Petition for Writ of Certiorari — United States v. Ibarra

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In the Supreme Court of the United States

OCTOBER TERM, 1990

UNITED STATES OF AMERICA, PETITIONER

Vv.

ALEJANDRO GARCIA IBARRA

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, ITI

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

HARRIET S. SHAPIRO

Assistant to the Solicitor General

DEBORAH WATSON

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

BEST AVAILABLE COPY”

QUESTION PRESENTED

Whether the time to file an appeal of a suppression

order runs from the denial of a timely filed motion

to reconsider that order, even when the motion to

reconsider is based on a previously conceded theory

of admissibility.

(1)

TABLE OF CONTENTS

Page

Opinions below ..... 12 NS Diets ieeakiamieatiaitins 1

i caniccsenaes acetate eal antemtansubiiiti 1

i EE. cesesecnousctsoccoonncsoosouess 2

Ee ..sneupeunusunonesesvoosaesen 2

Reasons for granting the petition .................................... 8

Er 17

ETE la

Ee 19a

ieee ccsnenenstiorcnsonenarccces RE ete 29a

i ss seesesensentonsensncoonecesnsocons 5la

TABLE OF AUTHORITIES

Cases:

Bowman V. Loperena, 311 U.S. 262 (1940) ........... 13

Communist Party of Indiana v. Whitcomb, 414

EE 13

Department of Banking v. Pink, 317 U.S. 264

ao strccteatensenscusecesaneesos 13, 15, 16

Government of Virgin Islands v. Josiah, 641 F.2d

ER 9

United States v. Dieter, 429 U.S. 6 (1976)........ 6, 7, 8, 12,

13, 15

United States v. Healy, 376 U.S. 75 (1964) ........... 13

United States v. Ladson, 774 F.2d 436 (11th Cir.

I. sastneteoucsoosocoos 16, 17

United States v. Lisk, 522 F.2d 228 (7th Cir.

1975), cert. denied, 423 U.S. 1078 (1976) _...... i)

United States v. Marsh, 700 F.2d 1322 (10th Cir.

as sseusenoncsocsoess 14

United States v. Rothseiden, 680 F.2d 96 (11th

a seesenueee SO 14

United States v. Smith, 621 F.2d 483 (2d Cir.

1980), cert. denied, 449 U.S. 1086 (1981) ......... 9

United States v. Smith, 781 F.2d 184 (10th Cir.

a _.__ scusmasemasonscnossocs 7

Cases—Continued : Page

United States v. Tortorello, 533 F.2d 809 (2d Cir.),

cert. denied, 429 U.S. 894 (1976) 00000. 9

Statute and rules:

Criminal Appeals Act, 18 U.S.C. 3731-00000... 2,12

Fed. R. App. P.:

Rule 4(a) ............ sahanhiséensiientienmnannsiiaaddanddienitaiiads 8

I 2, 8,13

I I I I cecil callable acta clea 13

Miscellaneous:

R. Stern, Appellate Practice in the United States

SIE SESS OPW eT Sam VOnA SD ENA A) WN Ps OT 8,13

R. Stern, E. Gressman & S. Shapiro, Supreme

Court Practice (6th ed. 1986) ............000000 0. 13

United States Attorneys’ Manual (1988) :

I ete eel 11

I IEPIIIIIIIEE scidncidtisisndpndiseacianindsiiiaesaaiaaniinsiamdiesnati 11

Gu the Supreme Cont of the United States

OCTOBER TERM, 1990

No.

UNITED STATES OF AMERICA, PETITIONER

Vv.

ALEJANDRO GARCIA IBARRA

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Tenth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra,

la-18a) is reported at 920 F.2d 702. The district

court opinions (App., infra, 19a-50a) are reported at

731 F. Supp. 1037 and 725 F. Supp. 1195.

JURISDICTION

The judgment of the court of appeals was entered

on December 3, 1990. A petition for rehearing was

denied on February 12, 1991 (App., infra, 5la-52a).

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

(1)

STATUTE AND RULE INVOLVED

1. 18 U.S.C. 3731 provides in pertinent part:

An appeal by the United States shall lie to a

court of appeals from a decision or order of a

district court[] suppressing or excluding evi-

dence * * *,

* * * * *

The appeal in all such cases shall be taken

within thirty days after the decision, judgment

or order has been rendered and shall be dili-

gently prosecuted.

The provisions of this section shall be liberally

construed to effectuate its purposes.

2. Federal Rule of Appellate Procedure 4(b) pro-

vides in pertinent part:

When an appeal by the government is authorized

by statute, the notice of appeal shall be filed in

the district court within 30 days after the entry

of (i) the judgment or order appealed from or

(ii) a notice of appeal by any defendant. A

judgment or order is entered within the mean-

ing of this subdivision when it is entered in the

criminal docket.

STATEMENT

1, On March 24, 1989, Wyoming Highway Patrol-

man Scott Mahaffey saw a car with California tags

weaving along an interstate highway. He stopped

the car to determine whether the driver was intoxi-

cated. Respondent, who was driving, did not appear

to be intoxicated, but Officer Mahaffey discovered

that respondent was driving with a suspended li-

cense. The license of his passenger, Maria Linares,

was also suspended. Respondent produced a Califor-

nia registration certificate for the car in the name of

Charles Joseph Petrocchi, explaining that he had pur-

chased the car from Petrocchi two days earlier; he

could not produce a bill of sale, however, and the

ownership transfer portion of the registration certifi-

cate was not filled in. App., infra, 29a-30a; Tr. 6,

9-12, 15, 20, 37, 99."

Mahaffey gave respondent a ticket for operating

a motor vehicle with a suspended license, which re-

quired respondent to post a $220 appearance bond.

After giving Mahaffey $220 for the bond, respondent

stated that he had only about $40 left with which

to reach Chicago. App., infra, 30a-31la; Tr. 18-21,

24, 71. In further discussion about his destination,

respondent gave inconsistent answers to Mahaffey’s

questions and finally asserted that he was moving to

Chicago, although he appeared to be “traveling

‘light’ ” (App., infra, 31a).

At that point, Mahaffey’s suspicions were aroused,

and he asked respondent whether the car contained

weapons, large amounts of money, or controlled sub-

stances. When respondent said no, Mahaffey re-

quested and received permission to search the car,

and respondent unlocked the trunk. While Mahaffey

searched the passenger compartment, Patrolman Gre-

gory Leazenby (who had arrived on the scene while

Mahaffey was questioning respondent) searched the

trunk. Respondent’s car and the patrol cars were

parked on a narrow shoulder at a sharp curve in the

highway where there had been several accidents; an-

other accident had nearly occurred during the offi-

cers’ investigation. Because of his concerns about

safety, Mahaffey conducted only a brief search by

1“Tr.” refers to the transcript of the hearing on the motion

to suppress held on Sept. 12, 1989.

the highway. App., infra, 3la; Tr. 20-23, 88-89; 91-

92, 107.

In light of all the circumstances, Mahaffey de-

cided to impound the car, and he arranged for a pri-

vate towing service to tow it into Laramie, a short

distance away. App., infra, 3la-32a; Tr. 23-27, 93-

94, 107-109. As the officers drove respondent and

Linares to the Western Union office in Laramie so

that they could wire for more money and arrange for

someone to drive the car, Mahaffey reached Petrocchi’s

wife on his radio, and she informed him that her

husband had sold the vehicle to respondent two weeks

earlier. Mahaffey also learned that respondent had

no liability insurance for the vehicle, although lia-

bility insurance is required for driving in Wyoming.

App., infra, 32a; Tr. 27-28, 102-103.

The officers left respondent and Linares at the

Western Union office and went to the towing service

lot. En route, Leazenby told Mahaffey that he had

seen “a small plastic bag or something” protruding

from underneath the spare tire in the trunk. Tr. 90.

