United States v. Hemingway

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________
)
UNITED STATES OF AMERICA, )
)
v. )
) Criminal Action No. 10-274 (RWR)
ERIC HEMINGWAY, )
)
Defendant. )
__________________________ )
MEMORANDUM ORDER
The government moves for reconsideration of the order
suppressing the physical evidence seized in this case. The court
had found that the police began a warrantless search of the
defendant’s car in violation of the Fourth Amendment, and that
the arrest of the defendant and seizure of the physical evidence
were fruits of the illegal search. The government argues, as it
did at the motions hearing, that probable cause to arrest the
defendant for possession of an open container of alcohol (“POCA”)
did exist when the search began.
The Federal Rules of Criminal Procedure do not provide for
motions to reconsider interlocutory orders in criminal cases.
Some courts nevertheless have entertained such motions, United
States v. McCallum, 885 F. Supp. 2d 105, 115 (D.D.C. 2012), and
applied the “as justice requires” standard used in civil cases
under Federal Rule of Civil Procedure 54(b) to assess motions to
reconsider interlocutory orders, see, e.g., United States v.
Sunia, 643 F. Supp. 2d 51, 60-61 (D.D.C. 2009). The government
-2-
does not address the standard to apply, and the defendant urges
use of the “as justice requires” standard. Def.’s Opp’n at 4.
“[W]here litigants have once battled for the court's decision,
they should [not] be . . . permitted[ ] to battle for it
again[,]” Arias v. DynCorp, 856 F. Supp. 2d 46, 52 (D.D.C. 2012)
(internal quotation marks and citation omitted), and a court may
deny a motion for reconsideration when it raises “‘arguments for
reconsideration the court ha[s] . . . already rejected on the
merits[,]’” McLaughlin v. Holder, 864 F. Supp. 2d 134, 141
(D.D.C. 2012) (quoting Capitol Sprinkler Inspection, Inc. v.
Guest Servs., Inc., 630 F.3d 217, 227 (D.C. Cir. 2011)).
Nevertheless, the government’s motion will be entertained, and
the “as justice requires” standard will be applied.
Justice may require reconsideration where a court “‘patently
misunderstood the parties, made a decision beyond the adversarial
issues presented, [or] made an error in failing to consider
controlling decisions or data, or [where] a controlling or
significant change in the law has occurred.’” Arias, 856 F.
Supp. 2d at 52 (quoting Negley v. FBI, 825 F. Supp. 2d 58, 60
(D.D.C. 2011)). The burden is on the moving party to show that
reconsideration is appropriate and that harm or injustice would
result if reconsideration were denied. Husayn v. Gates, 588 F.
Supp. 2d 7, 10 (D.D.C. 2008). Here, the government does not
allege that the court misunderstood the parties’ arguments or
-3-
considered an issue not presented by the parties, or that there
was an intervening change in controlling law. At best, the
government appears to be making a second attempt to cite relevant
law and facts in support of an argument that has already been
rejected on the merits.
The government relies principally upon three POCA cases.
One is Perkins v. United States, 936 A.2d 303 (D.C. 2007),
although Perkins does not compel a different result. The issue
in Perkins was to whom the police could attribute possession of
contraband. The issue in this case is whether the police had
probable cause to believe at all that the can seen was
contraband. The Perkins opinion reflected no challenge to
whether the police knew or reasonably believed that there was
alcohol in the open container, or otherwise had probable cause to
believe that an open container violation had been committed. The
only question in Perkins was whether the police could arrest the
driver or the passenger or both for the known violation.
Perkins discussed as a given that the police knew there was
alcohol in the open container. There was no discussion of the
factual basis for the police knowing it, or the Fourth Amendment
basis for police retrieving the container or making an arrest.
Perkins could provide support here if what was in open view was a
gun, or marijuana, or other contraband easily identifiable on
sight. An open container in a car is not contraband unless it
-4-
contains alcohol. Here, the officer could not see in the
container, he did not testify that the driver or passenger said
that it contained alcohol, and his testimony about smelling
alcohol before the arrest was discredited. Suspicion, even as
Perkins acknowledges, id. at 306, is not enough to establish
probable cause.
Moreover, nothing about the totality of the circumstances in
this case elevates the mere suspicion present here to something
more. The government urges that the facts here are more
compelling than those in United States v. Washington, 670 F.3d
1321 (D.C. Cir. 2012), which found probable cause for a
motorist’s POCA arrest where police found a puddle of liquid near
his floorboard and the container nearby was a clear plastic cup,
not even a beer can as was present here. The fact that the can
was a beer can has significance only if it has beer in it -- an
empty can presents no violation whatsoever -- or there is ample
reason to believe there is beer in it. Its placement in the
console’s cup holder may show something about who is in
possession but shows nothing about whether it likely has
contents, much less alcoholic contents. The defendant appeared
nervous, although lights and sirens at three o’clock in the
morning could make a saint nervous without shedding any light at
all on whether there was alcohol in the can. The length of the
police interaction with the defendant and the condition of the
-5-
can did nothing to overcome the fact that the officer could not
see if any alcohol was in the can. Nor did any mere suspicion by
the officer that the defendant or his passenger had been drinking
from the can in the car earlier give the officer authority to
make a warrantless arrest for a misdemeanor that was not
committed in his presence. See D.C. Code § 25-1001(a), (d)
(stating POCA is a misdemeanor); D.C. Code § 23-581(a)(1)(A), (B)
(permitting warrantless arrest for misdemeanor only if committed
in the officer’s presence).
The government also cites United States v. Bean, 17 A.3d 635(D.C. 2011), although Bean gets us no farther. There, the
officers saw in the vehicle not only a broken seal on a cognac
bottle, but saw that the cognac bottle was one-fourth full. They
knew -- they did not just suspect -- that the cognac bottle was
not an empty container, and probable cause existed that an open
container violation was being committed. Bean likewise had no
discussion of the Fourth Amendment basis for the police
retrieving the bottle.
The government has not carried its burden of demonstrating
that reconsideration is necessary to avoid harm or injustice, or
is otherwise warranted. Its motion, then, will be denied.
Accordingly, it is hereby
-6-
ORDERED that the government’s motion [32] to reconsider be,
and hereby is, DENIED.1 It is further
ORDERED that the government file by April 3, 2013 a status
report reflecting whether it will pursue an interlocutory appeal
or whether it requests a further scheduling conference. Any
request for a further scheduling conference must identify three
dates agreeable to both the government and the defense. It is
further
ORDERED that the time under the Speedy Trial Act be, and
hereby is, EXCLUDED from the entry of this Order through
April 10, 2013 under 18 U.S.C. § 3161(h)(7)(A). The court finds
it in the interests of justice to continue this matter and to
exclude the time, and that those interests outweigh the interests
of the parties and the public in a speedier trial. The purpose
of the continuance and time exclusion is to permit the
government, in the exercise of due diligence, to have any
decision about pursuing an interlocutory appeal duly considered
and reviewed by the appropriate officials in the chain of
authority and reported to this court for further scheduling
purposes.
1
Regarding the government’s request for clarification,
the government correctly notes that the court discredited Officer
Gawrilow’s testimony that he detected the smell of alcohol as he
stood outside the car speaking with the defendant through the
driver’s window, but the court did not discredit the entirety of
the officer’s testimony.
-7-
SIGNED this 13th day of March, 2013.
/s/
RICHARD W. ROBERTS
United States District Judge