United States v. Alejandro Garcia Ibarra , 920 F.2d 702 ( 1990 )

McKAY, Circuit Judge.

This appeal arises from an order of the district court suppressing certain evidence. The district court found that a search of the defendant’s vehicle by law enforcement officials violated the defendant’s rights under the fourth amendment of the United States Constitution. The United States has appealed. It asserts that the search of the vehicle was pursuant to a valid consent and that, in any event, the evidence should not be excluded under the doctrine of inevitable discovery announced in Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). The defendant contests the merits of the government’s claims. In addition, he questions the jurisdiction of this court to hear the appeal; the defendant argues that the notice of appeal is untimely under Rule 4(b) of the Federal Rules of Appellate Procedure. We hold that the government’s appeal of the district court’s order was untimely filed and therefore do not reach the merits of the government’s claims.

I.

On March 24, 1989, the defendant, Alejandro Garcia Ibarra, was stopped by Wyoming Highway Patrolman Scott Mahaffey while traveling eastward on Interstate 80. The patrolman issued the defendant a warning notice for failing to signal when passing. Patrolman Mahaffey then ran a check on the defendant’s license and discovered that it had been suspended. He issued the defendant a citation for operating a motor vehicle with a suspended license.

Along with a second patrolman who arrived on the scene, Patrolman Mahaffey then obtained permission to search defendant’s car, including the trunk. The search revealed no incriminating evidence. Without consulting the defendant, the patrolman called a private towing service to tow the defendant’s vehicle into a nearby city after discovering that the defendant’s sole passenger did not have a valid driver’s license. Patrolman Mahaffey informed the defendant that he would need to find a licensed driver before the vehicle would be released. The patrolmen then transported the defendant and his passenger to a Western Union station.

Afterward, the patrolmen drove to where the defendant’s vehicle was impounded and conducted a second search for contraband. They discovered a brick-shaped container wrapped with tape underneath the spare tire in the trunk. A cut in the container revealed a white powdery substance. The defendant was later indicted on one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(l)(B)(ii) (1988).

On May 10,1989, the defendant moved to suppress the evidence obtained in the search of the impounded vehicle as well as a statement he made shortly after his arrest. The defendant argued that the law enforcement officer’s stop of his vehicle was pretextual, that his consent to search the vehicle was made under duress, that he withdrew the consent before the second search of the impounded vehicle, and that the second search was not made pursuant to a lawful inventory search. The government responded that the patrolman stopped the defendant for a lawful purpose. In addition, it argued that the second search was conducted pursuant to the defendant’s continuous consent. It finally argued that the evidence would have been inevitably discovered once Patrolman Mahaffey conducted a previously planned inventory search.

In response to a memorandum of authority submitted on behalf of the defendant, however, the government rescinded its argument relating to the defendant’s continuous consent to the search. The government stated: “Contrary to its prior-stated position, the United States no longer argues that the second search of the Defendant’s vehicle is supportable on the basis of continuing consent. Additional research has failed to provide legal support for this position, and the argument is conceded.” United States’ Supplemental Memorandum in Support of Proposed Findings of Fact and Conclusions of Law at 1.

On November 15, 1989, after conducting an evidentiary hearing, the district court granted the defendant’s motion to suppress. United States v. Ibarra, 725 F.Supp. 1195 (D.Wyo.1989). In its order, the district court noted the government’s concession that the second search was not conducted pursuant to a continuing consent. Id. at 1199-1200.

On December 13, 1989, the government filed with the district court a motion entitled “Motion for Reconsideration of Suppression Order.” The sole basis of the government’s request for reconsideration was its previously conceded argument that the second search of the vehicle was valid under a continuing consent theory. On January 3, 1990, the district court denied the motion for reconsideration. United States v. Ibarra, 731 F.Supp. 1037 (D.Wyo.1990). Before addressing the merits of the government’s claim, the district court noted that no evidence was presented on this issue at the evidentiary hearing. The court then determined that the government was asking it to decide a new issue for which no record was developed. In a footnote, the district court further stated:

Whether the motion is in fact one for reconsideration is relevant for purposes of appeal in this case. A motion for reconsideration in a criminal case tolls the 30 days in which the government may file its notice of appeal, provided such a motion is in fact one for reconsideration and filed within the 30-day period.

Id. at 1039 n. 2. On January 30, 1990, the government filed a notice of appeal in the district court.

II.

As a threshold matter, the defendant argues that the government’s notice of appeal in the district court was untimely. A timely filing of a notice of appeal is required to vest this court with jurisdiction. United States v. Martinez, 681 F.2d 1248, 1254 (10th Cir.1982).

Under Federal Rule of Appellate Procedure 4(b) and 18 U.S.C. § 3731, the government in a criminal case must file a notice of appeal of an order suppressing or excluding evidence within thirty days of the entry of the order.² Here, the district court granted the defendant’s motion to suppress on November 15, 1989. The government then filed its motion for reconsideration on December 13, 1989, which the district court denied on January 3,1990. On January 30, 1990, seventy-six days after the district court entered the original order suppressing the evidence, the government filed its notice of appeal in the district court. The notice of appeal was therefore filed more than thirty days after the district court’s order granting the defendant’s motion to suppress.

