Mowrey v. Fort Wayne City of et al
OPINION AND ORDER DENYING 82 Supplemental MOTION in Limine No. 10 by Plaintiff Foster Mowrey. Signed by Magistrate Judge Roger B Cosbey on 12/30/2013. (lhc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
CITY OF FORT WAYNE, et al.,
Case No. 1:12-CV-121
OPINION AND ORDER
This matter is before the Court on Plaintiff Foster Mowrey’s supplemental motion in
limine No. 10, seeking to exclude any and all reference to the purported consent given by
Vanessa Moyer to search her apartment on September 1, 2010. (Docket # 82.) For the following
reasons, Mowrey’s supplemental motion in limine will be DENIED.
The thrust of Mowrey’s supplemental motion in limine is that any reference to Ms.
Moyer’s purported consent is excludable because the Defendants failed to produce an executed
written consent form, which had previously been listed in Defendants’ supplemental initial
disclosures. Mowrey argues–without any citation to a statute, rule of evidence, or case–that
Defendants’ failure to produce the consent form prejudices him as he is unable to determine the
authenticity and validity of the consent given; and therefore, no mention of consent should occur.
Put simply, Mowrey’s argument is without merit as the Defendants’ inability to produce
a signed written consent form is not conclusive on whether consent was given by Ms. Moyer.
The Court assumes the reader is familiar with the factual and procedural history and the standard of
analysis for an order in limine. (See Docket # 68.)
Federal Rule of Evidence 1004 explicitly contemplates situations in which the original document
cannot be found, and states “[t]he original is not required, and other evidence of the contents of a
writing . . . is admissible if . . . [a]ll originals are lost or have been destroyed, unless the
proponent lost or destroyed them in bad faith. Walters v. PDI Mgmt. Servs., 1:02-cv-1100, 2004
WL 2137513, at *4 (S.D. Ind. June 14, 2004) (quoting Fed. R. Evid. 1004).
Moreover, in the context of lost or misplaced consent forms, courts have long found that
“[w]hen an executed written consent is lost or destroyed, the [party seeking to introduce its
contents] may introduce secondary evidence that such consent was properly executed.” United
States v. Shaprow, No. Civ-78-260, 1979 WL 1464, at *3 (W.D.N.Y. Sept. 10, 1979); see United
States v. McGaughey, 977 F.2d 1067, 1071 (7th Cir. 1992) (in suit on tax-related debt, court
found that secondary evidence may be introduced, but it must first be demonstrated that the
original document has actually been destroyed or lost); Urban v. United States, No. 03 C 6630,
2005 WL 1819954, at *3 (N.D. Ill. June 9, 2005) (same). Therefore, trustworthy testimony
about the document may be admitted.
Further, because oral consent to search a residence is sufficient, there is no requirement
that the consent be in writing. United States v. Dean, 550 F.3d 626, 630-31 (7th Cir. 2008)
(citing Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973)). Accordingly, credible testimony
that Ms. Moyer gave oral consent (whether or not reduced to writing) is admissible.
Consequently, although the consent form purportedly executed by Ms. Moyer cannot be
located, secondary evidence that she gave consent is admissible at trial. The manner, nature, and
breadth of consent purportedly given by Ms. Moyer is, of course, subject to cross-examination
and dispute by Mowrey and any witnesses testifying on his behalf. See Dean, 550 F.3d at 630
(whether consent was given is an issue of credibility).
Because, however, a copy of the executed consent was not timely produced, if indeed it
ever existed, it is excludable. See Fed. R. Civ. P. 26(a), 37.
For the foregoing reasons, Mowrey’s supplemental motion in limine No. 10 (Docket #
82) is DENIED.
Enter for the 30th day of December, 2013.
S/Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge
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