                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 24 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-30307

              Plaintiff - Appellant,             D.C. No. 2:08-cr-00102-RHW-1

  v.
                                                 MEMORANDUM *
WAYNE D. MCDUFFIE,

              Defendant - Appellee.



UNITED STATES OF AMERICA,                        No. 09-30370

              Plaintiff - Appellant,             D.C. No. 2:08-cr-00102-RHW-1

  v.

WAYNE D. MCDUFFIE,

              Defendant - Appellee.



                  Appeal from the United States District Court
                      for the Eastern District of Washington
                Robert H. Whaley, Senior District Judge, Presiding

                      Argued and Submitted October 14, 2011
                               Seattle, Washington

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: BEEZER and PAEZ, Circuit Judges, and COLLINS,** District Judge.

      The government appeals the district court’s orders granting Defendant

Wayne McDuffie a new trial and suppressing drug-related evidence. We affirm

the grant of a new trial, but reverse the order suppressing evidence.1

      In granting McDuffie a new trial, the district court concluded that the

government violated Brady v. Maryland, 373 U.S. 83 (1963), when it failed to

disclose in a timely manner certain fingerprint evidence. To establish a Brady

violation, a defendant must show that “[t]he evidence at issue [is] favorable to the

accused, either because it is exculpatory, or because it is impeaching; that evidence

[was] suppressed by the State, either willfully or inadvertently; and prejudice . . .

ensued.” United States v. Price, 566 F.3d 900, 907 (9th Cir. 2009) (quoting

Strickler v. Greene, 527 U.S. 263, 281-82 (1999)) (internal quotations omitted).




          **
             The Honorable Raner C. Collins, District Judge for the U.S. District
Court for Arizona, sitting by designation.
      1
             We review de novo the grant or denial of a motion for a new trial
based upon a violation of Brady v. Maryland, 373 U.S. 83 (1963). United States v.
Price, 566 F.3d 900, 907 (9th Cir. 2009). We also review de novo the denial of a
motion to suppress and whether the exclusionary rule applies to a given case.
United States v. Crawford, 372 F.3d 1048, 1053 (9th Cir. 2004) (en banc). The
underlying factual findings are reviewed for clear error. Id.

                                     Page 2 of 5
      The evidence at issue here showed that Detective Barrington’s fingerprint

was on a drug scale, which was found in the Ash Street apartment. This evidence

supported McDuffie’s theory that Barrington sought to frame him in order to

pressure him to cooperate with one of Barrington’s on-going murder

investigations. This evidence was disclosed during trial, despite the fact that the

government learned of it some five days prior to trial.

      The fingerprint evidence is favorable to McDuffie and potentially

impeaching of Barrington, the government’s key witness. Because the

government’s disclosure of this evidence near the end of its own case in chief

prevented McDuffie from presenting his theory of the case in a coherent manner,

the government effectively suppressed it. McDuffie was unable to retain his own

experts in forensics or police procedure, or to do any pre-trial discovery into the

CD scale’s chain of custody. In light of its late disclosure, the evidence was of no

“substantial value” to McDuffie. United States v. Woodley, 9 F.3d 774, 777 (9th

Cir. 1993).

      The government’s failure to disclose this evidence was also prejudicial,

again because it prevented McDuffie from presenting a coherent version of his

theory of the case. See United States v. Bagley, 473 U.S. 667, 683 (1985).

Detective Barrington was the government’s key witness, and had McDuffie been


                                     Page 3 of 5
able to present a coherent theory of evidence tampering, there is a reasonable

probability that the jury would have discredited Barrington and reached a different

conclusion in the case. The prejudicial effect of the government’s late disclosure is

therefore “sufficient to undermine confidence in the outcome of the trial.” Price,

566 F.3d at 911. The district court did not err in granting a new trial on the basis

of the Brady violation.

      McDuffie’s motion to suppress evidence sought to exclude items seized

from searches of McDuffie’s car and Walnut Street apartment. The Supreme Court

recently held in Davis v. United States that “searches conducted in objectively

reasonable reliance on binding appellate precedent are not subject to the

exclusionary rule.” 131 S.Ct. 2419, 2423-24 (2011). The search of McDuffie’s car

after the police had already handcuffed him and placed him in a patrol car clearly

violated Arizona v. Gant, 556 U.S. 332 (2009), which was decided after the search

of McDuffie’s car but while McDuffie’s case was on appeal. The car search,

however, did not violate New York v. Belton, 453 U.S. 454 (1981), which was

binding precedent at the time of the search. Therefore, the search of McDuffie’s

car—although unconstitutional under Gant—does not invoke the exclusionary rule

and the evidence found in his car is admissible.




                                     Page 4 of 5
      The items seized from McDuffie’s Walnut Street apartment, which the

district court deemed “fruit of the poisonous tree” and excluded, are also

admissible. The exclusionary rule’s “sole purpose . . . is to deter future Fourth

Amendment violations.” Davis, 131 S.Ct. at 2426; see also Hudson v. Michigan,

547 U.S. 586, 596-99 (2006) (discussing deterrence as a necessary but not

sufficient condition for applying the exclusionary rule). There is no deterrent

effect when the police are not culpable. See Davis, 131 S.Ct. at 2428-29; see also

United States v. Leon, 468 U.S. 897, 922 (1984). Here, the police obtained a

search warrant on the basis of an affidavit that relied, in part, on the evidence

found in McDuffie’s car, and searched his apartment pursuant to that warrant.

Because the police relied on binding appellate precedent when they seized

evidence from McDuffie’s car, and then properly obtained a warrant before

searching his apartment, there would be no deterrent effect from excluding the

evidence found in the apartment. We therefore reverse the district court’s order

granting McDuffie’s motion to suppress.

      AFFIRMED in part, REVERSED in part.




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