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What Is a Harvey / Madden Motion for a Police Audio Tape?

In many cases involving any type of traffic stop, there is a suspicion that police decided to pull over our client well before the alleged Vehicle Code violation took place.  There even may be no Vehicle Code violation involved, something that can be shown by observing the police car’s Mobile Video Audio Recording System (MVARS) tape, if the car was using one and it was operable.

In our experience, such a tape may contain banter between the officers that shows the officer were determined to pull over a specific car somehow, eventually, and may have had some type of bias or motive of revenge against the driver.
When there is no MVARS tape, defendant can ask the judge to order the police department to retain in its possession and preserve as evidence all tape-recorded radio transmissions, phone calls or both for a certain date concerning defendant’s case.  Defendant should give the judge a copy of the police report to show the names of the officers involved in the transmissions and/or phone calls.

If the judge does grant such an order, the judge typically also orders the police to make available the tape recording to defendant’s attorney or investigator to review, usually for 30 days or so.

This request is based on the right of a defendant to obtain copies of tape recordings concerning communications by law enforcement officers involved in a defendant’s arrest.  People v. Madden (1970) 2 Cal.3d 1017; Ojeda v. Superior Court (1970) 12 Cal.App.3d 909; People v. Harvey (1958) 156 Cal.App.2d 516.

Tapes belonging to state agencies must be preserved for at least two years. 64 Ops. Cal. Atty. Gen 435 (1981).  City and county agencies must preserve “recordings of telephone and radio communications maintained by the department or special district” for at least 100 days and must maintain all routine videotapes for one year.  If the recordings are evidence in any pending claim or litigation, they must be preserved through resolution of the litigation or the claim.  Gov’t Code § 26202.6(a); Nelson v. Superior Court (2001) 89 Cal.App.4th 565, 572.  Since many government agencies do not follow these rules, it is important to demand a copy of such a tape as soon as its existence is revealed, or perhaps even in an early, informal discovery request under Penal Code § 1054.5(b) and Brady v. Maryland (1963) 373 U.S. 83, 83 S.Ct. 1194.

When making a motion for such an audio recording, it is good to attach a subpoena duces tecum to the motion.  The declaration or affidavit accompanying the subpoena should include information to help law enforcement locate the tape, i.e. the DR number for the arrest, the date and time of the recording, the names of the officers who received or sent the transmission or were on the phone call.  If the judge signs the order, then the subpoena can be served on the police department with a copy of the judge’s order.

This type of motion should never be discussed prior to it being filed and served, as the prosecutor could speak with law enforcement to find out if such a tape exists at all and “learn that it was accidentally destroyed yesterday.”  Law enforcement could also be tipped off to inadvertently delete the recording or lose the recording.

Instead, a savvy defense attorney will make a rather boilerplate, due diligence informal discovery request which includes, among a list of items requested, the audio recording(s).  If it is not produced initially by the prosecution, defense counsel should immediately file the motion.
Often, the mere filing of the motion can lead to plea bargain negotiations that lead to a resolution of the case on terms agreeable to the client and/or result in the judge pressuring the prosecutor to do his or her best to resolve the case, as the judge would prefer not to involve himself in ordering the production of such a tape from the police.

For more information about discovery issues in criminal cases, please click on the following articles:
  1. Traffic Stop Ruled Improper and Evidence Seized by Police Suppressed When Officer Lacked Reasonable Suspicion to Stop Driver
  2. U.S. Supreme Court Changes California Law Concerning the Legality of a Traffic Stop Based on a Mistake of Law
  3. Good Faith Exception to Officer’s Execution of an Improper Search Warrant Does Not Have Similar Application to an Improper Traffic Stop
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