Opinion
Case No. 99-CR-23 B.
February 2, 2000
REPORT AND RECOMMENDATION
The defendant, Richard Knudsen, filed a motion on January 8, 2000 attempting to challenge the search of the premises at 1700 So. 800 West which was the Sundowner Motorcycle Club clubhouse. Knudsen contends he had a bedroom at the clubhouse which was searched pursuant to a warrant to search the clubhouse which occurred on January 28, 1999. Defendant contends items were seized outside the warrant and it lacked particularity. The defendant is represented by counsel, Mr. Charles F. Loyd, and was first represented by a Mr. Robert Copier until he was excused and Loyd was appointed. This court set a motion cut off date on March 16, 1999 for pretrial motions to be filed no later than April 20, and 1999. (File Entries #175, 196, 197). No motion to suppress, except a motion to suppress wire tap evidence, was made by Knudsen. Trial in this matter is firmly set for March 20, 2000.
At the time of defendant's initial arraignment a motion cutoff date of February 17, 1999 was set (Docket 01/28/99). It was extended to 03/31/99 at a pretrial on February 22, 1999 (File Entry # 131).
An amended motion to suppress wiretap evidence was filed for Knudsen by counsel Loyd on June 23, 1999.
This motion was filed well beyond the period for the filing of motions to suppress.
There has been no request for a late filing of the motion and no affidavit submitted as to why the motion could not have been timely made or made prior to January 28, 2000. There has been no compliance with Rule 45(b) F.R.Cr.P. No good cause for the late filing has been shown.
Under DUCrimR 12-1(a) a motion is to be made prior to arraignment, 10 days prior to trial, "or such other time as the court may specify." Generally, a failure to comply with a specific order of the court on a motion to suppress is a basis to deny the motion as untimely. United States v. Miller, 987 F.2d 1462,1465 (10th Cir. 1993) ("we hold that the district court did not err in denying Miller's untimely motion to suppress without holding a hearing. . .," based on an application of Rule 12(f) F.R.Cr.P.); United States v. Bridwell, 583 F.2d 1135, 1139 (10th Cir. 1978); United States v. Echols, 577 F.2d 308,311 (5th Cir. 1978). See also United States v. Erickson, 676 F.2d 408, 410 (10th Cir. 1982); United States v. Watson, 594 F.2d 1330,1336 n. 5 (10th Cir. 1979); Mesmer v. United States, 405 F.2d 316,318 (10th Cir. 1969). This position has been taken by other circuits as well. United States v. Looking, 156 F.3d 803, 809-10 (8th Cir. 1998); United States v. Ruhe, 191 F.3d 376,386 (4th Cir. 1999) ("Even if defendant seeking to file an untimely motion to suppress did not know all the information establishing the basis for the claim, the court will not excuse a forfeiture if the defendant, by due diligence, could have or should have discovered the claim"). See United States v. Garrett, 961 F.2d 743,748 (8th Cir. 1992) (holding under Rule 12(f) the district court did not abuse discretion denying the motion to suppress as untimely where no good cause is offered for late submission); United States v. Kincaide, 145 F.3d 771 (6th Cir. 1998); United States v. Sobin, 56 F.3d 1423, 1426 (D.C. Cir. 1995).
Rule 12(f) F.R.Cr.P. expressly provides:
Failure by a party to raise defenses or objections or to make requests which must be made prior to trial, at the time set by the court pursuant to subdivision (c), or prior to any extension thereof made by the court, shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver. (Emphasis added).
In this case, the facts of the conditions of the residence of Knudsen to the Sundowner premises, were known when he was arrested. No good cause of any kind has been presented to justify the very late filing of the motion to suppress. The motion is nine months late. The case had been referred to the magistrate judge in February, 1999. The present motion was filed at a time that the procedure needed for a hearing, report and recommendation and district court review could not be conveniently reached before trial. See United States v. Mora, 135 F.3d 1351 (10th Cir. 1998).
The motion in this case is sparse. It does not state with particularity the facts or evidence to be suppressed. The motion states the warrant lacked particularity for the items to be seized but does not identify the items seized or what was authorized for seizure by the warrant. The warrant itself is not quoted. The essence of the motion is itself vague.
The case has been referred to the magistrate judge under 28 U.S.C. § 636 (b)(1)(B). This report and recommendation is submitted pursuant to the reference on defendant Knudsen's motion to suppress.
RECOMMENDATION
The motion to suppress should be denied as untimely.
Copies of the foregoing Report and Recommendation are being mailed to the parties who are hereby notified of their right to object to the same. The parties are also notified that they must file any objections to the Report and Recommendation, with the clerk of the court, pursuant to 28 U.S.C. § 636(b), within ten (10) days after receiving it. Failure to file objections may constitute a waiver of those objections on subsequent appellate review.