At the towing service lot, Mahaffey started an inven-

tory of the car’s contents by removing all the items

from the trunk. Mahaffey later testified that he be-

lieved he “was operating under a continuance of con-

sent.” Tr. 28-29, 105-106. As Mahaffey was empty-

ing the trunk, he noticed a plastic bag behind the

spare tire. He removed the tire and found a large

package wrapped with duct tape. Through a cut in

the tape he saw a white powdery substance, which

turned out to be cocaine. App., infra, 32a; Tr. 29-31.

Mahaffey ceased his search of the vehicle, notified

the Drug Enforcement Administration (DEA) and

the Wyoming Division of Criminal Investigation

(DCI) of his discovery, and relinquished custody of

the vehicle to officials of those agencies. Leazenby

returned to the Western Union office and arrested

respondent and Linares. After being advised of his

Miranda rights, respondent admitted to a DCI agent

that he was transporting cocaine to Chicago. App.,

infra, 32a; Tr. 30, 61, 99, 112-113.

2. Respondent was indicted by a federal grand

jury for possession of cocaine with the intent to dis-

tribute it. He filed a pretrial motion to suppress all

the evidence seized during the search as well as his

statement to the DCI agent, asserting that the stop

of his vehicle was pretextual; that his consent to the

search was involuntary and was, in any event, with-

drawn prior to the second search; and tha: the sec-

ond search was not made pursuant to a lawful inven-

tory procedure. In opposition to the motion, the

government defended the legality of the stop and the

impoundment, and argued that the cocaine would in-

evitably have been discovered once Mahaffey con-

ducted his planned inventory search. App., infra,

33a, 44a-45a. The government originally asserted

that the search of the car at the towing service lot

was made nursuant to respondent’s continuing con-

sent, but it later abandoned that argument, stating

that ‘‘additional search has failed to provide legal

support for this position, and the argument is con-

ceded.” App., infra, 21a.

After an evidentiary hearing, the district court

granted respondent’s motion to suppress on Novem-

ber 15, 1989. App., infra, 29a-50a. The court found

that the initial stop was lawful, but that an inven-

tory search was not reasonable, because there was

insufficient justification for taking custody of the

ear.” App., infra, 37a, 43a, 49a.

2 The district court noted the government’s concession that

the second search could not be justified under a continuing

consent theory. App., infra, 37a.

The Assistant United States Attorney handling the

case reported the adverse decision to the Criminal

Division of the Department of Justice. At the direc-

tion of the Criminal Division, the Assistant United

States Attorney on December 13, 1989, moved for

reconsideration of the suppression order, reasserting

the continuing consent rationale. On January 3,

1990, the district court denied reconsideration after

considering the argument on the merits. App., infra,

19a-28a. On January 30, 1990, the government filed

a notice of appeal. App., fra, 5a.

3. The court of appeals, by a divided vote, dis-

missed the appeal on the ground that it lacked juris-

diction to review the district court’s order. App.,

infra, la-18a. The court held that the 30-day statu-

tory time period in which to take an appeal ran from

the date of the initial order suppressing the evidence,

not from the date of the denial of reconsideration of

- that motion, because the government’s motion sought

only to raise a previously conceded issue.* For that

reason, the court held that the government’s notice

of appeal was jurisdictionally out of time. App.

infra, 1la.

The court of appeals distinguished United States

v. Dieter, 429 U.S. 6 (1976), in which this Court

held that the government has 30 days from the dis-

trict court’s denial of a timely filed motion for re-

consideration to appeal an order suppressing evidence

or dismissing an indictment. The court noted that

3 Although the court of appeals repeatedly referred to the

question at issue here as involving the “tolling” of the appeal

time, there is no suggestion that traditional tolling is involved.

Instead, the question is whether the district court’s denial of

the reconsideration motion is the final appealable order that

starts the time for appeal of the decision on the merits. For

convenience, we will follow the court of appeals’ practice in

referring to this as a question of tolling.

the motion in this case, unlike the motion in Dieter,

involved an attempt to raise a previously conceded

issue. The court found that distinction significant

because, it said, a concession is generally binding on

the party that makes it, and because the court had

previously indicated (in United States v. Smith, 781

F.2d 184 (10th Cir. 1986)), its disapproval of gov-

ernment efforts to raise previously conceded issues.

Accordingly, the court concluded, a motion raising

such an issue has very little likelihood of success and

is more likely to prolong the litigation process,

thereby “subvert[ing], rather than further[ing], the

concern for judicial economy.” App., infra, 9a. For

that reason, the court found that the government’s

motion attempting to withdraw a concession should

be equated with a successive motion for reconsidera-

tion, which does not toll the appeal time. App., infra,

6a-9a.

The court of appeals also concluded that Dieter was

not controlling because the government’s motion did

not ask the district court to correct an error of law

in its original opinion or to consider an argument pre-

viously made that it had not addressed, “[n]or did the

government in its motion cite contrary authority an-

nounced after it conceded the continuing consent is-

sue, sparing the parties and the appellate court the

burden of unnecessary appellate proceedings.” App.,

infra, 9a-10a. The court accordingly concluded that

the government’s motion did not toll the time for

taking an appeal, because it did not “ask ‘the Dis-

trict Court to reconsider [a] question decided in the

case’ in order to effect an ‘alteration of the rights

adjudicated.’” App., infra, 10a, quoting United

States v. Dieter, 429 U.S. at 9.

Judge Baldock dissented. He found the court’s

holding to be “plainly contrary to United States v.

Dieter.” App., infra, 12a. In his view, Dieter di-

rects that “we do not conduct a merits review of

every motion for reconsideration to insure that it

meets the salutary purposes of the rule which pro-

vides for tolling the time in which to take an appeal.”

[bid.

REASONS FOR GRANTING THE PETITION

The decision of the court of appeals creates uncer-

tainty in an area where it is essential to have a

bright-line rule capable of easy application. As a

result, the decision, which conflicts with the reason-

ing of another court of appeals, is likely to impair

the efficient administration of criminal proceedings

in the federal system and the effective management

of the government’s criminal litigation.

1. In civil cases, Fed. R. App. P. 4(a) specifically

provides that the time for filing a notice of appeal

runs from the entry of an order denying a motion for

reconsideration. The provision dealing with criminal

appeals, Fed. R. App. P. 4(b), contains no similar

language; nevertheless, United States v. Dieter, 429

U.S. 6 (1976), requires the same result in criminal

cases. See R. Stern, Appellate Practice in the United

States 96 (1981). The decision of the court of ap-

peals blurs this heretofore clear jurisdictional rule,

creating uncertainty about the circumstances under

which a reconsideration motion will toll the appeal

time. Because it requires a party considering

whether to file a motion for reconsideration to guess

about the time within which he must file an appeal if

his motion is unsuccessful—or simply not promptly

decided—it will deter the filing of such motions.

The Federal Rules of Criminal Procedure should

be applied to encourage the correct resolution of cases

at the district court level without the expenditure of

appellate resources. If a district court is willing to

reconsider an unwarranted initial determination on

the basis of a reconsideration motion, even one that

retracts an ill-considered concession, the system of

justice benefits by getting the case decided correctly

at the trial level, and perhaps avoiding an appeal.*

The system benefits even when the motion does not

avoid an appeal. Whether the court grants the re-

consideration motion, considers the new matter on

the merits before denying it, or denies the motion on

the ground that the prior concession should be bind-

ing under the circumstances, the court of appeals will

be able to resolve the case based on a fully developed

legal and factual record.

2. The court of appeals took a narrow view of

what constitutes a “proper motion for reconsidera-

tion,” and thus created a broad and ill-defined excep-

tion to the principle that the time for filing a notice

of appeal does not start to run until the denial of

a timely motion for reconsideration. A “proper” mo-

tion for reconsideration, the court held, is one that

“ask[s] the court to reconsider a [previously raised!

point of law or fact that it misapprehended or over-

looked.” App., infra, 8a n.3; see also id. at lla n.7.

