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Gerhart v. Rankin County

United States District Court, S.D. Mississippi, Northern Division

September 29, 2018




         BEFORE 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 granted.

         Defendants 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[1] (hereinafter referred to as “Sgt. Bennett”) of the Pearl, Mississippi, Police Department (hereinafter referred to as “Pearl PD”).


         Defendants 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 probative.

         Defendants 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.

         Rule 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 offered:
(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 earlier.
(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 capacity;
(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; or
(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.

         The 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 activity.[2]

         A. Present Sense Impression

         Plaintiffs 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.

         Neither 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.

         Plaintiffs, 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.

         Defendants 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[3]); 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 satisfied.'”).

         Plaintiffs 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.

         This 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.

         B. Excited Utterance

         Plaintiffs 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 ...

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