United States District Court, E.D. Kentucky, Central Division, Lexington
OPINION AND ORDER
KAREN K. CALDWELL, Chief District Judge.
On February 25, 2013, Lexington police officers responded to a 911 call reporting that a woman was lying unresponsive in her bed. When officers arrived and found that the woman was dead, they remained to secure the scene until the coroner arrived to conduct a cause-ofdeath investigation. While securing the scene, the officers observed items that were-in their experience-consistent with drug trafficking. Later, they obtained a search warrant. The defendant asserts that before the coroner arrived, the officers performed an illegal warrantless search of the residence and then used the illegally obtained evidence in support of the search warrant. Accordingly, the defendant seeks to suppress all evidence obtained from the search. The United States maintains that the officers' initial search of the residence was necessary to secure the scene and to preserve possible cause-of-death evidence. The United States also contends that the defendant has failed to prove that the officer's affidavit contained any material misrepresentation and that the evidence would have inevitably been discovered.
For reasons stated below, the Court will not suppress the contents of the search.
I. PROCEDURAL BACKGROUND
The procedural posture leading to the instant motion is worthy of examination. On January 14, 2014, one week before trial was scheduled to begin and well past the courtimposed deadline for filing suppression motions, Defendant Rodriguez-Flores filed a motion to suppress. The defendant offered no explanation for his late filing. Three days later, the United States responded in opposition to the motion arguing, among other things, that the defendant lacked standing to assert the motion because the residence was owned by a third party. On the original January 22 trial date, the Court conducted a hearing at which it granted the defendant's motion for a continuance until June 9, 2014 so that defense counsel could fully brief the suppression motion and have adequate time to prepare for trial. Defense counsel represented that he would file a reply brief addressing the suppression motion no later than the following day. But defense counsel never filed a reply brief. See United States v. Smith, 263 F.3d 571, 582 (6th Cir. 2001) (holding that a defendant has the burden of establishing his standing to assert a Fourth Amendment violation). After three months elapsed, the Court considered the merits of the motion and determined that Rodriguez-Flores lacked standing to contest the search. (DE 303). Because the Court determined that Rodriguez-Flores lacked standing, the Court did not evaluate any other claims.
Two days later, on April 24, 2014, the Court held a pretrial conference in anticipation of the looming June 9 trial date. Without any reference to the Court's ruling on the suppression motion, defense counsel made an oral motion to continue the trial. The Court denied the motion but informed defense counsel that it would reconsider the request upon articulation of specific reasons necessitating further delay. Defense counsel never provided the Court with further reasons, but the trial was later continued until August 11, 2014 upon a codefendant's motion in which Rodriguez-Flores joined.
More than sixty days after the court denied the defendant's suppression motion, the defendant requested leave to file a motion to set aside the suppression order. (DE 413). In an affidavit, defense counsel stated that during "the months of January through May, [he] was dealing with a particularly difficult client in a CJA assigned case in the Western District of Kentucky, " and preparing for a complicated jury trial scheduled to begin on May 6. (DE 413-1, ¶ 7). On April 28, however, the complicated jury trial was continued until August 5, 2014. (DE 413-1, ¶ 7). Counsel further explained that his heavy case load combined with complicated discovery caused his untimeliness, and he asked the Court not to punish the defendant because of counsel's missteps.
Rodriguez-Flores's motion to set aside the Court's order (DE 414) is simply a reply to the defendant's earlier suppression motion. Rodriguez-Flores asserts that he has standing to contest the search warrant and, as evidence, cites that investigators knew that the defendant lived in the house and repeatedly referred to the house as his residence. The defendant argues that this evidence conclusively establishes his standing because he had a legitimate expectation of privacy as either a resident or an overnight guest in the dwelling. The defendant further argues that a hearing would be required to resolve the issue. All of these arguments could have, and should have, been raised in the context of his original suppression motion. Nevertheless, to avoid any possible prejudice to the defendant, the Court conducted an evidentiary hearing on August 4 and 5, 2014. At the hearing, the Court determined that the defendant's motion to suppress fell-at least in part-within the scope of Franks v. Delaware, 438 U.S. 154 (1978), because the defendant appeared to challenge the veracity of the affidavit supporting the search warrant. The defendant informed the Court that he was not prepared to bear the burden of proof as required by Franks because he thought his challenge was limited to the initial warrantless search. The defendant had not, however, subpoenaed a single witness, including those necessary to prove his standing to challenge the search warrant.
Although the Court was skeptical of the defendant's theory, it directed the United States to proceed as if the defendant had challenged a warrantless search. The United States obliged. The presentation of proof by the United States lasted until the end of the day on August 4, at which time the Court continued the hearing until the following day to allow the defendant to call witnesses to rebut the United States, prove his standing to challenge the search warrant, or satisfy his burden under Franks.
Accordingly, by the end of the day on August 5, both the United States and the defendant had called all relevant witnesses and presented any evidence concerning both the defendant's claim that the officers conducted a warrantless search and any possible challenge under Franks. The Court then took the defendant's motion under advisement.
II. LEGAL STANDARD FOR MOTION TO SET ASIDE
The Court construes Rodriguez-Flores's motion to set aside as one for reconsideration. The Federal Rules of Criminal Procedure do not account for motions to reconsider, and lacking any procedural rule otherwise, "[c]ourts adjudicating motions to reconsider in criminal cases typically evaluate such motions under the same standards applicable to a civil motion to alter or amend judgment pursuant to Fed.R.Civ.P. 59(e)." United States v. Titterington, No. 2-20165, 2003 WL 23924932, at *1 (W.D. Tenn. May 22, 2003) (citing United States v. Thompson, 125 F.Supp.2d 1297, 1300 (D. Kan. 2000)) (collecting cases). Accordingly, such a motion would need to "be filed no later than 28 days after the entry of the" order, and comply with the standards under Rule 59(e). Fed.R.Civ.P. 59(e). As noted above, the instant motion was filed more than sixty days after the original order.
Crucially, a motion to reconsider under Rule 59(e) can be made for one of only four reasons: (1) to correct a clear error of law; (2) to account for newly discovered evidence; (3) to address an intervening change in controlling law; or (4) or to prevent manifest injustice. Leisure Caviar, LLC v. U.S. Fish & Wildlife Serv., 616 F.3d 612, 615 (6th Cir. 2010). The defendant does not attempt to explain why any of these four circumstances apply. The defendant simply uses his motion as an opportunity to reply to the standing issue, but a motion to set aside "is not an opportunity to re-argue a case." See Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998). Because a defendant's freedom is at stake and in an abundance of caution, however, the Court will consider the merits of the defendant's motion. Thus, the record will reflect that the defendant has been given every benefit from this process.
III. UNDERLYING FACTS
On the morning of February 25, 2013, Lexington Police Officer Bryan Tolson was dispatched to 1404 Pleasant Ridge Drive to assist the fire department in responding to a 911 call regarding an unresponsive, twenty-five-year-old woman. He arrived at approximately 8:30 a.m. and found the fire department on the scene. Tolson entered the residence where he observed the victim, Lacee Heavener, lying on her bed. He also observed large amounts of currency spread throughout the bedroom, including a purse full of cash near her body.
Soon after Tolson's arrival, the fire department left to transport Heavener to the hospital. Tolson followed. He left the residence unsecured, and contacted his supervisor to inform him of the circumstances. Tolson testified at the hearing that he was not able to secure each room of the house prior to leaving. Because the residence was left empty and the circumstances surrounding Heavener's death were unknown, ...