Thus, the court’s rule would apparently bar motions

for reconsideration based on new legal or factual ar-

4 Despite the “disfavor” with which the court below views

attempts to retract concessions, the general rule is that a

party’s concession on a point of law is not binding on a court

of appeals. See Government of Virgin Islands vy. Josiah, 641

F.2d 1103, 1107 n.1 (3d Cir. 1981) ; United States v. Smith,

621 F.2d 483, 489 n.3 (2d Cir. 1980), cert. denied, 449 U.S.

1086 (1981); United States v. Tortorello, 533 F.2d 809, 812

(2d Cir.), cert. denied, 429 U.S. 894 (1976); United States

v. Lisk, 522 F.2d 228, 231 n.8 (7th Cir. 1975), cert. denied,

423 U.S. 1078 (1976). Since an appellate court is free to con-

sider whether to permit a party to retract a concession, it

follows that a district court should also be able to do so in the

first instance.

guments raised for the first time in the reconsidera-

tion motion. While a court may be free in some cir-

cumstances to refuse to consider points previously

conceded or new arguments raised for the first time

on reconsideration, it is most unwise, we submit, to

convert that discretionary decision into a jurisdic-

tional rule. Put another way, the appellate court’s

jurisdiction should not turn on that court’s assess-

ment of whether the appellant was entitled to raise

a particular legal or factual issue in its motion for

reconsideration in the district court.

As a general matter, principles of finality should

be as clear as possible, so that litigants and the courts

will have no room for doubt about when an order is

final and when the time for filing an appeal begins to

run. Murky jurisdictional lines create waste and po-

tential unfairness—wasted time on appellate deci-

sions dealing with the jurisdictional issues, and the

forfeiture of potentially meritorious claims when the

party pressing those claims guesses wrong about the

scope of the jurisdictional rule.

To confine “proper” motions for reconsideration to

those simply asking for reconsideration of particular

legal and factual matters previously raised by the

party, rather than the reconsideration of the order in

question, would create a fertile ground for dispute

over matters having nothing to do with the merits of

the cause. Arguments sould be expected to arise over

whether a particular issue was raised in the motion

for reconsideration for the first time, rather than sim-

ply given greater emphasis or a new characterization.

Disagreemen:s would surely arise about whether a

particular cita..orm or statement in the initial plead-

ing was sufficient to make a particular argument that

was expanded upon in the motion for reconsideration.

And there would be great doubt about the extent to

which the government could present new factual alle-

gations to the court, which may have become relevant

only because of an unexpected legal ground adopted

by the court in its initial ruling.

Moreover, when presenting something other than a

square restatement of its initial argument, the gov-

ernment would have to gamble that the appellate

court would regard the motion for reconsideration as

“proper.” Even if the district court considered the

motion on the merits, as in this case, the government

would still run the risk that the appellate court

would regard the motion as “improper” and thus

treat the appeal as untimely. The uncertainties flow-

ing from such a regime would create pointless dis-

tractions in a system already straining to handle its

caseload.

3. Motions for reconsideration are an essential

part of the federal government’s administration of its

criminal cases. The government’s criminal litigation

is monitored by the Criminal Division of the Depart-

ment of Justice in Washington. Each United States

Attorney’s Office is required to inform the Division

immediately of all district court decisions that are ad-

verse to the government. United States Attorneys’

Manual paras. 2-2.110, 9-2.171 (1988). The Divi-

sion reviews each such decision to ensure that the

United States Attorney has presented every argu-

ment that is legally and factually supportable, and

that the positions advanced are consistent throughout

the federal system. It is unavoidable that the various

United States Attorney’s -Offices will sometimes take

differing positions on a legal issue. Through the ad-

verse decision reporting process, the Department

learns of such inconsistencies. For instance, a United

States Attorney’s Office may have advanced a posi-

tion that is legally at odds with the Department’s

position, perhaps by conceding a legal argument that

is being pressed in other United States Attorney’s

Offices, or by failing to make appropriate arguments

that are being asserted in similar cases in other

offices.

When such lapses are identified, the Division fre-

quently suggests to the United States Attorney that

he move for reconsideration in the district court be-

fore authorization for an appeal is sought from the

Solicitor General. It follows that the government’s re-

consideration motions sometimes seek to retract in-

appropriate concessions, and often bring new legal

arguments to the attention of the district court.

Uncertainty about the circumstances in which a

motion for reconsideration will toll the government’s

appeal time would greatly complicate the use of the

motion for reconsideration as a tool for maintaining

the uniformity of criminal litigation policies. Under

the requirement established by the decision in this

case, the government would have to weigh the risk

that a motion for reconsideration would forfeit the

government’s appeal rights if the appellate court con-

sidered it inappropriate.*

4. The decision below misinterprets this Court’s

decision in United States v. Dieter, supra, which

adopted the bright line rule rejected by the court be-

low. Dicer held that a party’s appeal time runs from

the denial of a timely filed motion for reconsideration.

The Criminal Appeals Act, 18 U.S.C. 3731, provides

SIf the government did decide to file a reconsideration

motion in such circumstances and the district court did not

act on the motion within 30 days of its original decision on

the merits, the government would be required to protect its

appeal rights by filing a notice of appeal, thereby presumably

removing the case from the district court’s jurisdiction with-

out a ruling on the reconsideration motion.

that an appeal by the United States from a decision or

order of a district court suppressing evidence shall be

taken within 30 days after the order has been ren-

dered. Accord Fed. R. App. P. 4(b) (government

appeal must be filed within 30 days after the entry

of the order appealed from). Dieter is grounded on

the “traditional and virtually unquestioned practice,”

429 U.S. at 8 n.3 (quoting United States v. Healy,

376 U.S. 75, 79 (1964) ), that the filing of a motion

to reconsider suspends the finality of the court’s judg-

ment pending the court’s determinaticn whether the

judgment should be modified. See, e.g., Department

of Banking v. Pink, 317 U.S. 264, 266 (1942) ; Com-

munist Party of Indiana v. Whitcomb, 414 U.S. 441,

445 (1974) (‘“Appellees’ motion for reconsideration

* * * suspended the finality of the [district court]

judgment * * * until the District Court’s denial of

the motion * * * restored it.”). Cf. R. Stern, E.

Gressman and §S. Shapiro, Supreme Court Practice

312 (6th ed. 1986); Rule 13.4 of the Rules of

this Court.°

The court of appeals attempted to distinguish Die-

ter on the ground that the government’s reconsidera-

tion motion in this case was unlike the motion in

Dieter.” The ~ourt likened a motion for reconsidera-

®In Bowman vy. Loperena, 311 U.S. 262, 266 (1940), the

Court held that even an untimely petition for rehearing of a

district court order tolled the time for taking an appeal be-

cause the district court allowed the petition and considered it

on its merits. A fortiori, the appeal time should be tolled by

a timely filed motion for reconsideration (even one asserting

grounds disfavored by the court of appeals), particularly

when—as here—the district court has considered it on the

merits before denying it. See generally R. Stern, Appellate

Practice in the United States 96 (1981).

7As Judge Baldock observed in dissent, App., infra, 12a,

Dieter itself arose out of a prior unsuccessful attempt by the

tion of a previously conceded issue to a successive mo-

tion for reconsideration, which does not affect the

running of the appeal time.* That analogy is inapt.

In this case the government filed only one motion for

reconsideration. Even if, as the court observed, con-

cessions are usually binding and their withdrawal

disfavored, that does not somehow transform a single

motion to reconsider based on a previously concede

theory into an impermissible successive attempt to

toll the government’s appeal time.’

