U.S. v. Ibarra

• Decision Date: 03 December 1990
• Docket Number: No. 90-8018,90-8018
• Citation: 920 F.2d 702
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Alejandro Garcia IBARRA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 702

920 F.2d 702

UNITED STATES of America, Plaintiff-Appellant, v. Alejandro Garcia IBARRA, Defendant-Appellee.

No. 90-8018.

United States Court of Appeals Tenth Circuit.

Dec. 3, 1990.

David Kubichek, Asst. U.S. Atty. (Richard A. Stacy, U.S. Atty., and Lisa E. Leschuck, Asst. U.S. Atty., on the briefs), D. Wyo., for plaintiff-appellant.

Stephen M. Kissinger, Cheyenne, Wyo., for defendant-appellee.

Before McKAY and BALDOCK, Circuit Judges, and KANE, ¹ District Judge.

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. Secs. 841(a)(1), (b)(1)(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. Sec. 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. Sec. 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...