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United States of America v. James Robinson

April 13, 2012

UNITED STATES OF AMERICA
v.
JAMES ROBINSON



The opinion of the court was delivered by: DuBOIS, J.

MEMORANDUM

I. INTRODUCTION

Defendant James Robinson is charged by Superseding Indictment with possession with intent to distribute cocaine base ("crack") (referred to as "crack cocaine"). Presently before the Court is defendant's Motion to Dismiss Indictment ("Trombetta Motion"*fn1 ), in which he argues that the government improperly destroyed the recording of the 911 call that led to his arrest. Following a hearing on April 11, 2012, the Court issued an oral Order denying defendant's motion. This Memorandum amplifies the bases for the Court's oral Order denying defendant's Trombetta Motion.

II. BACKGROUND

A detailed factual and procedural history of this case is set forth in the Court's prior opinions. See United States v. Robinson, Cr. no. 09-473, 2012 WL 987396 (E.D. Pa. Mar. 23, 2012) (denying motion to dismiss on speedy trial grounds and affirming and amending opinion denying motion to suppress); United States v. Robinson, No. 09-cr-473, 2010 WL 4181736 (E.D. Pa. Oct. 25, 2010) (denying motion to suppress). This Memorandum recounts only the facts essential to resolving defendant's Trombetta motion.

Based on the evidence presented at the October 8, 2010, hearing on the Motion to Suppress, the Court summarized the events leading to defendant's arrest as follows:

At approximately 1:45 p.m. on February 22, 2009, Officer James Robertson of the Philadelphia Police Department received a radio call based on an anonymous 911 call reporting an assault of a pregnant female by a light-complexioned black male wearing a tan shirt and blue pants at the intersection of 27th Street and Cecil B. Moore Avenue in North Philadelphia. Officer Robertson drove his patrol car to the intersection, arriving approximately thirty seconds after receiving the radio call. As he approached the intersection, Officer Robertson observed the defendant standing at the southwest corner of the intersection dressed in a tan shirt and blue pants. He did not observe a pregnant woman in the vicinity.

Robinson, 2010 WL 4181736, at *1 (transcript citations omitted). Officer Robertson approached defendant and identified himself, observing that defendant was "sweating despite being dressed lightly for the cold weather." Id. After defendant "refused to provide the officer with his name and stated that he did not have any identification," Officer Robertson patted defendant down to check him for weapons. Id. During the pat-down, Officer Robertson felt a bulge that he believed to be packets of narcotics. Id. He then recovered packets containing crack cocaine from defendant's left front pocket. Id. The Court concluded that the seizure of the crack cocaine was lawful, see Robinson, 2010 WL 4181736, and reaffirmed that conclusion in its Memorandum and Order dated March 23, 2012, see Robinson, 2012 WL 987396.

The recording of the anonymous 911 call is the subject of defendant's Trombetta motion. The government concedes that the recording was destroyed thirty days after the call, but it argues that the destruction was pursuant to standard practice and that defendant has been provided with a Computer-Aided Dispatch report ("CAD Report") containing information about the call and the police response. (Gov't's Resp. Def.'s Mot. Dismiss Indictment ("Gov't Resp.") 2.) Defendant avers that the recording of the anonymous 911 call "may have been exculpatory or otherwise valuable to his defense" and that its destruction violated his due process rights. (Trombetta Mot. 2.) He also asserts that the CAD Report did not accurately reflect the contents of the call. (See, e.g., April 11, 2012, Hr'g Tr. ("4/11/12 Tr.") 3 (argument that the substance of the 911 call "may in fact not be what the Policeman said it was")*fn2 .) Defendant requested that the Court hold a hearing "to determine the reason for the destruction of the recording," (Mem. Supp. Trombetta Mot. 4), and the government did not oppose this request (Gov't Resp. 1).

The Court held a hearing on the Trombetta Motion on April 11, 2012. The government presented the testimony of Carmen Soriano, a dispatcher who had worked with the Philadelphia Police Department ("Department") for twenty-two years. (4/11/12 Tr. 13.) Ms. Soriano testified that she had experience answering 911 calls, and her primary responsibility at the time of the hearing was preparing audio recordings in response to requests. (Id. at 13, 17.)

According to Ms. Soriano's testimony, the Department organizes 911 calls and the related records by "incident." (Id. at 14.) Each incident is assigned an identification number. (Id. at 33.) When the Department receives a 911 call, the general procedure is that the dispatcher who answers the call takes information from the caller and types that information into a computer. (Id. at 14--15, 15--17, 38.) The computer entries are made simultaneously with the call. (Id. at 37.) The computer relays the information to a "divisional console" at which a different operator is stationed. (Id. at 14--15.) The divisional consoles to which the information is relayed correspond to the division in which the incident is occurring-for example, the Department's North-Central Division is comprised of two subunits, Districts Twenty-Two and Twenty-Three (Id. at 18.) The operator at the divisional console relays the information to police officers assigned to those districts, who respond based on their availability. (Id. at 41--42.) The divisional operator then makes further computer entries regarding the incident based on the officers' response, such as which police cars respond. (Id. at 31--32.) The computer entries made regarding a specific incident are all linked to that incident number, and they all record the time at which they were made and which operator made them. (Id. at 33--34, 40.)

Pursuant to Department's Police Radio Directive ("Directive Number Six"), which is dated March 12, 2004, and has been in effect at all times relevant to this case, the Department retains recordings of 911 calls for a thirty-day period and destroys them thereafter. (Id. at 23--31; Phila. Police Dep't Directive 6, Gov't Exs. 2 & 2A, at 11--12.) During that thirty-day period, the government or a defense attorney can request a copy of the recording. (4/11/12 Tr. 24.) Also pursuant to Directive Number Six, the Department retains the computer data from which a CAD report can be prepared for approximately five years. (4/11/12 Tr. 25--26; Phila. Police Dep't Directive 6 at 11--12.) CAD reports are not prepared until a request is made. (4/11/12 Tr. at 34.) When a CAD report is requested, the computer prepares the report by aggregating all of the entries related to a specific incident number. (Id. at 33--34.)

The recording of the 911 call in this case is presently unavailable. Ms. Soriano testified that the Department logs all requests for recordings of 911 calls, regardless of whether they are filed before or after the thirty-day retention period. (Id. at 25.) There were no requests for a copy of the recording within the thirty-day retention period, (id. at 24--25), and the recording was presumably destroyed after expiration of that period. Ms. Soriano further stated that she had searched the Department's records and determined that no one ever requested the audio recording for the February 22, 2009, incident involving defendant. (Id. at 24--25.)

Ms. Soriano also explained the entries on the CAD Report in this case, which has incident number 0923008395. (CAD Report, Gov't Ex. 1, at 1.) The 911 call was received at 1:45:19 P.M. on February 22, 2009. (4/11/12 Tr. 16--17.) In the "Remarks" section, the CAD Report states: "ON CBM . . . BM LT COMPLEX . . TAN SHRT . . BLU JNS . . . ASSAULTING PREG FEM." (CAD Report 1.) According to Ms. Soriano, this means that the 911 caller informed the dispatcher that: "on Cecil B. Moore [Avenue], a black male light-complected with a tan shirt and blue jeans, was assaulting a pregnant female." (4/11/12 Tr. 18.) Ms. Soriano further explained that the entries under "Event Chronology" beginning with "DE" refer to "Dispatched, En Route" and correspond to the police cars and officers responding to the incident. (Id. at 19, 21.) There is an entry for patrol car 238 that contains Officer Robertson's name. (CAD Report 1.) Another "Event ...


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