The government directs our attention to the Supreme Court’s decisions in United States v. Healy, 376 U.S. 75, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964), and United States v. Dieter, 429 U.S. 6, 97 S.Ct. 18, 50 L.Ed.2d 8 (1976), however, and argues that the submission of its motion for reconsideration tolled the relevant time period to appeal. Because its notice of appeal was filed within thirty days of the district court’s denial of its motion for reconsideration, the government contends, the appeal is timely and this court is therefore vested with jurisdiction.

In Healy, the Court held that the filing of a timely petition for rehearing in the district court tolled the thirty-day period then authorized by statute to seek direct review in the Supreme Court. The thirty-day limitations period runs from the time of the denial of the motion for rehearing, rather than from the time of the order itself. The Court reasoned that the rule serves two important functions. First, the ability of the district court to correct alleged errors may shorten the process of litigation. Second, it avoids the unnecessary expenditure of resources in the appellate court. Healy, 376 U.S. at 80, 84 S.Ct. at 556. In Dieter, the Supreme Court extended the holding in Healy to appeals taken to the courts of appeals pursuant to 18 U.S.C. § 3731. The Court explained that “plenary consideration of an issue by an appellate court ordinarily requires more time than is required for disposition by a trial court of a petition for rehearing. The fact that appeals are now routed to the courts of appeals does not affect the wisdom of giving district courts the opportunity promptly to correct their own alleged errors....” Dieter, 429 U.S. at 8, 97 S.Ct. at 19 (citation omitted).

The rule announced in Dieter and Healy, however, is not absolute. In United States v. Marsh, 700 F.2d 1322 (10th Cir.1983), this circuit held that a motion for reconsideration of a trial court’s order denying a new trial did not toll the time period in which to file a notice of appeal. There, the court focused on the defendant’s evident effort to raise the same issue on consecutive occasions. It noted that, if successive motions were to toll the time to appeal, one party could theoretically postpone the appeal indefinitely. The court in Marsh also found it very unlikely that a redundant motion for reconsideration would succeed. The second motion instead serves only to give the movant extra time to prepare an appeal. Accord United States v. Rothseiden, 680 F.2d 96, 98 (11th Cir.1982).

The question now before us is whether the filing of a motion for reconsideration that raises only a previously conceded argument tolls the time for filing a notice of appeal. The defendant argues that because the purpose and effect of the government’s motion for reconsideration was not that of the motion for rehearing recognized in Dieter, the motion did not toll the time period for filing a notice of appeal. We agree. In our opinion, such a motion does not substantially further the goal of allowing the district court an opportunity to reconsider a point that may have been overlooked in the initial decision.³ A concession of an issue is generally treated as binding on that party. See United States v. Maez, 872 F.2d 1444, 1457 n. 18 (10th Cir.1989); United States v. Morales-Macias, 855 F.2d 693, 695 n. 15 (10th Cir.1988). Moreover, this circuit has not looked favorably on attempts by the government to raise issues it had previously conceded. See United States v. Smith, 781 F.2d 184 (10th Cir.1986).⁴ A motion for reconsideration of a previously conceded issue, therefore, is analogous to the successive motions for reconsideration of the same issue analyzed in Marsh. Generally, such a motion has very little likelihood of success and merely serves to prolong the process of litigation. We believe that a rule allowing a motion for reconsideration that raises only previously conceded issues to toll the time for filing a notice of appeal would subvert, rather than further, the concern for judicial economy.

Here, the government initially raised the issue of continuous consent in a memorandum before the trial court. However, in a subsequent brief filed prior to the eviden-tiary hearing, it conceded that there was no authority supporting its position and expressly retracted the argument. After the district court granted the defendant’s motion to suppress the evidence, however, the government attempted to revive the issue in its motion for reconsideration. Unlike the situation in Healy and Dieter, the motion here did not request that the district court correct an alleged error of law or set aside a ruling on the grounds of mistake or inadvertence.⁵ Nor did the government in its motion cite contrary authority announced after it conceded the continuing consent issue, sparing the parties and the appellate court the burden of unnecessary appellate proceedings. See United States v. Cardall, 773 F.2d 1128 (10th Cir.1985) (second motion raising issue that had been addressed by the Supreme Court after district court denied first motion tolled time for filing appeal).⁶ The motion submitted by the government, therefore, did not ask “the District Court to ‘reconsider [a] question decided in the case’ in order to effect an ‘alteration of the rights adjudicated.’ ” Dieter, 429 U.S. at 9, 97 S.Ct. at 20 (quoting Department of Banking v. Pink, 317 U.S. 264, 266, 63 S.Ct. 233, 234, 87 L.Ed. 254 (1942)).

The government nevertheless argues that its motion need only request reconsideration of the ultimate issue — the district court’s holding on the suppression of the evidence — to toll the time limit for filing a notice of appeal.⁷ That the legal theory on which the government based its motion had been previously conceded, the government contends, is of no practical importance. We disagree. This court has previously looked to the substance of successive motions for reconsideration to determine whether the second motion tolled the statutory period in which a notice of appeal must be filed. Compare Cardall, 773 F.2d at 1128 (second motion effectively raised new issue before district court) with Marsh, 700 F.2d at 1322 (redundant motion for reconsideration does not toll time for filing notice of appeal). We believe the same considerations should determine whether an initial motion for reconsideration tolls the time for filing a notice of appeal.

