Opinion
Case No. 3:09-cr-153.
February 16, 2011
This criminal case is before the Court on the Motions of Defendant David Bigi requesting that the Court reconsider and reopen the evidence on earlier Motions to Suppress. (Docs. 45, 51, 53). Specifically, Defendant requests that the Court: (1) reopen and reconsider suppressing evidence acquired following the execution of search warrants on two computers seized from David Bigi's home (Doc. 116); and (2) to suppress all evidence seized from David Bigi's home during a search executed upon the purported consent of his wife. (Doc. 117). The government filed Responses in Opposition to these Motions (Docs. 123, 124), and Defendant filed Replies. (Docs. 127, 128). These Motions are now ripe for resolution.
Defendant has also filed a Motion to Reconsider (Doc. 121) the Order of October 8, 2010 with regard to "defacto search warrants" (Doc. 106). The Court will address that Motion by separate Order.
I. SUPPRESSION OF COMPUTER SEARCHES (DOC. 116)
Defendant requests that the Court reopen the record and reconsider suppressing evidence obtained as a result of searches conducted on computers seized from his home. Defendant argues that newly discovered evidence supports Defendant's earlier motion, in which he argued that the search warrants and/or search warrant affidavits relating to the computers were dated July 29, 2009, two days after the search was executed. (Docs. 51, 53). Defendant's Motions were denied after the Court determined that the search warrant affidavits and search warrants were actually executed on July 24, 2009, and that the handwritten dates on those documents were simply clerical errors. (Doc. 100).
In October 2010, after the suppression hearing and the Court's Order on Defendant's Motions, Defendant obtained a narrative report purportedly authored by Detective Mark Brown. (Doc. 116-1). The narrative report states that, on July 29, 2009, Detective Brown "prepared search warrants for the personal computers confiscated from [David] Bigi" and "met with Judge Larry Moore . . . who reviewed then and signed them." ( Id.) Defendant contends that Detective Brown's narrative is further evidence supporting Defendant's assertion that the dates on the search warrants and search warrant affidavits is no clerical error, and that the search of the computers was conducted without a warrant.
Further, Defendant points to non-file stamped "copies" of the search warrants and search warrant affidavits apparently found in materials obtained directly from Detective Brown. Defendant contends that the signatures blocks on the non-time stamped "copies" found in Detective Brown's files do not match the signature blocks on the time-stamped search warrants and search warrant affidavits submitted at the suppression hearing. The Court does not yet know what to make of this.
The government offers no substantive response supporting the earlier finding of clerical error, and, instead, contends that Defendant's Motion "is moot in light of the fact forensic analysis of the two subject personal computers has revealed no information or data relevant to this case." (Doc. 123). The government also argues that Defendant's Motion is untimely pursuant to Fed.R.Crim.P. 12.
This Court has discretion in determinating whether to grant or deny a motion to reopen a suppression hearing. United States v. Carter, 374 F.3d 399, 405 (6th Cir. 2004), judgment vacated on unrelated grounds, 543 U.S. 111 (2005); see also United States v. Jarnigan, No. 3:08-CR-7, 2008 WL 1848902 at *1 (E.D. Tenn. Apr. 24, 2008). Nevertheless, "`courts should be extremely reluctant to grant reopenings.'" Id. (citing United States v. Kithcart, 218 F.3d 213, 219-20 (3d Cir. 2000); United States v. Blankenship, 775 F.2d 735, 740 (6th Cir. 1985)). In seeking to reopen a suppression motion:
"[t]he party moving to reopen should provide a reasonable explanation for failure to present the evidence [initially]." Id. In order to properly exercise its discretion, the district court must evaluate that explanation and determine if it is both reasonable and adequate to explain why the [moving party] initially failed to introduce evidence that may have been essential to meeting its burden of proof.Id. (citing Kithcart, 218 F.3d at 220).