The court of appeals suggested that Dieter is in-

applicable to the government’s motion in this case

because the instant motion “did not request that the

district court correct an alleged error of law or set

aside a ruling on the grounds of mistake or inad-

vertance.” App., infra, 9a. The court of appeals con-

Tenth Circuit to “craft distinctions * * * on the general rule

that the government has thirty days from the district court’s

denial of a timely filed motion for reconsideration to appeal

an order granting suppression.”

8In United States v. Marsh, 700 F.2d 1322 (10th Cir.

1983), upon which the court below relied, a motion for recon-

sideration of a trial court’s order denying a new trial did not

toll the time period in which to file a notice of appeal because

the new trial motion was, in essence, a motion for rehearing.

The motion for reconsideration, which served au identical

function, was therefore successive. As the court explained:

“(The defendant] is not entitled to two bites, so to speak.

* * * (Hie is not entitled to two motions for rehearing, and

that is what, in substance, is sought.” 700 F.2d at 1324.

Accord United States v. Rothseiden, 680 F.2d 96, 97 (11th

Cir. 1982).

® As Judge Baldock noted in his dissent, App., infra, 17a,

“the government’s right to appeal the suppression order * * *

should not be abrogated merely because the government exer-

cised its right to file a motion for reconsideration on grounds

obviously viewed with disfavor by this court.”

cluded, therefore, that the government’s motion, un-

like the motion at issue in Dieter, did not ask the dis-

trict court to “reconsider [a] question decided in the

case” in order to effect an “alteration of the rights

adjudicated.” App., infra, 10a (quoting Dieter, 429

U.S. at 9). This cramped view of the appropriate

scope of a motion for reconsideration is inconsistent

with Dieter.

In Dieter, the Tenth Circuit had found Healy in-

applicable because the post-trial motion in Healy

“was directed squarely at an alleged error of law

committed by the trial court,” whereas in Dieter, the

Government’s motion to set aside the court’s ruling

on the ground of mistake or inadvertence “was an en-

tirely different species of pleading.” 429 U.S. at 8.

This Court reversed, explaining that the considera-

tions that had prompted the rule announced in Healy

“fully apply whether the issue presented on appeal is

termed one of fact or of law,” and that nothing in

Healy supported the distinction drawn by the court

of appeals. /bid. The Dieter Court concluded: “It is

true that the Government’s post-dismissal motion was

not captioned a ‘petition for rehearing,’ but there can

be no doubt that in purpose and effect it was precisely

that, asking the District Court to ‘reconsider [a]

question decided in the case’ in order to effect an

‘alteration of the rights adjudicated.’” Jd. at 8-9

(quoting Department of Banking v. Pink, 317 U.S.

264, 266 (1942) ).

As Judge Baldock explained below, the clear im-

port of Dieter is that a court is not to consider the

merits of a motion for reconsideration in determining

its jurisdictional effect. App., infra, 12a. The ma-

jority’s response (App., infra, 7a-8a n.3)—that it

was merely looking beyond the caption of the govern-

ment’s motion in order to determine its substance, the

same inquiry that this Court had conducted in Dieter

and in Pink—misapprehends the nature of the

Court’s inquiry in Dieter and Pink. The Court in

those cases looked beyond the caption of the govern-

ment’s motion solely to determine the nature of the

relief sought. Thus, in Pink, the motion did not toll

the time within which to petition for certiorari be-

cause it did not challenge the final judgment of the

lower court. 317 U.S. at 266." In contrast, the gov-

ernment’s motion in Dieter, although not termed a

motion for reconsideration, was treated like one be-

cause it did challenge the district court’s judgment—-

it sought an “alteration of the rights adjudicated.”

This case is like Dieter, not Pink. The government’s

reconsideration motion clearly challenged the district

court’s ruling—it sought a reversal of the district

court’s order suppressing evidence. Accordingly, like

the motion in Dieter, the motion in this case tolled

the government’s appeal time by depriving the initial

order of finality until the district court ruled on the

government’s motion.

5. Finally, the court of appeals’ decision is incon-

sistent with the decision of the Eleventh Circuit in

United States v. Ladson, 774 F.2d 436, 438-439 n.3

(1985). In Ladson, the Eleventh Circuit recognized

10The motion at issue in Pink simply sought the court’s

certification that a federal question had been presented to it

for decision. In that circumstance, the Court explained (317

U.S. at 266 (emphasis added) ) :

A timely petition for rehearing tolls the running of the

three-months period because it operates to suspend the

finality of the state court’s judgment, pending the court’s

further determination whether the judgment should be

modified so as to alter its adjudication of the rights of the

parties. Here no such alteration of the rights adjudicated

was asked, and the finality of the court’s first order was

never suspended.

that Dieter teaches that a reconsideration motion as-

serting a new argument tolls the time for filing an

appeal. It rejected the argument that such a motion

does not ask the court to “reconsider” anything, cor-

rectly observing that the motion seeks reconsideration

of the court’s “ultimate holding on the suppression

issue.” 774 F.2d at 438 n.3. The court below recog-

nized, App., infra, 10a-lla n.7, that its analysis of

the “proper” scope of a motion for reconsideration

conflicts with this approach. While the narrow hold-

ing of this case—involving a withdrawn concession—

does not conflict with the holding in Ladson, the anal-

ysis in the two cases is squarely at odds.

Because of its substantial practical importance in

the day-to-day administration of criminal justice, the

issue raised by that conflict warrants resolution by

this Court.

CONCLUSION

The petition for a writ of certiorari should be

granted. The Court may wish to consider summary

reversal.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

HARRIET S. SHAPIRO

Assistant to the Solicitor General

DEBOKAH WATSON

Attorney

May 1991

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 90-8018

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

Vv.

ALEJANDRO GARCIA IBARRA, DEFENDANT-APPELLEE

Appeal from the United States District Court

for the District of Wyoming

(D.C. No. CR-89-0025-01J )

[Filed Dec. 3, 1990]

Before MCKAY and BALDOCK, Circuit Judges, and

KANE,’ 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

' Honorable John L. Kane, Jr., Senior United States District

Judge for the District of Colorado, sitting by designation.

(la)

under the fourth amendment of the United States

Constitution. The United States has appealed. It as-

serts 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 inevi-

table discovery announced in Nix v. Williams, 467

U.S. 431 (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.

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 defend-

ant a warning notice for failing to signal when pass-

ing. 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 pri-

vate towing service to tow the defendant’s vehicle

into a nearby city after discovering that the defend-

ant’s sole passenger did not have a valid driver’s li-

cense. Patrolman Mahaffey informed the defendant

that he would need to find a licensed driver before the

vehicle would be released. The patrolmen then trans-

ported the defendant and his passenger to a Western

Union station.

Afterward, the patrolmen drove to where the de-

fendant’s vehicle was impounded and conducted a

second search for contraband. They discovered a

brick-shaped container wrapped with tape under-

neath the spare tire in the trunk. A cut in the con-

tainer revealed a white powdery substance. The de-

fendant was later indicted on one count of possession

with intent to distribute cocaine, in violation of 21

U.S.C. $§ 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 en-

forcement 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 sec-

ond search of the impounded vehicle, and that the

second search was not made pursuant to a lawful in-

ventory search. The government responded that the

patrolman stopped the defendant for a lawful pur-

pose. 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 Ma-

haffey conducted a previously planned inventory

search.

In response to a memorandum of authority sub-

mitted on behalf of the defendant, however, the gov-

ernment rescinded its argument relating to the de-

fendant’s continuous consent to the search. The gov-

ernment stated: “Contrary to its prior-stated posi-

tion, the United States no longer argues that the

second search of the Defendant’s vehicle is support-

able 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 evi-

dentiary hearing, the district court granted the de-

fendant’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. Jd. at 1199-1200.

On December 13, 1989, the government filed with

the district court a motion entitled “Motion for Re-

consideration 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 fur-

ther stated:

Whether the motion is in fact one for recon-

sideration 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, pro-

vided such a motion is in fact one for reconsid-

eration and filed within the 30-day period.

