       On cross-examination, the officer testified:

               Q. So you know how to get ahold of county attorneys; right?
       A. Yes.
               Q. So you’d know how to tell them if you had a case that had
       some evidence that needed to be preserved; right? A. Yes.
               Q. You also could tell your records department that you have
       evidence that needed to be preserved; right? A. Yes.
               Q. You made no efforts to preserve the car video in this case;
       is that correct? A. Correct.
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       The officer testified he stopped Flagg’s vehicle because he “didn’t stop

before that stop sign line, and in fact his vehicle stopped quite a bit a ways past

that line.” Flagg testified he did stop before the stop sign line. The defense argued

the dash-cam video might have provided exculpatory evidence, it might have

established the officer was not credible. Defense counsel argued, “whether it’s in

bad faith or not, the bottom line is that evidence is not being preserved,” and asked

that the court employ a standard different from that enunciated by the United

States Supreme Court in Arizona v. Youngblood, 488 U.S. 51, 57 (1988), and

adopted by the Iowa Supreme Court in State v. Hulbert, 481 N.W.2d 329, 334

(Iowa 1992).

       The court found the officer had probable cause to believe Flagg had violated

a traffic law and, therefore, conducted a valid traffic stop. The court declined to

adopt a standard different than Hulbert, which requires a showing of bad faith on

the part of police when they fail to preserve merely potentially useful evidence.

481 N.W.2d at 334.

       The court specifically found that the dash-cam footage was “only potentially

exculpatory.” The court then further found the failure to preserve the video footage

under the circumstances constituted bad faith and ruled all evidence would be

suppressed.

       The State appeals, claiming the video was not destroyed in bad faith and

the proper remedy is not to suppress the physical evidence discovered during the

traffic stop.
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       II. Standard of Review

       When a suppression ruling is based upon a finding of the deprivation of a

constitutional right, we review the matter de novo. See State v. Coffman, 914

N.W.2d 240, 244 (Iowa 2018). We independently evaluate the totality of the

circumstances as shown by the record. Id. We give deference to the district court’s

fact findings because of its opportunity to assess the credibility of the witnesses,

but we are not bound by those findings. State v. Crawford, 659 N.W.2d 537, 541

(Iowa 2003).

       III. Analysis

       “The intentional destruction of evidence, sometimes discussed as a form of

obstruction of justice, is usually referred to as spoliation. When it is established,

the fact finder may draw the inference that the evidence destroyed was

unfavorable to the party responsible for its spoliation.” State v. Langlet, 283

N.W.2d 330, 333 (Iowa 1979) (footnotes omitted). Here, there is no claim that the

evidence was intentionally destroyed. Flagg only argued that the officer “didn’t

think to preserve the video evidence”—not that he intentionally destroyed it. The

district court agreed, finding the officer did not intentionally destroy the video

evidence or intentionally cause its destruction. Nonetheless, the district court

concluded the officer acted in bad faith in failing to ensure the dash-cam video was

preserved.

       “To prove a due process violation based on destruction of evidence, the

defendant must show (1) a proper defense request for the evidence; (2) that the

evidence was material; and (3) that the evidence would have been significantly

favorable to the defendant.” Hulbert, 481 N.W.2d at 334. “Where the lost evidence
                                           6

is only potentially exculpatory, where by its nature the lost evidence cannot be

evaluated by a fact finder, a due process violation will not be found in the absence

of a showing of bad faith.” State v. Craig, 490 N.W.2d 795, 796–97 (Iowa 1992).

       Here, the district court found that the lost evidence was only potentially

exculpatory. “Failure of the State to preserve potentially useful evidence does not

constitute a denial of due process unless the defendant can show bad faith.” State

v. Atley, 564 N.W.2d 817, 821 (Iowa 1997).2

       In State v. Dulaney, 493 N.W.2d 787, 791 (Iowa 1992), our supreme court

concluded there had been no due process violation where a lab destroyed a

sample “pursuant to its usual procedure.” On our de novo review of the evidence,

we cannot find the routine destruction of the dash-cam video pursuant to

department policy under these circumstances constituted bad faith.

       The district court stated:

       I think what determined—what is determinative here is that the officer
       kept the drugs for testing, but did not request that the body—or that
       the car camera should be preserved. I think that shows bad faith on
       the officer’s part, because I think the officer knew all along this might
       not work out. The whole stop—the whole search was based on the
       stop, which was on the car cam. So I do think there was a bad faith
       action on the officer’s part not to ask that that—to have the video, the
       car camera video, be preserved.

We disagree with the court’s reasoning. Even if one accepts that the “officer knew

this might not work out,” this is a far cry from proving the officer acted in bad faith.

The officer testified he did not have the ability to request the preservation of the



2Under some circumstances, the routine destruction of evidence can constitute
bad faith—for example, when relevant video is deliberately withheld from defense
counsel and investigators before the routine erasure. State v. Hartsfield, 681
N.W.2d 626, 632 (Iowa 2004).
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video, and no evidence of the proper procedure to preserve the video was

presented.

       The defense argued the dash-cam video might have provided exculpatory

evidence, it might have established the officer was not credible. In fact, the district

court specifically found the officer’s testimony was more credible than Flagg’s with

respect to the traffic violation:

       Now going back to the stop itself, I think the officer had probable
       cause to believe that the defendant violated a traffic law. I think of
       the two people that were paying attention to the defendant’s driving
       that night, the officer was paying closer attention than the defendant.
       It’s 2:00 in the morning. I think the officer was watching what cars
       were doing. He was on duty. That was his job to do that. On the
       other hand the defendant just is driving normally, and I think I’d have
       to give credibility to the officer’s testimony that the stop was made
       past the stop line. So I don’t find the stop to be bad.

       We are unaware of any Iowa authority to allow the district court to suppress

all the evidence from the stop after finding the officer credible and the traffic stop

lawful. Under these circumstances, we conclude the district court erred in finding

a due process violation occurred. Because the court found the stop was valid, the

evidence discovered during that stop should not have been suppressed. We

therefore reverse the suppression of the evidence and remand for further

proceedings.

       REVERSED AND REMANDED.