Here, Defendant presents new documentary evidence, which on its face, supports the earlier Motion to Suppress. The government does not dispute Defendant's contention that the documents submitted in support of Defendant's Motion to Reopen were not in Defendant's possession at the time of the initial suppression hearing. Based upon Defendant's receipt of new documentary evidence, the Court determines that Defendant's Motion to Reopen (Doc. 116) is well-taken, and it is hereby GRANTED.
II. SUPPRESSION OF ITEMS SEIZED FROM DEFENDANT'S HOME PURSUANT TO CONSENT SEARCH (DOC. 117)
With regard to Defendant's Motion to Reconsider suppressing evidence seized from his home following a search performed upon the purported consent of his wife, Defendant does not point to any new evidence. Instead, Defendant asserts a new argument based on an exhibit entered into evidence at the previous suppression hearing, i.e., the consent to search form executed by his wife. (Doc. 45). Defendant now asserts that the consent to search form does not clearly and unequivocally set forth his wife's consent to search the inside of the residence.
As stated by Defendant in his Memorandum in Support of his Motions to Suppress, the focus of his initial Motion concerning the search of his home was "not whether the initial entry and search of the house was consensual but rather whether or not the consent to search the house was revoked and whether or not there was voluntary consent to search the safe." (Doc. 95) (emphasis added).
Pursuant to Fed.R.Crim.P. 12(b)(3), a motion to suppress evidence must be raised by a party before trial. Pursuant to Fed.R.Crim.P. 12(c), "[t]he court may . . . set a deadline for the parties to make pretrial motions and may also schedule a motion hearing." Pursuant to Fed.R.Crim.P. 12(e), "[a] party waives any Rule 12(b)(3) defense, objection, or request not raised by the deadline the court sets under Rule 12(c) or by any extension the court provides."
However, "[f]or good cause, the court may grant relief from the waiver." Fed.R.Crim.P. 12(e). To establish the requisite good cause under Rule 12(e), the party seeking relief from the waiver must, at the least, "articulate some legitimate explanation for the failure to timely file." United States v. Walden, 625 F.3d 961, 965 (6th Cir. 2010) (citations omitted); see also United States v. Chanley, No. 2:07-cr-150-RCJ-RJJ, 2009 WL 2247983 at *3 (D.Nev. Aug. 10, 2009) (stating that in order "[t]o obtain relief from waiver under Rule 12(e), a party must present a legitimate explanation for his failure to raise the issue in a timely manner") (citing United States v. Anderson, 472 F.3d 662, 669 (9th Cir. 2006)).
Here, Defendant offers no explanation for his failure to raise this issue in the original motion to suppress, or in a separate motion to suppress filed before the extended April 1, 2010 deadline. Certainly Defendant was aware of the consent to search form at the time of the hearing (as it was admitted into evidence at that hearing), and Defense Counsel apparently simply chose not to assert that argument
Accordingly, for the foregoing reasons, the Court agrees with Plaintiff that, pursuant to Fed.R.Crim.P. 12, Defendant has waived the issues presented in his Motion to Reconsider. Therefore, Defendant's Second Motion to Reconsider Motion to Suppress Evidence Seized from Defendant's House (Doc. 117) is hereby DENIED.
The Court acknowledges that the waiver occurred on former counsel's watch.
III. CONCLUSION
Defendant's Motion to Reconsider his Motion to Suppress Evidence and to Reopen the Record (Doc. 116), as it relates to searches of Defendant's computers, is GRANTED. Based upon the representations of Counsel for Defendant David Bigi at a hearing before the Court on December 10, 2010, the Court is inclined to limit the live testimony at the reopened evidentiary hearing to the testimony of Judge Larry M. Moore and Detective Mark Brown.
Defendant's Motion to Reconsider Motion to Suppress Evidence Seized from Defendant's House (Doc. 117) is DENIED.
IT IS SO ORDERED.
Date: 2/16/11