The opinion of the court was delivered by: John D. Bates United States District Judge
Presently before the Court is the government's motion for reconsideration of the Court's April 19, 2006 Order granting in part defendant's motion to suppress physical evidence recovered in connection with his arrest. In the Memorandum Opinion that accompanied that Order, the Court suppressed all evidence recovered from the seizure and subsequent search of a green Lexus parked in the backyard of the home of defendant's mother, but denied the motion with respect to the evidence recovered from a search of defendant's person. For the reasons that follow, the Court will grant in part and deny in part the government's motion to reconsider that ruling, and will grant defendant's motion to strike certain new evidence that the government seeks to submit regarding an issue that was previously litigated and decided.
The factual background of defendant's arrest, the search of his person, and the seizure and search of the green Lexus are detailed fully in the Court's April 19, 2006 Memorandum Opinion, and will not (except when particularly pertinent) be repeated here. See United States v. Dubose, Criminal Action No. 05-372, at 1-5 (D.D.C. Apr. 19, 2006) (Memorandum Opinion) ("Dubose Mem. Op."). That earlier decision also describes the procedural history of defendant's motion, the subsequent rounds of briefing, and the representations of counsel at various hearings and status conferences held with the Court. See id. at 5-10.
To say that the proceedings in connection with defendant's motion to suppress have been "protracted," Gov't Mem. Supp. at 1, is an understatement. In total, the government submitted six briefs in connection with the motion (not including the present motion to reconsider and attendant reply). Defendant's motion to suppress was initially filed on February 9, 2006. One week later, the government filed an opposition. It then filed a "supplement" to its opposition on February 23, 2006 -- just one day before the scheduled suppression hearing. At the suppression hearing, the government was unprepared, and, consequently, unable to engage in meaningful discourse with the Court regarding some of defendant's legal arguments, including the significance of United States v. Christian, 187 F.3d 663 (D.C. Cir. 1999). The Court specifically directed the government to address these arguments in writing after the hearing. Three weeks later, the government untimely filed a "supplemental" document, simultaneously with a motion for an extension of time. Thereafter, the government filed a motion to submit another "supplement" to the "supplemental" filing, bringing its total number of filings at that time to four.
A status conference was held on March 29, 2006, following the receipt of defendant's reply. At that conference, the government admitted that its previous filings were based on a "serious misconception" of the facts. Tr. of 3/29/06 at 8. Specifically, the government had thought that the green Lexus was seized from a public street. Tr. of 3/29/06 at 3, 5, 8. The government was not prepared to address the Court regarding how its arguments were affected by the actual facts, however. Id. at 4, 8. Accordingly, the Court instructed the government to submit, within two days, a document outlining the arguments that remained viable in light of the actual facts. Id. at 17. The Court specifically addressed the government as follows:
I need to know what issues I have to address in resolving this, and it seems to me that you have an . . . obligation to me. . . . I need to know whether I have to take the time to address [certain issues]. And I think . . . -- it's your obligation to tell me, since you misunderstood the facts, whether the government is continuing to make the arguments that it has made.
Id. at 15-16. Although particularly interested in two specific issues -- (1) the government's argument that the vehicle could be seized based on the District's civil forfeiture laws; and (2) the government's argument that the vehicle could be seized because it was unregistered, id. at 15-16, 17, 18 -- the Court specifically advised the government not to "fail to look at all the issues." Id. at 18. The government was clearly instructed that if there was anything else it thought the Court needed to know with respect to issues other than the two specifically enumerated, then it should address them in the filing as well. Id.
In its subsequent filing, the government expressly conceded that its argument regarding the ability of the officers to seize the car based upon its lack of registration was no longer viable in light of the true facts. Gov't Opp'n of 3/31/2006 at 1 (dkt. no. 25). The government advanced three justifications for the seizure from private property: (1) defendant's alleged lack of a reasonable expectation of privacy in the property; (2) the plain view doctrine; and (3) the defendant's alleged status as a recent occupant of the vehicle under Thornton v. United States, 541 U.S. 615 (2004). Id. at 1-2. Neither the previously-advanced civil forfeiture argument, nor the defendant's arguments based on Christian, were mentioned. Id. In response, defendant filed a supplemental document and attached an affidavit regarding his relationship to the property. Def.'s Suppl. of 4/13/2006 & Def.'s Aff. (dkt. no. 27). The government's subsequent reply (which exceeded the applicable page limit) urged the Court to reject defendant's affidavit or, in the alternative, to "allow the government to cross-examine the assertions made therein, and to submit evidence in rebuttal thereof." See Gov't Reply of 4/13/2006 at 2 n.2. By minute order dated April 14, 2006, the Court advised the parties that it would "decide the motion to suppress at the upcoming Status Conference on April 19th" and would "permit very brief, controlled cross-examination of defendant on his affidavit" at that time. See United States v. Dubose, Criminal Action No. 05-372 (D.D.C. Apr. 14, 2006) (Minute Order).
