                                                                                          September 18 2012


                                          DA 11-0411

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2012 MT 210N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

JOSHUA MITCHELL SAKSA,

              Defendant and Appellant.



APPEAL FROM:            District Court of the First Judicial District,
                        In and For the County of Lewis and Clark, Cause No. CDC 2009-33
                        Honorable Kathy Seeley, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Wade Zolynski, Chief Appellate Defender; Garrett R. Norcott, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

                        Steve Bullock, Montana Attorney General; C. Mark Fowler, Assistant
                        Attorney General, Helena, Montana

                        Leo J. Gallagher, Lewis and Clark County Attorney, Helena, Montana


                                                    Submitted on Briefs: August 8, 2012

                                                               Decided: September 18, 2012


Filed:

                        __________________________________________
                                          Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not serve

as precedent. Its case title, cause number, and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2     Appellant Joshua Mitchell Saksa (Saksa) appeals the District Court’s order that denied

his motion to dismiss based upon his allegation that the State intentionally had destroyed

exculpatory evidence. We affirm.

¶3     Lewis and Clark County Sheriff’s Deputy Sam Mahlum (Mahlum) obtained a search

warrant for Saksa’s apartment. Mahlum sought the search warrant to find cash that a dealer-

turned-confidential informant allegedly had used to purchase marijuana from Saksa.

Mahlum and Deputy Dan O’Malley (O’Malley) recorded two interviews with Saksa on the

day that they executed the search warrant.

¶4     Mahlum and O’Malley first interviewed Saksa in an unmarked police car outside

Saksa’s apartment. This interview focused upon Saksa’s review of the search warrant.

Mahlum eventually advised Saksa of his rights pursuant to Miranda v. Arizona, 384 U.S. 436

(1966). Saksa continued to speak to Mahlum after acknowledging receipt of his Miranda

warning. Mahlum, O’Malley, and Saksa entered Saksa’s apartment after the interview so

that the officers could execute the search warrant. Saksa led Mahlum straight to the cash.

¶5     Mahlum began recording a second interview after Saksa showed him the cash.

Mahlum asked Saksa to sign a receipt for the cash. During this exchange, Saksa stated:

“Well, I’m not going to deny it with you guys. No, I have to talk to my lawyer.” Mahlum
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then questioned Saksa on medical marijuana and drug dealing. Neither party made further

mention of Saksa’s remark about talking to his lawyer.

¶6     The State charged Saksa with two felony counts of drug-related charges. Saksa

obtained the CD version of his interview with Mahlum during the discovery process.

Saksa’s review of the CD led him to conclude that five minutes of the interview in his

apartment were missing. Saksa based his claims on his comparison of Mahlum’s time

entries on the CD version, which indicated the interview had taken 32 minutes, with the

actual duration of the CD, which took only 27 minutes. The time discrepancy led Saksa to

request an opportunity to examine the original digital file. The State informed Saksa,

however, that Mahlum had transferred the original digital file from his digital recorder to his

computer. Mahlum then had copied the file to a CD and deleted the digital file from his

computer. This practice matched his usual method of preserving recorded evidence.

¶7     Saksa filed a motion to suppress the statements that he had made to Mahlum during

the interviews. Saksa claimed that he twice had requested a lawyer -- once when he and

Mahlum first had entered the apartment and later as depicted on the recording of the

interview. Mahlum could not remember Saksa having requested a lawyer other than as

depicted on the recording. O’Malley testified that he had heard no request from Saksa for a

lawyer. Saksa also questioned the order of the discussions on the recordings. The District

Court found Saksa’s testimony not to be credible regarding the order of the discussions.

¶8     James Holmes, a certified computer examiner, testified that it was easy to alter or

manipulate audio files. Holmes explained the importance of preserving digital files due to

the fact that more information can be obtained from the computer than from the CD. Holmes
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testified that he could analyze the metadata from the original digital file to determine if there

had been any modifications. Holmes could not determine whether the recording had been

altered based simply on the CD.

¶9     The District Court noted that a discrepancy existed in the times announced by

Mahlum on the recording of the CD version of interviews. Mahlum explained that the

discrepancy likely had occurred due to his having used two different clocks to announce the

beginning and ending times of the recordings. Mahlum testified that he had not altered the

recordings during the copying process. Both Mahlum and O’Malley testified that the

recordings depicted accurately what had occurred. The District Court denied the motion

based upon Saksa’s failure to demonstrate that Mahlum had deleted any portion of the

interview. Saksa appeals.

¶10    Saksa argues that Mahlum’s alleged destruction of the original digital file prevented

him from developing evidence that could corroborate his claim that he had requested an

attorney at the start of the second interview. We review a district court’s ruling on a motion

to suppress to determine whether the court’s findings of fact are clearly erroneous and

whether the court correctly interpreted and applied the law to these findings. State v.

Spaulding, 2011 MT 204, ¶ 13, 361 Mont. 445, 259 P.3d 793.

¶11    We have determined to decide this case pursuant to Section I, Paragraph 3(d), of our

1996 Internal Operating Rules, as amended in 2006, that provide for memorandum opinions.

It is manifest on the face of the briefs and the record before us that nothing indicates that the

District Court’s findings of fact were clearly erroneous and the District Court correctly

applied the law to these findings. Spaulding, ¶ 13. The District Court determined that Saksa
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had presented no credible evidence that “the recordings were in fact altered.” Both Mahlum

and O’Malley testified that the recordings depicted accurately what had happened during the

conversations with Saksa. The District Court specifically found Saksa’s testimony not to be

credible regarding his claim that the recordings depicted events out of the progression in

which they had taken place.

¶12    Affirmed.

                                                   /S/ BRIAN MORRIS

We Concur:

/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ MICHAEL E WHEAT
/S/ JIM RICE



Justice James C. Nelson concurs.

¶13    On the facts of this case I concur with the Court’s Opinion. That said, I suggest

however, that a prosecutorial or law enforcement agency that does not have protocols in

place to preserve the metadata of digital audio, video and documentary evidence, is courting

disaster. While this Court has not addressed the issue yet, metadata is discoverable in the

federal courts. See United States v. Rubin/Chambers, Dunhill Ins. Servs., 825 F. Supp. 2d

451 (S.D.N.Y. 2011). In my view, metadata would, likewise, be discoverable under § 46-15-

322, MCA, Montana’s criminal discovery rules, especially where such information is

arguably exculpatory. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). Some

offenses are, by their nature, heavily dependent upon digital evidence. I suggest that the rule

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will eventually be that the preservation of digital evidence includes the preservation of the

associated metadata. To the extent that they have not already done so, prosecutors and law

enforcement would be well-advised to proactively prepare and to beat the imposition of this

discovery rule in a criminal case where it actually matters.

¶14    With that caveat, I concur.


                                                  /S/ JAMES C. NELSON




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