United States District Court, S.D. Mississippi, Northern Division
JOSEPH GERHART, et al. PLAINTIFFS
RANKIN COUNTY, et al. DEFENDANTS
ORDER GRANTING DEFENDANTS' MOTION IN
T. WINGATE UNITED STATES DISTRICT COURT JUDGE.
THIS COURT is the defendants' Motion in Limine
[Docket no. 215]. Plaintiffs oppose said
motion. This court finds, for the reasons set forth below,
that defendants' motion is well-taken and should be
ask, by their motion, that this court exclude two items of
evidence: a confidential informant's (hereinafter
referred to as “CI”) audio and video recording;
and an internal affairs investigative report drafted by
Sergeant Archie Bennett (hereinafter referred to as “Sgt.
Bennett”) of the Pearl, Mississippi, Police Department
(hereinafter referred to as “Pearl PD”).
CI AUDIO-VIDEO RECORDING
say that the CI audio-video recording should be excluded
because it is inadmissible hearsay and more prejudicial than
probative. Plaintiffs disagree with defendants' hearsay
argument stating that Rule 803 of the Federal Rules of
Evidence allows the introduction of said recordings.
Plaintiffs, however, do not answer defendants' argument
that the CI audio-video recording is more prejudicial than
seek to exclude a statement contained in an audio-video
recording made during the course of a buy-bust operation
wherein a CI carried a purse containing a camera. The CI
attempted to purchase some illicit narcotics and the seller
tried forcing her to use some of the narcotics while in the
home. The CI refused and noticed some weapons in the house
and gave the “trouble” signal to the team of law
enforcement agents outside of the residence. As a result of
that signal, the law enforcement team breached the home where
the CI was, with the exception of three agents: Officer
Johnny Barnes of the Pearl Police Department; Deputy Brett
McAlpin of the Rankin County, Mississippi, Sheriff's
Office; and Agent Brad McClendon of the Mississippi Bureau of
Narcotics. Barnes, McAlpin and McClendon went to the wrong
house - the Gerhart home - several doors down from the target
residence and made entry to the home, giving rise to this
lawsuit. After they realized their error, they left the
Gerhart's home and one of the officers, (plaintiffs claim
McAlpin) supposedly made the statement - captured on the
CI's audio recorder - that defendants now seek to
exclude. The statement, found at [Docket no. 215-1, filed
conventionally] of the recording, is allegedly heard to say:
“you're going to sure enough have to take care of
that”. This court says “allegedly”, because
the alleged statement is not clear to all listeners.
801 of the Federal Rules of Evidence defines hearsay:
(a) Statement. “Statement” means a person's
oral assertion, written assertion, or nonverbal conduct, if
the person intended it as an assertion.
(b) Declarant. “Declarant” means the person who
made the statement.
(c) Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying at the
current trial or hearing; and
(2) a party offers in evidence to prove the truth of the
matter asserted in the statement.
(d) Statements That Are Not Hearsay. A statement that meets
the following conditions is not hearsay:
(1) A Declarant-Witness's Prior Statement. The declarant
testifies and is subject to cross-examination about a prior
statement, and the statement:
(A) is inconsistent with the declarant's testimony and
was given under penalty of perjury at a trial, hearing, or
other proceeding or in a deposition;
(B) is consistent with the declarant's testimony and is
(i) to rebut an express or implied charge that the declarant
recently fabricated it or acted from a recent improper
influence or motive in so testifying; or
(ii) to rehabilitate the declarant's credibility as a
witness when attacked on another ground; or
(C) identifies a person as someone the declarant perceived
(2) An Opposing Party's Statement. The statement is
offered against an opposing party and:
(A) was made by the party in an individual or representative
(B) is one the party manifested that it adopted or believed
to be true;
(C) was made by a person whom the party authorized to make a
statement on the subject;
(D) was made by the party's agent or employee on a matter
within the scope of that relationship and while it existed;
(E) was made by the party's coconspirator during and in
furtherance of the conspiracy.
The statement must be considered but does not by itself
establish the declarant's authority under (C); the
existence or scope of the relationship under (D); or the
existence of the conspiracy or participation in it under (E).
Fed. R. Evid. 801.
general hearsay exclusionary rule is subject to various
exceptions contained within the Federal Rules of Evidence.
Rule 803 provides multiple exceptions regardless of the
availability of the witness. This court will not address all
exceptions contained within Rule 803 because plaintiffs have
argued that the audio taped statement satisfies at least one
of three exceptions: a present sense impression; an excited
utterance; and/or a record of a regularly conducted
Present Sense Impression
cite no case authority to support the proposition that a
hidden camera video/audio recording made by a confidential
informant during a buy-bust operation is a present sense
impression. A present sense impression, as defined by Rule
803(1) involves a two (2) part inquiry by this court: does
the statement describe or explain a startling event or
condition; and was the statement made while or immediately
after the declarant perceived it.
party disputes that the statement relates to an event where
law enforcement entered the wrong house during an emergent
situation; but, the statement does not “explain the
event.” The statement, instead, appears to be the
contemplation of some desired future event, a contemplation
borne of a measure of reflection occurring after the breach
of the house.
though, argue that the recording was made contemporaneous or
immediately after the event in question. Plaintiffs rely upon
the recording itself as the basis for its admissibility,
having failed to provide a human sponsor.
point to the absence of testimony or evidence produced during
discovery that would indicate who the declarant was. This
court must be cautious in allowing a statement in as a
present sense impression where the declarant is unidentified.
See Miller v. Crown Amusements, Inc., 821 F.Supp.
703 (S.D. Ga. June 23, 2008) (Citing Fed.R.Evid. 803(1),
Advisory Committee's Note); See also Navarette v.
California, 572 U.S. 393, 408, 134 S.Ct. 1683, 1694, 188
L.Ed.2d 680 (2014) (Quoting 2 McCormick 368, 372) (“A
leading treatise reports that ‘the courts have been
reluctant to admit such statements, principally because of
uncertainty that foundational requirements, including the
impact of the event on the declarant, have been
herein, at present, ask this court to surmise who the
declarant might be. This court is aware that the exceptions
under Rule 803 do not require the declarant to be available
before the admission of the statement. Still, this court is
not comfortable with an anonymous declarant who may not be
able to lay a competent foundation for the recording's
admissibility. Further, this court does not know
“who” in the statement is the subject of the
nebulous wishful involvement.
court is not prepared to ignore the requirement of
trustworthiness underlying the hearsay exceptions of the
Federal Rules of Evidence. The plaintiffs have not presented
any competent evidence to this court answering the above
questions. Plaintiffs' conjecture alone of the potential
answers is not enough for this court. Accordingly, this court
grants defendants' hearsay objection.
further claim that the audio-video recording qualifies as an
excited utterance under Rule 803 of the Federal Rules of
Evidence. An excited utterance is “[a] statement
relating to a startling event or condition, made while the