Opinion
Case No. 3:20-CR-00576-JGC
01-13-2022
UNITED STATES of America, Plaintiff v. Craig A. THOMPSON, Defendant.
Vanessa V. Healy, Office of the U.S. Attorney, Cleveland, OH, for Plaintiff.
Vanessa V. Healy, Office of the U.S. Attorney, Cleveland, OH, for Plaintiff.
ORDER
James G. Carr, Sr. United States District Judge
This is a criminal case in which the defendant stands charged under 18 U.S.C. §§ 922(g)(1) and 924(a)(2) with being a felon in possession of a firearm – namely, a shotgun and ammunition.
The defendant filed a motion to suppress the firearm and ammunition, and on August 10, 2021, I issued an order granting that motion. See United States v. Thompson , No. 3:20-CR-00576-JGC, 553 F.Supp.3d 429 (N.D. Ohio 2021).
Pending is the government's motion to reconsider that order. (Doc. 27). For the following reasons, I deny the motion.
Background
Defendant filed his motion to suppress on January 22, 2021. (Doc. 12). In it, he argued that the seizure of the shotgun did not satisfy the requirements of the plain view doctrine, and therefore, the police illegally obtained it.
I held a hearing on the motion on February 16, 2021. The government presented the testimony of Sergeant Reuben Jurva, a Toledo Police Department sergeant who assisted in executing the arrest warrant. (Doc. 15, pgID 52). Defendant presented the testimony of Darnell Ulis, a friend who was present on the day of defendant's arrest. (Id. , pgID 75).
On April 2, 2021, the government filed a motion to reopen the suppression hearing to present additional testimony from a witness who was unavailable for the prior hearing. (Doc. 16). I granted that motion and held another hearing on April 28, 2021. During the second hearing, the government presented the testimony of Sergeant William Shaner, another Toledo Police Department sergeant who assisted in executing the arrest warrant. (Doc. 18).
The government filed its opposition to the motion to suppress on July 2, 2021. (Doc. 24). It argued that the shotgun was in plain view, and therefore, the seizure was lawful. The government also argued that the seizure was permissible because the shotgun would have been seized through inevitable discovery.
After considering the parties’ evidence and arguments, I granted defendant's motion to suppress on August 10, 2021. Thompson, supra , 553 F.Supp.3d 429.
I found that the government failed to establish the elements of the plain view doctrine because the shotgun's incriminating nature was not immediately apparent. I further found that the inevitable discovery doctrine did not enable admission of the shotgun and ammunition because the government did not present any evidence indicating that Sergeant Shaner would have called to check on the defendant's prior record.
The government filed its motion to reconsider on October 8, 2021. (Doc. 27). The motion focuses on the inevitable discovery doctrine. In support of the motion, the government filed an affidavit from Sergeant Shaner, stating that he routinely radios his dispatch to inquire about an individual's criminal history after recovering a firearm. (Doc. 27-1). The government contends that I should grant its motion to reconsider in light of this new evidence.
On December 1, 2021, the government filed a supplemental brief in support of its motion to reconsider, asking me to reopen the suppression hearing. (Doc. 29). If reopened, the government submits that Sergeant Shaner would testify on the record that it was his ordinary practice to check whether the individuals he arrested could lawfully possess a firearm.
Standard of Review
The Sixth Circuit instructs me to evaluate a motion to reconsider as a motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure 59(e). Moody v. Pepsi-Cola Metro. Bottling Co. , 915 F.2d 201, 206 (6th Cir. 1990).
A motion to alter or amend a judgment is "extraordinary and is seldom granted because it contradicts notions of finality and repose." Amin v. Konteh , No. 3:05-CV-2303, 2008 WL 5111091, at *2 (N.D. Ohio 2008) (Gwin, J.). The only circumstances in which it is appropriate to grant a motion to alter or amend judgment is where there is an intervening change in controlling law, newly discovered evidence, a clear error of law, or a need to prevent a manifest injustice. GenCorp, Inc. v. Am. Int'l Underwriters , 178 F.3d 804, 834 (6th Cir. 1999). Discussion
The government urges me to reconsider my prior ruling because of newly discovered evidence. It argues that it has presented "new argument and facts," namely, Sergeant Shaner's affidavit. (Doc. 27, pgID 181).
The affidavit, the government argues, shows that Sergeant Shaner would have called to check on the defendant's criminal history after recovering the shotgun, as it is his normal practice to do so. Therefore, discovery of the defendant's felon status was inevitable, and the seizure was lawful.
For evidence to be classified as "newly discovered," it must have been "previously unavailable." GenCorp, supra , 178 F.3d at 834. While it is true that Sergeant Shaner was not available to testify at the first hearing, he was available for, and testified at, the second. The government had ample opportunity during that hearing to ask Sergeant Shaner about the practices and protocols he follows when executing an arrest warrant. The government could have asked Sergeant Shaner whether he normally confirms an arrestee's criminal record or checks whether the individual can lawfully possess a firearm. However, it failed to do so. The government cannot correct this failure by submitting evidence after the fact, as it seeks to do with its motion to reconsider.
The law is clear that granting a motion to reconsider is "extraordinary" relief and that such motions are "seldom granted." Amin, supra , 2008 WL 5111091, at *2. I find no extraordinary circumstances here warranting relief. The government had its opportunity to elicit the testimony it now seeks to file via affidavit. It was not "previously unavailable" and therefore is not newly discovered evidence.
The government further argues in its supplemental brief that I should reopen the suppression hearing so that Sergeant Shaner can provide the missing testimony.
A court "should be extremely reluctant to grant reopenings." United States v. Carter , 374 F.3d 399, 405 (6th Cir. 2004), vacated on unrelated grounds , 543 U.S. 1111, 125 S.Ct. 1056, 160 L.Ed.2d 1045 (2005). "Generally, absent any new evidence or evidence that was unobtainable before the original suppression hearing, or any new issues that became relevant since the initial hearing, the reopening of a suppression hearing is unwarranted." United States v. Baker , No. CV 09-20068, 2011 WL 13142576, at *2 (W.D. Tenn. Dec. 1, 2011). Further, "[t]he party moving to reopen should provide a reasonable explanation for failure to present the evidence [initially]." Carter, supra , 374 F.3d at 406 (citations omitted).
As I have explained above, the testimony that the government seeks to obtain from a reopened hearing was fully obtainable at the previous suppression hearing. Additionally, there are no new issues that have become relevant since I held the original hearings and that would warrant reopening the hearing.
Moreover, the government has not provided a reasonable explanation for its failure to obtain the testimony initially. In fact, it has provided no explanation at all. This alone is a sufficient reason to deny the government's request to reopen the suppression hearing. See id. (affirming district court's decision to deny request to reopen because the movant did not explain why he did not present the new evidence at the initial hearing).
I see no reason to reopen the suppression hearing where the government had a full and fair opportunity to elicit the testimony in question and has not identified any extenuating circumstances for its failure to do so. Conclusion
It is, accordingly, hereby
ORDERED THAT the government's motion to reconsider (Doc. 27) be, and the same hereby is, denied.
So ordered.