Opinion
Case No. 2:04-CR-251DAK.
June 25, 2004
ORDER
On May 28, 2004, Defendant Troy Miller filed a Motion for Reconsideration of Order Striking Evidentiary Hearing. The United States' opposition to the motion was due June 15, 2004. As of the date of this order the United States has not opposed the motion. This court grants Defendant's motion based upon the United States' failure to respond.
Moreover, Defendant's motion should be granted because his motion to suppress is based not on whether the statements contained in a supporting affidavit created probable cause for a search warrant to be issued, but on the legality of a search conducted without a warrant in order to gain information to put in the affidavit in support of the search warrant. The court concludes that Defendant is entitled to an evidentiary hearing on the legality of this initial search. Therefore, the hearing set in this matter for July 6, 2004, at 3:00 p.m. is vacated. An evidentiary hearing on the initial search will be held August 6, 2004 at 2:00 p.m. Briefing on the issue will then occur after the evidentiary hearing. A briefing schedule will be set at the August 6, 2004 hearing. Accordingly, Defendant's Motion for Reconsideration of Order Striking Evidentiary Hearing is GRANTED.