Opinion
No. 2:19-cr-00235 KJM
10-02-2020
UNITED STATES OF AMERICA, Plaintiff, v. RODERICK DARNELL HARRIS, Defendant.
ORDER
The government moves for reconsideration of this court's order granting defendant Rodrick Harris's motion to suppress. Mot., ECF No. 49; Order, ECF No. 45. The matter is fully briefed. See Opp'n, ECF No 52; Reply, ECF No. 53. The court heard arguments on September 28, 2020 by videoconference. See Minutes, ECF No. 55. Justin Lee appeared for the United States, and Christina Sinha appeared for defendant. Having carefully considered the applicable law, the court grants the government's motion.
I. INTRODUCTION
The court described the history of this case in detail in its previous order, ECF No. 45, so only a brief summary is necessary here.
A Fairfield police officer stopped and searched Mr. Harris while he was riding his bike last October. Id. at 2. Officers said they were looking for an ID; they found a gun. Id. at 7. Mr. Harris was then charged with possessing a firearm in violation of 18 U.S.C. § 922(g)(1), which makes it a crime for people with a previous felony conviction to possess a firearm.
Mr. Harris moved to suppress the gun, claiming the officer had no authority to arrest him and therefore no authority to search him without a warrant. See generally Mot., ECF No. 23. The government argues the officer had authority to arrest Mr. Harris because Harris was riding his bike on the sidewalk. See Order at 9, ECF No. 45. Doing so is a violation of the Fairfield Municipal Code, an "infraction." See id. at 11-12; Fairfield Mun. Code § 4.9.3. Under California law, a police officer can indeed arrest someone for riding a bike on the sidewalk, but the officer may take someone into custody for such an infraction only if the person does not have "satisfactory evidence of identity" and refuses to sign a promise to appear or give the officer a thumb or fingerprint. See Cal. Penal Code § 853.5(a).
After an evidentiary hearing, the court found Mr. Harris had most likely been riding on the sidewalk, Order at 9-10, ECF No. 45, but it held that California law made a custodial arrest illegal, see id. at 11-12 (citing United States v. Mota, 982 F.2d 1384, 1386 (9th Cir. 1993), and Cal. Penal Code § 853.5(a)). This conclusion meant that unless the officer had probable cause to make an arrest on some other basis, the search was unconstitutional and the gun inadmissible. See id. at 7-9. The court rejected two alternative bases not relevant here and thus concluded that the officer had no probable cause for a custodial arrest, which meant that the search violated the Fourth Amendment. Id. at 12-14. The court granted the motion to suppress. The government now moves for reconsideration, arguing that reliance on Mota and Penal Code § 853.5(a) was clear error. ECF No. 49.
II. LEGAL STANDARD
Although the Federal Rules of Criminal Procedure do not expressly authorize motions for reconsideration, the Ninth Circuit has "approved of the judicial economy that results from the pretrial reconsideration of suppression orders by the district court." United States v. Rabb, 752 F.2d 1320, 1322 (9th Cir. 1984), abrogated in part on other grounds by Bourjaily v. United States, 483 U.S. 171 (1987). "No precise 'rule' governs the district court's inherent power to grant or deny a motion to reconsider a prior ruling in a criminal proceeding." United States v. Lopez-Cruz, 730 F.3d 803, 811 (9th Cir. 2013). It is instead a matter of discretion. Id.
That said, the Ninth Circuit's decisions offer guidance. The Circuit has held that a motion for reconsideration of a "judgment" in a criminal case—that is, for reconsideration of an appealable "final" order such as an order granting a motion to suppress evidence—is governed by Federal Rules of Civil Procedure 59(e) and 60(b). See United States v. Martin, 226 F.3d 1042, 1048 & n.8 (9th Cir. 2000) (citing Fed. R. Civ. P. 54); see also 18 U.S.C. § 3731. Rule 59(e) is applicable here because the government moved to reconsider within the twenty-eight-day period allowed by that rule. A Rule 59(e) motion is "an extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (citation and quotation marks omitted). Such a motion "should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law." 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999).
III. DISCUSSION
The government argues the court committed clear error when it relied on the Ninth Circuit's decision in United States v. Mota, 982 F.2d 1384. In Mota, police had arrested two street vendors selling corn on the cob who admitted they did not have a license. Id. at 1385. The officers searched the two vendors and found counterfeit bills. Id. The vendors moved to suppress the counterfeits, arguing California law did not permit the arrest, and the Ninth Circuit agreed: "state law governing arrests is relevant to assessing the constitutionality of a search incident to that arrest." Id. at 1387. Because California law did not permit custodial arrests for "the infraction of operating without a valid business license," the court held that "a custodial arrest for such an infraction [was] unreasonable, and thus unlawful, under the Fourth Amendment." Id. at 1388-89. The court thus suppressed the counterfeit bills. Id.
Several years after Mota was decided, the Supreme Court held that the Fourth Amendment does not forbid police from making warrantless arrests for minor criminal offenses, "such as a misdemeanor seatbelt violation punishable only by a fine." Atwater v. City of Lago Vista, 532 U.S. 318, 323 (2001). It expanded that holding in Virginia v. Moore when it held that "warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment's protections." 553 U.S. 164, 176 (2008).