Id. at 1039 n.2. On January 30, 1990, the govern-

ment 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. § 3731, the government in a criminal

case must file a notice of appeal of an order suppress-

ing or excluding evidence within thirty days of the

entry of the order.? Here, the district court granted

the defendant’s motion to suppress on November 15,

2 Federal Rule of Appellate Procedure 4(b) provides in

relevant part:

When an appeal by the government is authorized by

statute, the notice of appeal shall be filed in the district

court within 30 days after the entry of (i) the judgment

or order appealed from or (ii) a notice of appeal by any

defendant. A judgment or order is entered within the

meaning of this subdivision when it is entered in the

criminal docket.

Fed. R. App. P. 4(b). Statutory authorization for this appeal

is found in section 3731. That provision reads in part:

An appeal by the United States shall lie to a court of

appeals from a decision or order of a district courts

[sic] suppressing or excluding evidence... .

The appeal in all such cases shall be taken within thirty

days after the decision, judgment or order has been ren-

dered and shall be diligently prosecuted.

18 U.S.C. § 3731 (1988).

1989. The government then filed its motion for re-

consideration 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 gov-

ernment 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 Su-

preme Court’s decisions in United States v. Healy,

376 U.S. 75 (1964), and United States v. Dieter, 429

U.S. 6 (1976), however, and argues that the sub-

mission 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 unnec-

essary expenditure of resources in the appellate court.

Healy, 376 U.S. at 80. In Dieter, the Supreme Court

extended the holding in Healy to appeals taken to the

courts of appeals pursuant to 18 U.S.C. § 3731. The

Court explained that “plenary consideration of an is-

sue 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 (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 mo-

tions 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 re-

dundant 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 rehear-

ing recognized in Dieter, the motion did not toll the

time period for filing a notice of appeal. We agree.

In our opinion, such a motion does not substantially

further the goal of allowing the district court an

opportunity to reconsider a point that may have been

overlooked in the initial decision.* A concession of an

®The dissent concludes that our holding conflicts with

Dieter because, under our analysis, we must reach the merits

issue is generally treated as binding on that party.

See United States v. Maez, 872 F.2d 1444, 1457 n.18

(10th Cir. 1989); United States v. Morales-Macias,

855 F.2d 693, 695 n.15 (10th Cir. 1988). Moreover,

of a movant’s claim to determine jurisdiction. Dissent Op.

at 6-7. In our opinion, however, we do not engage in a merit-

based analysis. Although a motion for reconsideration is not

specifically contemplated in the Federal Rules of Civil Pro-

cedure, it has been described as follows:

The motion to reconsider would be appropriate where, for

example, the Court has patently misunderstood a party,

or has made a decision outside the adversarial issues

presented to the Court by the parties, or has made an

error not of reasoning but of apprehension. A further

basis for a motion to reconsider would be a controlling

or significant change in the law or facts since the sub-

mission of the issue to the Court.

Above the Belt, Inc. v. Mel Bohannon Roofing Co., 99 F.R.D.

99, 101 (E.D. Va. 1983). That statement’s counterpart is con-

tained in Fed. R. App. P. 40(a), which requires every petition

for rehearing before a Court of Appeals to “state with par-

ticularity the points of law or fact which in the opinion of the

petitioner the court has overlooked or misapprehended ... .”

In determining that a motion to reconsider a previously con-

ceded issue does not toll the time to appeal, we determine only

that the motion is not what it purports to be: it does not ask

the court to reconsider a point of law or fact that it misap-

prehended or overlooked. The motion therefore does not have

the jurisdictional effect of a proper motion for reconsider-

ation, regardless of its merits.

Nor does this decision, in our opinion, conflict with the

Supreme Court’s decision in Dieter. To the contrary, the

Court in Dieter recognized that although the motion before it

was not captioned a “petition for rehearing,” an examination

of its substance demonstrated that was in effect the motion’s

purpose. Dieter, 429 U.S. at 8-9. Similarly, the Court in Dep’t

of Banking v. Pink, 317 U.S. 264 (1942), looked beyond the

caption of the motion to determine its substance. We engage

in the same inquiry here.

this circuit has not looked favorably on attempts by

the government to raise issues it had previously con-

ceded. See United States v. Smith, 781 F.2d 184

(10th Cir. 1986). A motion for reconsideration of

a previously conceded issue, therefore, is analogous to

the successive motions for reconsideration of the same

issue analyzed in Marsh. Generally, such a motion

has very little likelihood of success and merely serves

to prolong the process of litigation. We believe that a

rule allowing a motion for reconsideration that raises

only previously conceded issues to toll the time for

filing a notice of appeal would subvert, rather than

further, the concern for judicial economy.

Here, the government initially raised the issue of

continuous consent in a memorandum before the trial

court. However, in a subsequent brief filed prior to

the evidentiary hearing, it conceded that there was no

authority supporting its position and expressly re-

tracted the argument. After the district court granted

the defendant’s motion to suppress the evidence, how-

ever, the government attempted to revive the issue in

its motion for reconsideration. Unlike the situation

in Healey and Dieter, the motion here did not request

that the district court correct an alleged error of law

or set aside a ruling on the grounds of mistake or in-

advertence.” Nor did the government in its motion

4In Smith, the court refused to permit the government to

raise an issue in a petition for rehearing before the appellate

court that it had previously conceded. The court reasoned

that to allow a party to make such a belated and dramatic

shift in position on petition for rehearing would permit piece-

meal litigation. Jd.

5’ The government notes that the district court cited United

States v. Recalde, 761 F.2d 1448 (10th Cir. 1985), in support

of the government’s concession of the issue of continuing

10a

cite contrary authority announced after it conceded

the continuing consent issue, sparing the parties and

the appellate court the burden of unnecessary appel-

late proceedings. See United States v. Cardall, 773

F.2d 1128 (10th Cir. 1985) (second motion raising

issue that had been addressed by the Supreme Court

after district court denied first motion tolled time for

filing appeal).* The motion submitted by the govern-

ment, therefore, did not ask “the District Court to

‘reconsider [a] question decided in the case’ in order

to effect an ‘alteration of the rights adjudicated.’ ”

Dieter, 429 U.S. at 9 (quoting Department of Bank-

ing v. Pink, 317 U.S. 264, 266 (1942) ).

The government nevertheless argues that its mo-

tion need only request reconsideration of the ultimate

issue—the district court’s holding on the suppression

of the evidence—to toll the time limit for filing a no-

tice of appeal.’ That the legal theory on which the

consent. It argues that its motion asked the district court

to reconsider the court’s citation to Recalde. Because the

government had abandoned the theory of continuing consent,

however, any correction regarding the citation would not have

affected the outcome of the district court’s order.

* The court in Cardall limited the holding to the facts before

it. The court also noted the procedure followed in Garcia v.

Regents of the University of California, 737 F.2d 889 (10th

Cir. 1984). There, the appellant first filed a notice of appeal

within the thirty-day period. The appellant then moved the

appellate court for a partial remand so that the district court

could consider a motion for new trial.

7 Though not cited by the government, the Eleventh Circuit

adopted similar rationale in holding that a motion for recon-

sideration that raised a new issue tolled the time to appeal.

See United States v. Ladson, 774 F.2d 436, 438-39 n.3 (11th

Cir. 1985). We do not consider the effect of such a motion

here; we limit our consideration to where a party concedes

lla

government based its motion had been previously con-

ceded, the government contends, is of no practical

importance. We disagree. This court has previously

looked to the substance of successive motions for re-

consideration to determine whether the second motion

tolled the statutory period in which a notice of appeal

must be filed. Compare Cardall, 773 F.2d at 1128

(second motion effectively raised new issue before

district court) with Marsh, 700 F.2d at 1322 (re-

dundant motion for reconsideration does not toll time

for filing notice of appeal). We believe the same con-

sideration should determine whether an initial motion

for reconsideration tolls the time for filing a notice of

appeal.

