United States District Court, E.D. Kentucky, Northern Division, Covington
L. Bunning United States District Judge.
matter is before the Court on Defendant's Motion to
Reconsider the Court's previous Memorandum Opinion and
Order (Doc. # 60) denying Defendant's Motion to Suppress.
(Doc. # 67). The Government has now filed its response (Doc.
# 69), and Defendant's Motion is ripe for the Court's
review. For the reasons set forth below, the Motion is
Motion to Reconsider (Doc. # 67), Defendant asserts that the
Court should reconsider its September 18, 2018 Memorandum
Opinion and Order (Doc. # 60) denying his Motion to Suppress
(Doc. # 15). Defendant's Motion centers on his
disagreement with the Court's application of the
inevitable discovery doctrine. (Doc. # 67 at 2)
(“Defendant argues that [the] Court's conclusion in
§C of the Court's Opinion and Order is
incorrect”). He argues that the Court got it wrong when
it found that, even if Officer Ullrich's search of
Defendant's person were unconstitutional, the inevitable
discovery doctrine would apply based upon the marijuana
located during the officer's lawful search of
Defendant's vehicle, and the methamphetamine found on
Defendant's person would have inevitably been located in
the course of Defendant's subsequent arrest for marijuana
possession. Defendant urges the Court to retract its
application of the doctrine, and to then reach the merits of
his argument-set forth in his Memorandum in Support of Motion
to Suppress Evidence (Doc. # 47)-that Officer Ullrich's
search of Defendant's person violated the constitutional
standard for strip searches set forth by the Supreme Court in
Bell v. Wolfish, 441 U.S. 520 (1979).
Motion fails for three reasons. First, it is procedurally
improper. Second, the Court properly applied the inevitable
discovery doctrine. Finally, the search of Defendant's
person was not an unconstitutional strip search pursuant to
Bell v. Wolfish. The Court will address each of
these reasons in turn.
Defendant failed to meet the standard for
Motion to Reconsider is procedurally improper. The Federal
Rules of Criminal Procedure make no provision for a motion to
reconsider. See United States v. Baker, No.
09-20068, 2011 WL 13142576, at *2 (W.D. Tenn. Dec. 1, 2011);
United States v. Hopewell, No. 08-cr-065, 2009 WL
1026452, at *1 (S.D. Ohio Apr. 15, 2009). “[C]ourts
adjudicating such motions 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. Jarnigan, No.
3:08-CR-7, 2008 U.S. Dist. LEXIS 101768, at *2 (E.D. Tenn.
Dec. 17, 2008). Pursuant to this standard, a court may grant
a motion to alter or amend judgment only if there was
“(1) a clear error of law; (2) newly discovered
evidence; (3) an intervening change in controlling law; or
(4) a need to prevent manifest injustice.” ACLU of
Ky. v. McCreary Cty., 607 F.3d 439, 450 (6th Cir. 2009)
(internal citations omitted). A motion to reconsider
“should not be used to revisit issues already
addressed” and “is not a second chance for the
losing party to make its strongest case or to dress up
arguments that previously failed.” United States v.
Huff, 782 F.3d 1221, 1224 (10th Cir. 2015). Accord
Baker, 2011 WL 13142576, at *2 (“[A] motion for
reconsideration should not be used to reiterate arguments
that have been made previously.”) (citing United
States v. Diaz, No. 09-CR-037, 2010 WL 5677193, at *7
(N.D.Ga. Dec. 30, 2010)).
Defendant seeks to relitigate a losing argument based on his
disagreement with the Court's ruling. He cannot point to
a change in the law or new evidence to justify his Motion.
Instead, he asks the Court to reconsider its prior Memorandum
Opinion and Order because he believes it was in error. But
Defendant does not plow new ground, and merely resurrecting
old arguments does not persuade the Court that its prior
ruling was incorrect. Upon the final resolution of this case,
if Defendant is dissatisfied and still believes that it was
an error to deny his Motion to Suppress, he is free to appeal
this Court's decision to the Sixth Circuit. Until such
time, Defendant's requests for relief are procedurally
The Court properly applied the inevitable discovery
next argues that the Court erred in concluding that the
evidence seized from the search of Defendant's person
would inevitably have been discovered during a search
incident to arrest. (Doc. # 67 at 2) (citing Doc. # 60 at
17). Defendant does not dispute the Court's analysis
pursuant to the inevitable discovery doctrine, but rather
disputes the Court's underlying factual finding that the
search of Defendant's vehicle yielded marijuana.
See (Doc. # 67 at 2) (“The problem with this
is there is only a mention of marijuana and there is no
marijuana charge that was filed and there is no drug test for
the marijuana to believe that any marijuana was ever
found.”). Defendant offers nothing in support of this
Court's review of the record and the evidence presented
at the evidentiary hearing supports the Court's finding
that the officers found and seized loose marijuana on the
floor of Defendant's vehicle, giving them probable cause
to arrest the Defendant. See, e.g., (Doc. # 46 at
27, 36, 60; Govt. Ex. 2 at 05:43:19-05:46:59). The record
shows that, contrary to Defendant's assertion in his
Motion to Reconsider that “there is no marijuana charge
that was filed, ” defense counsel's own
cross-examination of Officer Ullrich reveals that “the
citation goes on to say he's charged with trafficking and
possession of marijuana.” (Doc. # 46 at 34-36; Doc. #
45 at Def. Ex. 1; Doc. # 69-1 at 1). Indeed, the citation
shows that Defendant was charged with, inter alia,
possession of marijuana in violation of Kentucky Revised
Statute 218A.1422, a Class B misdemeanor under Kentucky law
punishable with up to a forty-five-day term of incarceration.
(Doc. # 69-1 at 1); Ky. Rev. Stat. § 218A.1422. Defense
counsel did not challenge the veracity of the marijuana
charge during the evidentiary hearing, focusing instead on
the timing of the vehicle search. See (Doc. # 46 at
search of Defendant's vehicle resulted in the seizure of
marijuana. This permitted the officers to arrest the
Defendant and perform a full search of his person. Defendant
has offered no new evidence or authority to warrant
reconsideration or alter the Court's finding on this
point. Accordingly, Defendant's arguments are clearly
The search of Defendant's person was not an
unconstitutional strip search pursuant to Bell v.
Defendant argues that “the Court failed to address the
Bell v. Wolfish Guidelines in determining whether
this was a strip search or a type of search that is
prohibited by the constitution” pursuant to the
framework set forth by the Supreme Court in Bell.
(Doc. # 67 at 1) (citing Bell v. Wolfish, 441 U.S.
520 (1979)). Specifically, Defendant argues that the search
was unreasonable because it occurred on the street in public
view and extended in scope to a search inside his pants and
underwear. (Doc. # 47 at 3-4). In support of his argument,
Defendant relies on three distinguishable cases. See
(Doc. # 67 at 1) (citing Illinois ...