U.S. v. Hector

• Decision Date: 02 May 2005
• Docket Number: No. CR 04-00860 DDP.,CR 04-00860 DDP.
• Citation: 368 F.Supp.2d 1060
• Court: U.S. District Court — Central District of California
• Parties: UNITED STATES of America, Plaintiff, v. Albert Lamont HECTOR, Defendant.

Page 1060

368 F.Supp.2d 1060

UNITED STATES of America, Plaintiff, v. Albert Lamont HECTOR, Defendant.

No. CR 04-00860 DDP.

United States District Court, C.D. California.

May 2, 2005.

Mark Aveis, Rosalind Wang, AUSA — Office of U.S. Attorney, Los Angeles, CA, for Plaintiff.

Davina Chen, Federal Public Defender, Los Angeles, CA, for Defendant.

ORDER DENYING GOVERNMENT'S MOTION FOR RECONSIDERATION

PREGERSON, District Judge.

This matter is before the Court on the government's motion for reconsideration of the order granting the defendant's second motion for reconsideration. After reviewing the papers submitted by the parties and hearing oral argument, the Court denies the government's motion and adopts the following order.

I. Background

On July 9, 2004, Albert Lamont Hector was charged with possession with intent to distribute cocaine base (21 U.S.C. § 846), possession of a firearm in furtherance of drug trafficking (18 U.S.C. § 924(c)), and being a felon in possession of a firearm and ammunition (18 U.S.C. § 922(g)(1)).

On September 27, 2004, the defendant filed a motion to suppress the evidence obtained on June 2, 2004, when agents from the Bureau of Alcohol, Tobacco and Firearms and officers from the Los Angeles Police Department arrested the defendant and searched his apartment. During the search, the defendant was presented with a "Search Warrant Notice of Service" ("Notice of Service"). The Notice of Service did not indicate which items the officers and agents were authorized to seize, or state the address of the premises to be searched.¹ The government acknowledged during prior oral argument on the defendant's second motion for reconsideration that the "Notice of Service" is not a warrant. After the defendant was booked, he apparently received a property receipt indicating the items seized by the officers. The government conceded during prior oral argument that at no time before, during, or immediately after the search did the officers serve a search warrant on the defendant. It appears that the defendant was first provided with the search warrant as part of the government's discovery obligations.

In his motion to suppress evidence, the defendant argued that the Notice of Service was inadequate under Federal Rule of Criminal Procedure 41(f) ("Rule 41") and the Fourth Amendment. The argument regarding Rule 41 was premised on the contention that the investigation had been "federal in character." On October 18, 2004, after determining that the investigation had not been federal in character and that Rule 41 did not apply, the Court denied the defendant's motion to suppress. The Court granted the defendant leave to submit supplemental briefing, which was filed with the Court on October 22, 2004.

On November 1, 2004, the defendant filed a motion for reconsideration of the order denying the motion to suppress evidence. The Court denied this motion on December 1, 2004.

On December 21, 2004, a jury convicted the defendant on all three counts of the indictment.²

On December 27, 2004, the defendant filed a second motion for reconsideration of the order denying the motion to suppress evidence. In his reply brief to that motion, the defendant cited the recent ruling in United States v. Martinez-Garcia, 397 F.3d 1205 (9th Cir.2005), a decision that postdated the defendant's convictions. In Martinez-Garcia, the Ninth Circuit stated that the failure of state officers to serve a warrant at any time before, during, or immediately after a search of a home may be presumptively unreasonable. Id. at 1212 n. 3. This was the first time that the Ninth Circuit had clearly applied the notice requirement of the Fourth Amendment's Warrant Clause to state officers. The panel did not set an absolute notice requirement but rather balanced the privacy concerns of the public and the need to give notice with the sometimes competing need for flexibility that permits the police to perform their public safety duties effectively. Id. at 1211. In the absence of any such safety and practicality concerns, the Ninth Circuit indicated that failure to serve a warrant is "presumptively unreasonable." Id. at 1212 n. 3.

In an order filed on March 23, 2005, this Court applied Martinez-Garcia to the search at issue and found that there had been no showing that it was impracticable or imprudent for the officers to serve the warrant on the defendant during or immediately after the search. The Court held that the failure of the officers to serve the search warrant was unreasonable and violated the Fourth Amendment. It found that the evidence obtained during the June 2, 2004 search of the defendant's apartment should have been suppressed.

