MIRANDA M. DU, District Judge.
Joel Ralph Turnbow was charged with felon in possession of a firearm, possession with intent to distribute methamphetamine, and conspiracy to possess with intent to distribute methamphetamine—based on drugs and a gun found in a backpack in the trunk of a car he was driving when he was arrested on a misdemeanor arrest warrant, following an inventory search of the car. Following an evidentiary hearing (the "Hearing"), the Court granted Turnbow's motion to suppress the drugs and gun found in the car. (ECF No. 69 ("Suppression Order").) Before the Court is the government's motion for reconsideration of the Suppression Order (the "Motion").
The Court refers to the Suppression Order for the facts relevant to the government's Motion. (ECF No. 69 at 2-5.) As pertinent here, the Suppression Order noted that the government never proffered a Vehicle Inventory Report (the "Report") corresponding to Sergeant English's inventory search of the car at issue. (Id. at 4, 12.) However, as the government pointed out in its Motion, Sergeant English did prepare such a report. (ECF Nos. 73 at 2-3, 73-1 (Report).)
"No precise "rule" governs the district court's inherent power to grant or deny a motion to reconsider a prior ruling in a criminal proceeding." United States v. Lopez-Cruz, 730 F.3d 803, 811 (9th Cir. 2013). "Rather, the district court's authority to revisit a ruling on a suppression motion is within its sound judicial discretion." Id. (internal quotation marks and citation omitted). Argument or evidence that could have been raised in connection with a motion to suppress, but was not, will not justify reconsideration. See id.
This Court and other courts look to the standard governing motions for reconsideration in civil cases for guidance in ruling on motions for reconsideration in criminal cases. See, e.g., United States v. Hector, 368 F.Supp.2d 1060, 1063 (C.D. Cal. 2005), rev'd on other grounds, 474 F.3d 1150 (9th Cir. 2007); see also United States v. Ritchie, Case No. 2:15-cr-00285-APG-PAL, 2018 WL 6579181, at *4 (D. Nev. June 20, 2018), report and recommendation adopted, Case No. 2:15-cr-00285-APG-PAL, 2018 WL 6580954 (D. Nev. Dec. 13, 2018).
In civil cases, a motion to reconsider must set forth "some valid reason why the court should reconsider its prior decision" and set "forth facts or law of a strongly convincing nature to persuade the court to reverse its prior decision." Frasure v. United States, 256 F.Supp.2d 1180, 1183 (D. Nev. 2003). Reconsideration is appropriate if this Court "(1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). But "[a] motion for reconsideration is not an avenue to re-litigate the same issues and arguments upon which the court already has ruled." Brown v. Kinross Gold, U.S.A., 378 F.Supp.2d 1280, 1288 (D. Nev. 2005) (citation omitted).
The government's arguments in its Motion do not fit neatly within the framework governing motions for reconsideration in the civil context. Regardless, the government makes two arguments as to why the Court should reconsider the Suppression Order: (A) the Court applied the wrong legal standard in the Suppression Order; and (B) the Report existed and was produced to defense counsel in discovery. (ECF No. 73 at 2.) While the Court is persuaded by neither, it addresses both below.
The government first argues that the Court applied the wrong legal standard in the Suppression Order. (ECF Nos. 73 at 2, 79 at 2.) Defendants implicitly respond that the Court applied the correct legal standard in arguing that the government bears the burden to show a warrantless search passes Fourth Amendment muster. (ECF No. 78 at 4.) The Court disagrees with the government that it applied incorrect legal standard in the Suppression Order, and reaffirms that even if the Court reexamined the Suppression Order to more clearly place the burden on Defendants to prove Sergeant English's inventory search was pretextual, the Court would not have reached a different result.
First, the Court applied the correct legal standard. Warrantless searches are "per se unreasonable" under the Fourth Amendment. Katz v. United States, 389 U.S. 347, 357 (1967). That means the default rule is law enforcement must get a warrant before conducting a search, unless an exception applies. Here, the government argued that the inventory search exception applied. The Court correctly stated in the Suppression Order that the "government bears the burden of showing that a warrantless search or seizure falls within an exception to the warrant requirement" (ECF No. 69 at 10 (citing U.S. v. Huguez-Ibarra, 954 F.2d 546, 551 (9th Cir. 1992)), and found that "the government has not met its burden to show that the circumstances here fall within the inventory search exception to the warrant requirement" (id.). A pretextual inventory search does not fall within the inventory search exception to the warrant requirement. See U.S. v. Johnson, 889 F.3d 1120, 1125 (9th Cir. 2018) ("The search cannot be `a ruse for a general rummaging in order to discover incriminating evidence.'") (citation omitted). Because the Court found in the Suppression Order that the search at issue here was pretextual, the government failed to carry its burden to show an exception to the warrant requirement applied.