Because the government’s motion for reconsidera-

tion did not tol! the thirty-day statutory time period

in which to file a notice of appeal, the government’s

notice was untimely filed. This court therefore lacks

jurisdiction to review the district court’s order. The

appeal is DISMISSED.

an issue already raised, invoking the reliance of the court and

opposition. Nor do we reach the appropriate scope of argu-

ments in a motion for reconsideration filed in the district

court. We note, however, that this circuit has held that

“petitions for rehearing under Fed.R.App.P. 40(a) are

permitted to enable parties to notify, and to correct, errors

of fact or law on the issues already presented; they are not

meant to permit parties to assert new grounds for relief.”

Sierra Club v. Hodel, 848 F.2d 1068, 1100-01 (10th Cir. 1988).

See also United States v. Head, 737 F. Supp. 1287, 1288

(W.D.N.Y. 1990) (“The government’s present constitutional

argument may well have merit. But the fact remains that it

was not raised before, and it would be exceptionally unfair

to the defendant to allow the government, with the benefit

of hindsight after having lost based on its original arguments,

to use a motion for reconsideration to raise a new argument

that should have been raised in the first instance.”’)

12a

BALDOCK, Circuit Judge, dissenting.

The court holds that the government’s otherwise

timely filed motion for reconsideration did not toll the

thirty-day statutory time period in which to take an

appeal because the government sought reconsideration

of a previously conceded issue. Ct. Op. at 11-12.

This holding is plainly contrary to United States v.

Dieter, 429 U.S. 6 (1976), in which the Supreme

Court rejected the Tenth Circuit’s attempt to craft

distinctions (based upon the merits of the motion for

reconsideration )' on the general rule that the govern-

ment has thirty days from the district court’s denial

of a timely filed motion for reconsideration to appeal

an order granting suppression under 18 U.S.C. § 3731

and Fed. R. App. P. 4(b). In Dieter, this court er-

roneously concluded that a motion for reconsideration

did not toll the time in which to appeal a suppression

order because the government sought reconsideration

on the grounds of mistake and inadvertence rather

that an alleged legal error committed by the trial -

court. 429 U.S. at 8.

Here, the court is undertaking a merits inquiry on

what should be a straightforward jurisdictional in-

quiry. The clear import of Dieter is that we do not

conduct a merits review of every motion for reconsid-

eration to insure that it meets the salutary purposes

of the rule which provides for tolling the time in

which to take an appeal. The rule in Dieter and its

predecessor, United States v. Healy, 376 U.S. 75

1In Dieter, the motion for reconsideration was termed a

“petition for rehearing.” See United States v. Lefler, 880 F.2d

233, 234 n.2 (9th Cir. 1989) (noting name of pleading is not

controlling, what matters is that the pleading seeks the dis-

trict court to reconsider its previous order) ; accord United

States v. Kalinowski, 890 F.2d 878, 880-81 (7th Cir. 1989).

13a

(1964), expressly recognized that “the consistent

practice in civil and criminal cases alike has been to

treat timely” motions for reconsideration “as render-

ing the original judgment nonfinal for purposes of

appeal for as long as the [motion] is pending.”

Dieter, 429 U.S. at 8 (citing Healy, 376 U.S. at 78-

79); see also Forman v. United States, 361 U.S. 416,

425-26 (1960). In the civil context, we do not scru-

tinize the grounds of motions for reconsideration

under Fed. R. Civ. P. 59(e) to insure that tolling is

appropriate, rather we merely apply the Supreme

Court’s directive in Griggs v. Provident Consumer

Discount Co., 459 U.S. 56, 59-60 (1982) and Fed. R.

App. P. 4(a)(4) which provide that a timely filed

Rule 59(e) motion tolls the time in which to take an

appeal.

The court claims that rather than making a merits

inquiry, it ‘“determine[s] only that the motion is not

what it purports to be: it does not ask the court to

reconsider a point of law or fact that it misappre-

hended or overlooked.” Ct. Op. at 8-9 n.3. Belying

this assertion is the court’s discussion of the merits

which all but decides that once an issue is conceded,

it cannot be resurrected. Jd. at 10. Claiming to be

consistent with Dieter and Pink, the court then allows

that it merely is “look[ing] beyond the caption of the

motion to determine [the motion’s] substance.” Id.

at 8-9 n.3. No need exists in this case to look beyond

the caption to determine the function of this motion:

the government filed a “Motion for Reconsideration

of Suppression Order.” * By “ ‘traditional and vir-

2In Dieter, the Court construed a “motion to Set Aside

Order of Dismissal” as a petition for rehearing. Dieter, 429

U.S. at 7-8. In Pink the Court construed a motion seeking

to have the New York Court of Appeals “amend its remit-

l4a

tually unquestioned practice,’” this post-suppression

order suspended the time in which to file an appeal,

see Dieter, 429 U.S. at 8 n.3 (quoting Healy, 379

U.S. at 79). Under Dieter, Healy and Pink, the mov-

ant only neel claim that the district court’s decision

was somehow incorrect and that the order should be

altered. See Dieter, 429 U.S. at 8; Healy, 376 U.S.

at 80; Pink, 317 U.S. at 266. Only when the motion

is filed in bad faith might the court’s approach be

justified.* Though the government’s motion for re-

consideration appears meritless, no showing of bad

faith has been made in this complex, multi-issue sup-

pression case.

In the criminal context, “for a motion for recon-

sideration to extend the time for appeal, (1) the

motion for reconsideration must be filed within the

period during which an appeal could have been noticed

from the original order, and (2) the notice of appeal

must be filed within the required period following the

order on the motion for reconsideration.” United

States v. Lefler, 880 F.2d 233, 234 (9th Cir. 1989).

These requirements plainly are met in this case.‘

titur by adding to it” an additional statement. 317 U.S. at

266.

3 In Healy, the Court discussed a requirement of good faith.

In this case, the record and legal issues plainly indicate

the good faith of the Government in petitioning for re-

hearing. We would, of course, not countenance the United

States’ using such petitions simply as a delaying tactic

in criminal litigation; there is, however, not the slightest

basis for believing that it would try to do so.

376 U.S. at 80 n.4.

4 The government’s motion for reconsideration was filed on

December 13, 1989, twenty-eight days after the district court’s

November 15, 1989 suppression order, and within the ap-

plicable thirty-day period in which the government could

l5a

No good reason exists to disregard the consistent

rule in civil and criminal cases that a single motion

for reconsideration of a district court’s order tolls the

time for filing a notice of appeal.® This court relies

on cases involving successive motions for reconsidera-

tion which are factually inapposite. One of those

cases, United States v. Cardall, 773 F.2d 1128 (10th

Cir. 1985), determined that the government’s second

motion for reconsideration tolled the time in which to

take an appeal after analyzing the grounds of that

second motion. /d. at 1130. The Cardall court im-

plicitly recognized that, under Dieter, the first motion

for reconsideration tolled the time in which to file a

notice of appeal. Cardall, 773 F.2d at 1130. We have

recognized that a motion for rehearing or reconsid-

eration filed within thirty days tolls the time for the

government to file a notice of appeal under Fed. R.

App. P. 4(b). United States v. Martinez, 681 F.2d

1248, 1252-54 (10th Cir. 1982); see also United

States v. Rodriquez, 892 F.2d 233, 235 (2d Cir.

1989), cert. denied, 1108S. Ct. 1791 (1990).

Another case relied upon by the court, United

States v. Marsh, 700 F.2d 1322 (10th Cir. 1983), also

appeal. The government’s notice of appeal was filed on Janu-

ary 30, 1990, twenty-seven days after the district court's

January 3, 1990 order denying reconsideration and again

within the applicable thirty-day period in which the govern-

ment could appeal. Accordingly, the government's appeal was

timely.

