Loss of hard drive images not due process violation without bad faith says Third Circuit

In United States v. Heiser, 2012 U.S. App. LEXIS 6430 (3d Cir. 2012), the Third Circuit upheld a denial of a motion to suppress evidence where the state had not acted in bad faith in the destruction and loss of complete mirror images of Heisner's computer.

The drive was in poor condition when seized, but experts were able to find 495 images of child pornography. A mirror image was made, and a copy of the image was sent to the local police department. Additionally, the images were also placed on a CD. The district court ordered the government to provide a mirror image of the drive to the defense, but the hard drive where the image was stored had crashed. Also, the image that had been sent to local law enforcement was lost. A new image could not be made so a copy of the CD with the images was sent, and the government did not disclose that a mirror image was unavailable until months later. After two years of Heisner's continuances, a forensic data recover business was able to recover 97% of the hard drive's files, including 490 of the 495 images of child pornography.

On appeal, Heisner sought to suppress the evidence from the hard drive, essentially arguing that the other 3% of the drive contained exculpatory evidence. The Third Circuit denied a due process violation existed and held that there was no bad faith on the part of the government.