Because the government’s motion for reconsideration did not toll the thirty-day statutory time period in which to file a notice of appeal, the government’s notice was untimely filed. This court therefore lacks jurisdiction to review the district court’s order. The appeal is DISMISSED.

2 . Federal Rule of Appellate Procedure 4(b) provides in relevant part:

When an appeal by the government is authorized by statute, the notice of appeal shall be filed in the district court within 30 days after the entry of (i) the judgment or order appealed from or (ii) a notice of appeal by any defendant. A judgment or order is entered within the meaning of this subdivision when it is entered in the criminal docket.

Fed.R.App.P. 4(b). Statutory authorization for this appeal is found in section 3731. That provision reads in part:

An appeal by the United States shall lie to a court of appeals from a decision or order of a district courts [sic] suppressing or excluding evidence....

The appeal in all such cases shall be taken within thirty days after the decision, judgment or order has been rendered and shall be diligently prosecuted.

18 U.S.C. § 3731 (1988).

3 . The dissent concludes that our holding conflicts with Dieter because, under our analysis, we must reach the merits of a movant's claim to determine jurisdiction. Dissent Op. at 709-710. In our opinion, however, we do not engage in a merit-based analysis. Although a motion for reconsideration is not specifically contemplated in the Federal Rules of Civil Procedure, it has been described as follows:

The motion to reconsider would be appropriate where, for example, the Court has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension. A further basis for a motion to reconsider would be a controlling or significant change in the law or facts since the submission of the issue to the Court.

Above the Belt, Inc. v. Mel Bohannan Roofing Co., 99 F.R.D. 99, 101 (E.D.Va.1983). That statement's counterpart is contained in Fed.R.App.P. 40(a), which requires every petition for rehearing before a Court of Appeals to "state with particularity the points of law or fact which in the opinion of the petitioner the court has overlooked or misapprehended_” In determining that a motion to reconsider a previously conceded issue does not toll the time to appeal, we determine only that the motion is not what it purports to be: it does not ask the court to reconsider a point of law or fact that it misapprehended or overlooked. The motion therefore does not have the jurisdictional effect of a proper motion for reconsideration, regardless of its merits.

Nor does this decision, in our opinion, conflict with the Supreme Court’s decision in Dieter. To the contrary, the Court in Dieter recognized that although the motion before it was not captioned a "petition for rehearing,” an examination of its substance demonstrated that was in effect the motion’s purpose. Dieter, 429 U.S. at 8-9, 97 S.Ct. at 19. Similarly, the Court in Dep’t of Banking v. Pink, 317 U.S. 264, 63 S.Ct. 233, 87 L.Ed. 254 (1942), looked beyond the caption of the motion to determine its substance. We engage in the same inquiry here.

4 . In Smith, the court refused to permit the government to raise an issue in a petition for rehearing before the appellate court that it had previously conceded. The court reasoned that to allow a party to make such a belated and dramatic shift in position on petition for rehearing would permit piecemeal litigation. Id.

5 . The government notes that the district court cited United States v. Recalde, 761 F.2d 1448 (10th Cir.1985), in support of the government’s concession of the issue of continuing consent. It argues that its motion asked the district court to reconsider the court’s citation to Recaide. Because the government had abandoned the theory of continuing consent, however, any correction regarding the citation would not have affected the outcome of the district court’s order.

6 . The court in Cardall limited the holding to the facts before it. The court also noted the procedure followed in Garcia v. Regents of the University of California, 737 F.2d 889 (10th Cir.1984). There, the appellant first filed a notice of appeal within the thirty-day period. The appellant then moved the appellate court for a partial remand so that the district court could consider a motion for new trial.

7 . Though not cited by the government, the Eleventh Circuit adopted similar rationale in holding that a motion for reconsideration that raised a new issue tolled the time to appeal. See United States v. Ladson, 774 F.2d 436, 438-39 n. 3 (11th Cir.1985). We do not consider the effect of such a motion here; we limit our consideration to where a party concedes an issue already raised, invoking the reliance of the court and opposition. Nor do we reach the appropriate scope of arguments in a motion for reconsideration filed in the district court. We note, however, that this circuit has held that "[p]etitions for rehearing under Fed.R.App.P. 40(a) are permitted to enable parties to notify, and to correct, errors of fact or law on the issues already presented; they are not meant to permit parties to assert new grounds for relief.” Sierra Club v. Hodel, 848 F.2d 1068, 1100-01 (10th Cir.1988). See also United States v. Head, 737 F.Supp. 1287, 1288 (W.D.N.Y.1990) ("The government’s present constitutional argument may well have merit. But the fact remains that it was not raised before, and it would be exceptionally unfair to the defendant to allow the government, with the benefit of hindsight after having lost based on its original arguments, to use a motion for reconsideration to raise a new argument that should have been raised in the first instance.”)