° Indeed, the harsh and administratively complicated rule

adopted by the court is inconsistent with our newfound charity

concerning premature notices of appeal in both the civil and

criminal contexts. See Lewis v. B.F. Goodrich, 850 F.2d 64},

643-46 (10th Cir. 1988) (en banc); United States v. Green,

847 F.2d 622, 624-25 (10th Cir. 1988) (en banc).

l6a

applies to successive motions for reconsideration. In

Marsh, we considered whether a motion for recon-

sideration of an order denying a new trial tolled the

time in which to file a notice of appeal. We con-

cluded that the motion for reconsideration did not

toll because the motion for a new trial served an

identical function, thus rendering the second motion

for reconsideration successive: “Marsh is not entitled

to two bites, so to speak. [H]e is not entitled to two

motions for rehearing, and that is what, in sub-

stance is sought.” 700 F.2d at 1324. Marsh relied

upon United States v. Rothseiden, 680 F.2d 96 (11th

Cir. 1982), which determined that a trial court’s

second denial of the government’s motion for recon-

sideration does not toll the time in which to file a

notice of appeal because “successive tolling is not

allowed.” Id. at 97; See Marsh, 700 F.2d at 1325-26

(discussing Rothseiden) ; see also Ct. Op. at 8 (citing

Rothseiden). Importantly, the court in Rothseiden,

remanded to the district court for a finding of

whether the government’s untimely filing was the

product of excusable neglect under Fed. R. App. P.

4(b).°

According to the court, Ct. Op. at 11, the govern-

ment’s motion for reconsideration did not request “‘the

District Court to ‘reconsider [a] question decided in

the case’ in order to effect an ‘alteration of the rights

adjudicated.” Dieter, 429 U.S. at 9 (quoting Depart-

ment of Banking v. Pink, 317 U.S. 264, 266 (1942)).

® Given the court’s decision, that option is not available here

because seventy-six days passed between the district court’s

initial order and the government’s filing of a notice of appeal.

See Fed. R. App. P. 4(b) (allowing district court to extend

the time for filing a notice of appeal in a criminal case by 30

days upon a showing of excusable neglect).

17a

Not so. This is not a situation like that in Pink where

“{t]he final judgment already rendered was not chal-

lenged; what was sought was merely the court’s certi-

fication that a federal question had been presented to

it for decision, and this could have no different effect

on the finality of the judgment than a like amend-

ment of the court’s opinion.” Pink, 317 U.S. at 266.

Rather, the government’s motion plainly sought “al-

teration of the rights adjudicated” and challenged

“{t}he final judgment already rendered,” id.; had

the district court granted the motion the evidence in

question would not have been suppressed.

The government claimed in its motion to have dis-

covered new legal authority on the continuing consent

issue and requested that “the evidence not [be] sub-

ject to suppression.” Rec. vol. I, doc. 39 at 1, 11. To

be sure, the government had conceded this issue

earlier, but the government’s right to appeal the sup-

pression order (which contains many other appeal-

able issues) should not be abrogated merely because

the government exercised its right to file a motion for

reconsideration on grounds obviously viewed with

disfavor by this court. Notwithstanding the district

court’s gratuitous comments about the characteriza-

tion of the motion, see United States v. Ibarra, 731

F. Supp. 1037, 1039 n.2 (D. Wyo. 1990), and con-

trary to the district court’s claim that it lacked an

evidentiary basis to proceed, id. at 1039, the district

court reached the merits of the motion for recon-

sideration and then published its order denying same.

Id. at 1039-41.

The approach taken by this court conflicts with the

correct approach taken by the Eleventh Circuit in

United States v. Ladson, 774 F.2d 436, 438-39 n.3

(11th Cir. 1985). See Ct. Op. at 11 n.7 (discussing

18a

Ladson). In Ladson, the defendants argued that the

motion was based upon new grounds and consequently

did not ask the district court to “reconsider” any-

thing. Rejecting this argument, the court stated: “In

fact, however, the motion did ask the court to re-

consider something: its ultimate holding on the sup-

pression issue.” Ladson, 774 F.2d at 438 n.3. The

same request was made of the district court in this

ease. The Ladson court also rejected an approach

which would condition tolling on whether the issues

to be appealed had been presented in the motion for

reconsideration. Jd. at 439 n.3. Under this approach,

tolling would have been allowed only as to the one

new issue raised in the motion for reconsideration,

despite the presence of other appealable issues. /d.

Rejecting this alternative, the court noted such an

approach was inconsistent with Dieter and stated:

“We decline to introduce additional complications into

the lives of would-be appellants.” Jd.

The approaeh taken by this court conflicts with

Dieter because it portends an evaluation of whether

the claims raised in the motion for reconsideration

are new or old (valid or invalid) for jurisdictional

purposes. While such inquiry may be wholly ap-

propriate in deciding the merits of the appeal, it has

no place in deciding our jurisdiction when the govern-

ment has exercised its right to timely file a single

motion for rehearing and perfects a timely appeal.

The government was not required to ask the district

court “to reconsider every appealable issue [or even

another appealable issue], even when to do so would

surely be fruitless, or lose the benefit of Dieter.” Lad-

son, 774 F.2d at 439 n.3. I respectfully dissent be-

cause the court has grafted a merits inquiry onto

what should be a bright-line jurisdictional inquiry.

I would reach the merits of this appeal.

19a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING

Docket No. CR89-0025J

UNITED STATES OF AMERICA, PLAINTIFF

Vv.

ALEJANDRO GARCIA IBARRA, DEFENDANT

ORDER DENYING GOVERNMENT’S

MOTION FOR RECONSIDERATION

[Filed Jan. 5, 1990]

THE ABOVE CAPTIONED MATTER came be-

fore the court on December 27, 1989, for hearing on

the government’s motion for reconsideration of this

court’s November 15, 1989, memorandum opinion and

order granting the defendant’s May 10, 1989, motion

to suppress evidence. The defendant, Alejandro Gar-

cia Ibarra, is charged in a one count indictment with

possession of cocaine with intent to distribute it in

violation of 21 U.S.C. $$ 841(a)(1) and 841(b) (1)

(B) (ii). On September 12, 1989, the case came be-

fore the court for an evidentiary hearing on the de-

fendant’s motion to suppress, which the court granted

after carefully considering the arguments of counsel

for the government and the defendant in light of the

evidence presented.

The court will not recite in detail the facts of this

case because they are already found in its November

20a

15, 1989, memorandum opinion and order, United

States v. Ibarra, No. Cr89-0025J, slip op. (D. Wyo.

Nov. 15, 1989). On March 24, 1989, Ibarra and a

friend were traveling at a lawful rate of speed in a

1981 Oldsmobile Cutlass with California plates east

through southern Wyoming on Interstate 80 (I-80).

At that time, Wyoming highway patrolman Scott

Mahaffey noticed the car because its driver, Ibarra,

appeared to be driving slightly below the speed limit.

After following the vehicle for approximately five

miles, Mahaffey stopped Ibarra because he noticed

that Ibarra “weaved,” and abruptly passed two other

vehicles without signaling.

After informing Ibarra why he stopped him, Ma-

haffey discovered that Ibarra’s driver’s license had

been suspended for failure to pay a reissue fee and

that Ibarra had recently purchased the vehicle from

a Mr. Charles J. Petrocchi. Ibarra was issued a cita-

tion for the license problem for which he posted a

$220-appearance bond. Meanwhile, a second Wyo-

ming highway patrolman, Gregory Leazenby, arrived

at the scene and sat in the back of Mahaffey’s patrol

car and observed the interchange between Mahaffey

and Ibarra. Ibarra, who is from Mexico and evidently

speaks halting English,’ aroused Mahaffey’s suspi-

cions by giving conflicting answers about his itinerary.