The government now brings this motion for reconsideration of the March 23, 2005 order. In its motion, the government makes three arguments. First, it argues that the search was reasonable under the totality of the circumstances despite the failure of the officers to present the defendant with the warrant. Second, the government argues that the evidence should not be suppressed because the officers, in not presenting the warrant, acted pursuant to a good faith reliance on the guidelines contained in the County of Los Angeles's Search Warrant Manual and prior state court rulings. Finally, the government for the first time presents evidence that, at the time of the search, the defendant was on probation and subject to warrantless searches of his person and property.

II. Discussion

A. Motion for Reconsideration

While the Federal Rules of Criminal Procedure do not contain a provision specifically allowing motions for reconsideration, numerous circuit courts have held that motions for reconsideration may be filed in criminal cases. See United States v. Martin, 226 F.3d 1042, 1047 n. 7 (9th Cir.2000) (post-judgment motion for reconsideration may be filed in a criminal case and governed by Fed.R.Civ.P. 59(e)); United States v. Fiorelli, 337 F.3d 282, 286 (3d Cir.2003) (motion for reconsideration allowed in criminal case and governed by Fed.R.Civ.P. 59(e) or Fed.R.Civ.P. 60(b)); United States v. Clark, 984 F.2d 31, 33-34 (2d Cir.1993) (motion for reconsideration filed in criminal case within 10 days of subject order is treated under Fed.R.Civ.P. 59(e)).

The purpose of a motion under Rule 59(e) is to "correct manifest errors of law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985). See also 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir.1999) (relief under Rule 59(e) "should not be granted ... unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law"). A motion for reconsideration is not to be used as a means to reargue a case or to ask a court to rethink a decision it has made. It is not a substitute for an appeal. See, e.g., Waye v. First Citizen's Nat'l. Bank, 846 F.Supp. 310, 314 (M.D.Pa.1994). These civil procedure precepts also govern a motion for reconsideration made in a criminal case. United States v. Lee, 82 F.Supp.2d 389, 390-91 n. 4 (E.D.Pa.2000); United States v. Palm Beach Cruises, S.A., 204 B.R. 634, 639 n. 1 (S.D.Fla.1996).

B. Reasonableness of the Search Absent Service of the Warrant

The government first argues that the June 2, 2004 search of the defendant's residence was reasonable under the totality of circumstances. This argument was already addressed in the Court's previous order. However, because the notice requirement issue was clearly raised for the first time in the defendant's reply to that motion, the Court revisits this issue here to address the government's argument.

The government argues that "as a practical matter, defendant received notice that fulfilled the purposes of the Fourth Amendment," and that this rendered the execution of the search reasonable. (Govt's Mot. at 8.) In support of this position, the government asserts that the officers explained to the defendant that they were conducting the search pursuant to a valid search warrant, presented him with the Notice of Service, and informed him that they were looking for evidence of drug trafficking. The government's position appears to be that so long as the executing officers are in possession of a valid warrant and they give the suspect verbal notice of this fact and the warrant's limitations, then the government need not serve the defendant with the warrant even in the absence of practicality or safety concerns. The Ninth Circuit expressly rejected this position in Ramirez v. Butte-Silver Bow County, 298 F.3d 1022 (9th Cir.2002). In that case, the court held that an officer's verbal description of the items sought pursuant to the warrant failed to cure a flaw in the warrant. Id. at 1026-27. The panel cited United States v. Gantt for the proposition that "[c]itizens deserve the opportunity to calmly argue that agents are overstepping their authority or even targeting the wrong residence." 194 F.3d 987, 991 (9th Cir.1999). This type of exchange "is impossible if citizens must rely on officers' verbal representations of the scope of their authority. To stand a real chance of policing the officers' conduct, individuals must be able to read and point to the language of a proper warrant." Ramirez, 298 F.3d at 1027.

The defendant never received the warrant before, during, or immediately after the search. Absent service of the warrant, he had no adequate notice of the legal authority that authorized the search. He had no adequate notice of the subject residence and the items searched for. It appears that the defendant was first provided with the warrant as part of the government's discovery obligations, long after the completion of the search. Although the government had the authority to search the defendant's home pursuant to a valid search warrant, it was still required to comply with the notice requirement of the Fourth Amendment. Martinez-Garcia, ...