At the April 19, 2006 status conference, the Court offered the government the opportunity to "engage in brief . . . focused cross-examination on the subject matters raised in [defendant's] affidavit." Tr. of 4/19/2006 at 3. The government, however, voluntarily declined:
[THE GOVERNMENT]: Before that happens, Your Honor, this affidavit is going to be the defense's entire submission with regard to standing,*fn1 is that correct? I mean this is all the Court has permitted. . . . I'm asking if you're permitting him to do anything else other than what's in the four corners of this affidavit with regard to establishing standing in the place where --THE COURT: We don't use the term standing . . . [THE GOVERNMENT]: Expectation of privacy, as has been elucidated by the court of appeals.
THE COURT: There is nothing further that the defendant has proffered and except for the opportunity to quote-unquote redirect after your cross-examination, I would assume that [defense counsel] is not going to be offering anything else but we'll let him speak to that first before I decide whether he can. . . . [DEFENSE COUNSEL]: . . . I have no expectation at this point to put on any type of additional evidence. . . . [THE GOVERNMENT]: That being the case, Your Honor, I have no cross-examination on this affidavit. However, I would like the Court to hear argument on why I believe it is insufficient to establish any standing.
THE COURT: All right. So no cross-examination even after you said you wanted to cross examine.
Id. at 3-4. As anticipated, the Court ruled on defendant's motion from the bench. Id. at 6-9. A written Memorandum Opinion was posted later that day, finding that: (1) defendant's arrest was unlawful under Christian, but the search of his person did not violate the Fourth Amendment based upon the inevitable discovery doctrine; (2) the facts in the record, reasonable inferences therefrom, and the Court's interpretation of case law established that defendant had a legitimate expectation of privacy in the green Lexus; (2) the seizure of the vehicle was not justified under the plain view doctrine because it lacked an immediately apparent nexus to crime; and (3) the seizure of the vehicle could not be justified under Thornton because it was not within defendant's immediate control at the time of the arrest. See Dubose Mem. Op. at 10-19. The government indicated a willingness to review appeal or reconsideration options, and a briefing schedule was set. See Tr. of 4/19/2006 at 9, 10; see also United States v. Dubose, Criminal Action No. 05-372 (D.D.C. Apr. 21, 2006) (Minute Entry). Thereafter, the government twice sought an extension of that briefing schedule, see United States v. Dubose, Criminal Action No. 05-372 (dkt. nos. 31, 32) (D.D.C. May 8 & May 15, 2006), and finally filed its motion for reconsideration on May 19, 2006. See Gov't Mot. Recons.
A significant portion of the motion challenges the Court's finding with respect to defendant's legitimate expectation of privacy.*fn2 This issue was, as outlined above, discussed at length during briefing on the motion to suppress -- specifically, in the government's March 31, 2006 and April 13, 2006 filings (dkt. nos. 25 & 28), defendant's filing of April 13, 2006 (dkt. no. 27), and before the Court at the April 19, 2006 Status Conference, see Tr. of 4/19/2006 at 5- 6.
The government now seeks to admit two additional pieces of evidence, the existence and subject matter of which was never previously made known to the Court or to defendant. The first exhibit is an affidavit of one of the arresting officers, Officer Jones, regarding his interview of defendant's mother, L'ynda Dubose. See Gov't Exh. 1. The second exhibit is the transcript of the grand jury testimony of Ms. Dubose. See Gov't Exh. 2. According to the government, these exhibits establish that defendant and Ms. Dubose are estranged and that she was unaware that defendant was in the vicinity of her home, let alone parked on her property. The government claims that these exhibits establish that defendant was not visiting ...