The Atwater and Moore decisions appeared to conflict with the Ninth Circuit's decision in Mota, and not long after Moore was decided, the Circuit confirmed the Supreme Court had "effectively overruled" its previous decision that "federal courts must determine the reasonableness of the arrest in reference to state law governing the arrest and that state law restrictions on arrest for minor crimes were thus applicable to Fourth Amendment analyses." Edgerly v. City & Cty. of San Francisco, 599 F.3d 946, 956 n.14 (9th Cir. 2010) (quotation marks omitted) (citing Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc)). Although the Ninth Circuit did not confirm expressly that Mota itself was overruled, it did cite Bingham v. City of Manhattan Beach to explain its reasoning, see id. (citing 341 F.3d 939, 950 (9th Cir. 2003)), and Bingham in turn had expressly applied the rule of Mota. See 341 F.3d at 950 (citing Mota, 982 F.2d at 1388).
Unfortunately, despite the Supreme Court's decision in Moore and the Ninth Circuit's holding in Edgerly, Ninth Circuit panels have cited Mota without noting any conflict, albeit in nonprecedential memorandum dispositions only. See United States v. Springfield, 699 F. App'x 661 (9th Cir. 2017) (unpublished); United States v. Benton, 407 F. App'x 218 (9th Cir. 2011) (unpublished). District courts in the Ninth Circuit have also continued to rely on Mota for its abrogated holding that "federal courts must determine the reasonableness of the arrest in reference to state law government the arrest" without noting Moore or Edgerly. Spears v. Arizona Board of Regents, 372 F. Supp. 3d 893, 919 (D. Ariz., Mar. 7, 2019) (citing Mota, 982 F.2d at 1388); see also Moore v. City of Berkeley, No. 14-669, 2018 WL 1456628, at*13 (N.D. Cal. Mar. 23, 2018); United States v. Smith, No. 16-341, 2017 WL 8941280, at *7 (D. Nevada Mar. 2, 2017); Zaic v. Giddens, No. 14- 892, 2016 WL 4483843, at *3 (D. Nevada Aug. 23, 2016); Wilson v. County of Contra Costa, No. 14-3491, 2015 WL 2124762, at *5 (N.D. Cal. May 6, 2015); Krona v. Castillo, No. 11-315, 2012 WL 555150, at *2 (W.D. Wash. Jan. 23, 2012); Richardson v. City of Antioch, 722 F. Supp. 2d 1133, 1146 n.6 (N.D. Cal. July, 13, 2010). --------
Here, because the officer saw Mr. Harris riding his bike on the sidewalk in violation of the Fairfield Municipal Code, he had probable cause to make an arrest, and the Fourth Amendment was no bar. Under Moore, that is true even though the arrest was illegal under California law, see Cal. Penal Code § 853.5(a). A search was therefore permissible; "police officer[s] may conduct a warrantless search of the arrestee's person and the area 'within [their] immediate control.'" Davis v. United States, 564 U.S. 229, 232 (2011) (quoting Chimel v. California, 395 U.S. 752, 763 (1969)).
Contrary to Mr. Harris's argument, the difference between "crimes" and "offenses" does not permit a distinction between this case and the Supreme Court's decisions in Moore and Atwater. See Opp'n at 11-12, ECF No. 52. The officer in Atwater did not violate the Fourth Amendment even though the "crime" in question—not buckling a seatbelt—was an extremely minor misdemeanor and punishable by a fine of at most $50. 532 U.S. at 323. The Ninth Circuit's decision in Edgerly forecloses Mr. Harris's argument as well: the "crime" in that case was also just an "infraction" punishable by a fine of only $75. See 599 F.3d at 956 (citing Cal. Penal Code § 602.8(b)).
This conclusion, however correct under the applicable law, gives the court no pleasure given the history here. Defense counsel is justified in complaining of the government's unexplained delay. Many months have passed and the parties have appeared at multiple hearings since Mr. Harris first made the argument the government now claims provided the original impetus for this motion. Rule 59(e) is not an excuse to make arguments or present evidence that could have been raised earlier. See Kona Enters., 229 F.3d at 890. District courts may therefore decline to consider arguments and evidence "that the government failed to raise . . . in the hearing on the motion," especially when the government gives "no reason for [its] failure to do so." Lopez-Cruz, 730 F.3d at 811-12 (affirming denial of government's motion for reconsideration of order suppressing evidence because government could have advanced its evidence and arguments earlier). Having carefully considered its obligations under the law, the court declines to deny the government's motion on this basis. Doing so would preserve an order squarely in conflict with Supreme Court precedent, as acknowledged by the Ninth Circuit, by which this court is bound.
IV. CONCLUSION
In Atwater, Justice O'Connor, joined by Justices Stevens, Ginsberg and Breyer, wrote in dissent that the "unbounded discretion" the majority had granted to police carried a "grave potential for abuse." 532 U.S. at 372 (O'Connor, J. dissenting). The dissenters believed the Court's decision would escalate trifling infractions into arrests, searches, seizures and forfeitures despite the Fourth Amendment's demand "that [police actions] be a reasonable and proportional response to the circumstances of the offense . . . ." Id. The majority responded that this "parade of horribles" was speculation—no potential for abuse had "ripened into a reality." Id. at 353 n.25. With this case, there is at least one horrible in the parade.
1. The government's motion for reconsideration, ECF No. 49, is granted.
2. The court's order, ECF No. 45, is vacated in part to the extent it is inconsistent with this order.
2. Defendant's motion to suppress, ECF No. 23, is denied.
IT IS SO ORDERED. DATED: October 2, 2020.
/s/_________
CHIEF UNITED STATES DISTRICT JUDGE