United States District Court, District of Columbia
For ERIC HEMINGWAY, Defendant: Larry C. Brown, Jr., LEAD ATTORNEY, Alexandria, VA.
For VALETTI HEMINGWAY, Respondent: Joanne Roney Hepworth, HEPWORTH & PENDRY, Washington, DC.
For USA, Plaintiff: Terry Eaton, LEAD ATTORNEY, Cassidy Kesler Pinegar, U.S. ATTORNEY'S OFFICE, Washington, DC.
RICHARD W. ROBERTS, United States District Judge.
The government moves for reconsideration of the order suppressing the physical evidence seized in this case. The court had found that the police began a warrantless search of the defendant's car in violation of the Fourth Amendment, and that the arrest of the defendant and seizure of the physical evidence were fruits of the illegal search. The government argues, as it did at the motions hearing, that probable cause to arrest the defendant for possession of an open container of alcohol (" POCA" ) did exist when the search began.
The Federal Rules of Criminal Procedure do not provide for motions to reconsider interlocutory orders in criminal cases. Some courts nevertheless have entertained such motions, United States v. McCallum, 885 F.Supp.2d 105, 115 (D.D.C. 2012), and applied the " as justice requires" standard used in civil cases under Federal Rule of Civil Procedure 54(b) to assess motions to reconsider interlocutory orders, see, e.g., United States v. Sunia, 643 F.Supp.2d 51, 60-61 (D.D.C. 2009). The government does not address the standard to apply, and the defendant urges use of the " as justice requires" standard. Def.'s Opp'n at 4. " [W]here litigants have once battled for the court's decision, they should [not] be . . . permitted[ ] to battle for it again[,]" Arias v. DynCorp, 856 F.Supp.2d 46, 52 (D.D.C. 2012) (internal quotation marks and citation omitted), and a court may deny a motion for reconsideration when it raises " 'arguments for reconsideration the court ha[s] . . . already rejected on the merits[,]'" McLaughlin v. Holder, 864 F.Supp.2d 134, 141 (D.D.C. 2012) (quoting Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217, 227, 394 U.S. App. D.C. 73 (D.C. Cir. 2011)). Nevertheless, the government's motion will be entertained, and the " as justice requires" standard will be applied.
Justice may require reconsideration where a court " 'patently misunderstood the parties, made a decision beyond
the adversarial issues presented, [or] made an error in failing to consider controlling decisions or data, or [where] a controlling or significant change in the law has occurred.'" Arias, 856 F.Supp.2d at 52 (quoting Negley v. FBI, 825 F.Supp.2d 58, 60 (D.D.C. 2011)). The burden is on the moving party to show that reconsideration is appropriate and that harm or injustice would result if reconsideration were denied. Husayn v. Gates, 588 F.Supp.2d 7, 10 (D.D.C. 2008). Here, the government does not allege that the court misunderstood the parties' arguments or considered an issue not presented bye the parties, or that there was an intervening change in controlling law. At best, the government appears to be making a second attempt to cite relevant law and facts in support of an argument that has already been rejected on the merits.
The government relies principally upon three POCA cases. One is Perkins v. United States, 936 A.2d 303 (D.C. 2007), although Perkins does not compel a different result. The issue in Perkins was to whom the police could attribute possession of contraband. The issue in this case is whether the police had probable cause to believe at all that the can seen was contraband. The Perkins opinion reflected no challenge to whether the police knew or reasonably believed that there was alcohol in the open container, or otherwise had probable cause to believe that an open container violation had been committed. The only question in Perkins was whether the police could arrest the driver or the passenger or both for the known violation.
Perkins discussed as a given that the police knew there was alcohol in the open container. There was no discussion of the factual basis for the police knowing it, or the Fourth Amendment basis for police retrieving the container or making an arrest. Perkins could provide support here if what was in open view was a gun, or marijuana, or other contraband easily identifiable on sight. An open container in a car is not contraband unless it contains alcohol. Here, the officer could not see in the container, he did not testify that the driver or passenger said that it contained alcohol, and his testimony about smelling alcohol before the arrest was discredited. Suspicion, even as Perkins acknowledges, id. at 306, is not enough to establish probable cause.
Moreover, nothing about the totality of the circumstances in this case elevates the mere suspicion present here to something more. The government urges that the facts here are more compelling than those in United States v. Washington, 670 F.3d 1321, 399 U.S. App. D.C. 391 (D.C. Cir. 2012), which found probable cause for a motorist's POCA arrest where police found a puddle of liquid near his floorboard and the container nearby was a clear plastic cup, not even a beer can as was present here. The fact that the can was a beer can has significance only if it has beer in it -- an empty can presents no violation whatsoever -- or there is ample reason to believe there is beer in it. Its placement in the console's cup holder may show something about who is in possession but shows nothing about whether it likely has contents, much less alcoholic contents. The defendant appeared nervous, although lights and sirens at three o'clock in the morning could make a saint nervous without shedding any light at all on whether there was alcohol in the can. The length of the police interaction with the defendant and the condition of the can did nothing to overcome the fact that the officer could not see if any alcohol was ...