Second, even if the Court were to reexamine portions of its analysis to more clearly place the burden of showing the search was pretextual on Defendants, the Court would have—and does—reach the same result it reached in the Suppression Order. In this modified analysis, the Court begins with the presumption that the inventory search was not pretextual. However, this presumption is overcome by Sergeant English's testimony. Specifically, there is a line running through Sergeant English's testimony indicating he was suspicious Defendants were engaged in drug-related activity from the moment he saw them, and thus the inventory search was a pretext to look for drugs. His initial interest was sparked by the fact that Turnbow was driving a Honda, and Method made eye contact with him and then looked away. (ECF No. 76 at 30-31.) He requested a K-9 unit because he thought Method was trying to conceal something as he pulled them over. (Id. at 85.) The K-9 unit's dog ran around and inside the car before Sergeant English began the inventory search, but did not alert. (Id. at 43, 98.) Further, Sergeant English testified at the Hearing that he called a K-9 unit in an attempt to establish probable cause to search the car more extensively than he could have pursuant to an inventory search. (Id. at 43-45.) This evidence, along with other evidence discussed both in the Suppression Order and below, tends to show the inventory search was pretextual, even if the Court begins from the presumption it was not. Thus, the Court is not persuaded by this argument and declines to reconsider the Suppression Order on this basis.
The government also argues the Court should reconsider its analysis in the Suppression Order because Sergeant English did complete the Report. (ECF Nos. 73 at 2, 79 at 2-3.) If the Court had known the Report existed, the government argues, the Court would have denied Turnbow's motion to suppress. (ECF No. 73 at 2-3.) Defendants counter that the absence of the Report was just one circumstance that the Court considered amongst the totality of the circumstances, and having the Report in evidence would not have changed the Court's decision as reflected in the Suppression Order. (ECF No. 78 at 4.) Defendants further argue that the Court never said the Report was never written in the Suppression Order, but instead merely noted the government had not proffered it to the Court, which raised the possibility it was not written. (Id. at 2.)
The Court had incorrectly assumed that the Report was not prepared, but finds this fact does not change its ultimate decision to grant Turnbow's motion to suppress as reflected in the Suppression Order.
Notably, Sergeant English called for a K-9 unit who conducted a dog sniff of the car before he initiated the inventory search—which is not normally part of an inventory search. (Id. at 11.) Most notably, Sergeant English testified at the hearing that he called for a K-9 unit because he wanted to establish probable cause to search for drugs in the car, which would have allowed him to search the car more extensively than he would have been able to pursuant to the inventory search. (Id. at 11.) Thus, even with any reference to the apparently missing Report removed, the Court would have reached the same decision—the inventory search was pretextual—that it reached in the Suppression Order.
Further, like in Johnson, the Court weighted Sergeant English's testimony at the Hearing, including about why he called for a K-9 unit, more heavily than the absence of the Report in the Suppression Order—and stands by that weighing of the evidence today. (ECF No. 69 at 11-14.) See also Johnson, 889 F.3d at 1127 (noting that defendant argued police did not comply with their inventory policy, but stating the Ninth Circuit did not need to consider that evidence "because the officers themselves explicitly admitted that they seized items from the car in an effort to search for evidence of criminal activity.") Thus, the evidence the Court found more persuasive in determining that the inventory search was pretextual was evidence the Court properly should have, and did, weigh more heavily in its analysis than the presumed absence of the Report. The absence of the Report was not a key piece of evidence in terms of its influence on Court's decision in the Suppression Order. It was a supporting piece of evidence.
That said, the Court should not have permitted Method's counsel to raise the absence of the Report for the first time in her closing argument at the Hearing
The Court notes that the parties made several arguments and cited to several cases not discussed above. The Court has reviewed these arguments and cases and determines that they do not warrant discussion as they do not affect the outcome of the government's Motion.
It is therefore ordered that the government's motion for reconsideration (ECF No. 73) is denied.