His suspicions aroused, Mahaffey asked Ibarra

three questions, which appear to have become routine

among Wyoming highway patrolmen. He asked if the

vehicle contained any “weapons, large amounts of

money, or controlled substances,” to which Ibarra re-

plied “no.” Mahaffey then obtained Ibarra’s permis-

sion to look in the trunk, the search of which revealed

1 At the suppression hearing, Ibarrra was assisted by a

court appointed interprete’ in understanding the proceedings.

2la

nothing illegal. When it was discovered that Ibarra’s

friend also had an expired driver’s license, Mahaffey,

without consulting with Ibarra, radioed for a wrecker

to tow the vehicle into Laramie, which was a short

distance away. In its prior order, the court found

that this was done without lawful authority and was

motivated by an investigatory motive, rendering any

inventory search unreasonable under the fourth

amendment. /barra, Cr. No. 89-0025J, slip op. at 17

and 23.

The offieers then separated Ibarra and his friend

and drove them in their respective patrol cars to a

motel in Laramie. Immediately after leaving them

there, the officers proceeded to the place where Ibar-

ra’s vehicle had been towed and, believing they still

had his consent, searched the vehicle again. The

search revealed approximately one kilogram of co-

caine for which Ibarra was later indicted by a federal

grand jury.

In its original opposition to the defendant’s motion

to suppress, the government argued that the second

warrantless search was valid under a continuing con-

sent theory. See United States’ Supplemental Memo-

randum In Support of Proposed Findings of Fact

And Conclusions of Law at 1. Prior to the suppres-

sion hearing, however, the government abandoned the

theory of continuing consent, stating that “[c]on-

trary to its prior-stated position, the United States no

longer argues that the second search of the Defend-

ant’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 Facts and Con-

clusions of Law at 1. Thus, at the suppression hear-

22a

ing held on September 12, no evidence was presented

on this issue and the court decided the motion on the

issues whether the search was a valid inventory

search or whether the search was valid under the “in-

evitable discovery” doctrine. The court also decided

the issue whether the stop of Ibarra’s vehicle was a

pretext to investigate more serious unrelated crime

for which the officer had neither probable cause nor

reasonable suspicion to justify a detention. Although

it resolved the pretext issue in favor of the govern-

ment, the court found that the issue presented a close

call.

The title of the government’s motion is a misnomer

because it now asks the court to “reconsider” an issue

that was never considered by the court. Instead, the

government is asking the court to decide a new issue

for which no record was specifically developed.’ The

court decided the motion to suppress on issues for

which an adequate factual basis was developed during

a long evidentiary hearing. The court issued its rul-

ing only after carefully considering the evidence pre-

sented.

The government now argues that it has found case-

law that supports a “continuing consent” theory. The

government has the burden of proving that Ibarra

2 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. See, e.g., United States v. Kalinowski,

No. 88-3009, slip op. (7th Cir. Nov. 15, 1989) (citing United

States v. Healy, 376 U.S. 75, 77-80 (1964)). See also United

States v. Marsh, 700 F.2d 1322 (10th Cir. 1983) (motion for

reconsideration of trial court’s order denying new trial did

not toll time in which to file notice of appeal).

23a

freely and voluntarily consented to a warrantless

search of his vehicle. United States v. Recalde, 761

F.2d 1448, 1453 (10th Cir. 1985). The government,

of course, must present “clear and positive testimony

that the consent was unequivocal and specific .. .

[and] establish that the consent was given without

duress or coercion.” Jd. Because a warrantless

search conducted pursuant to a “continuing consent”

is an exception to the fourth amendment’s warrant re-

quirement, the government likewise must prove that

Ibarra in fact gave a “continuing consent” to the

officers’ second search of his vehicle. Coolidge v. New

Hampshire, 403 U.S. 443, 455 (1971) (government

has burden of showing that a search comes within one

of the exceptions to the fourth amendment’s warrant

requirement). The court must view the evidence pre-

sented with a presumption that the defendant did not

wa.ve his constitutional right to be free from an

unreasonable warrantless search. Villano v. United

States, 310 F.2d 680, 684 (10th Cir. 1962).

In support of its theory, the government relies prin-

cipally on the following cases: United States v. White,

617 F.2d 1131 (5th Cir. 1980); Phillips v. State, 625

P.2d 816 (Alaska 1980); Ferguson v. Caldwell, 233

Ga. 887, 213 E.E.2d 855 (1975) ; State v. Luther, 663

P.2d 1263 (Or. Ct. App. 1983); Gray v. State, 441

A.2d 209 (Del. Super. Ct. 1982); People v. Trujillo,

576 P.2d 179 (Colo. App. 1977); and People v. Naw-

rocki, 6 Mich. App. 46, 148 N.W.2d 211 (1967). In

reviewing those cases, the court finds that in none of

them did the defendant ever withdraw his consent to

search. Nor did the courts in those cases find an un-

lawful seizure of the object searched.

At the September 12 suppression hearing, the evi-

dence showed that Ibarra closed and locked the trunk

24a

upon the conclusion of the officer’s first warrantless

search. At some point the officers decided to impound

the vehicle to conduct a second investigatory search

of it. They never informed Ibarra that a second war-

rantless investigatory search would be conducted. The

court finds that “[t]he act of locking the [trunk]

effectively revoked the [defendant’s] consent to any

future searches” of his vehicle. Cooper v. State, 480

So.2d 8, 11 (Ala. Crim. App. 1985). This rule is in

harmony with the general principle that “except in

unusual circumstances, it would seem that a consent

to search may be said to be conducted forthwith and

that only a single search will be made.” 3 La Fave,

Search and Seizure, § 8.1(c), at 170 (2d ed. 1987).

The government must show that by closing and lock-

ing the trunk, Ibarra did not revoke his consent to

additional searches.

In attempting to discharge this burden, the govern-

ment merely argues that Ibarra’s act of Iccking the

trunk did not constitute a revocation of consent be-

cause the officers subsequently gained possession of

the keys to the vehicle. The government’s argument,

however, overlooks the fact that the officers gained

possession of the keys after Ibarra closed and locked

the trunk. Further, their gaining possession of the

keys was incident to an unlawful seizure of Ibarra’s

vehicle, thereby making it difficult if not impossible

to conclude that such an act constituted a specific

and unequivocal second consent to a later search of

which Ibarra was never informed would in fact occur.

The issue of unlawful seizure, that is, a fourth amend-

ment violation, was, of course, nonexistent in the

cases cited to the court by the government. Even

assuming Ibarra did not revoke his consent by closing

and locking the trunk, the court finds that any “con-

25a

tinuing consent” became infected by a fourth amend-

ment violation, the seizure of Ibarra’s vehicle for the

purpose of conducting an investigative search.

The fourth amendment protects ‘effects’ as well as

people from unreasonable searches and seizures.”

United States v. Place, 462 U.S. 696, 716 (1983)

(Brennan, J., concurring). Under the fourth amend-

ment, law enforcement officers may seize one’s per-

sonal property and briefly detain it for investigative

purposes where there exists a minimum level of ob-

jective justification based on “reasonable, articulable

suspicion” to believe it contains contraband or evi-

dence of a crime. /d. at 706. See also United States

v. Bell, No. 88-1396, slip op. at 18 (10th Cir. Dec. 22,

1989) (seizure of personalty justified under the

fourth amendment where police have “ ‘reasonable,

articulable suspicion, premised on objective facts’ ”

that it contains contraband or evidence of a crime).

Absent valid consent to search, the court generally

must suppress evidence obtained as a result of an un-

lawful seizure of personalty such as luggage or in this

case the defendant’s automobile. Place, 462 U.S. at

710.

At the hearing, it was revealed under questioning

by the court that the officers had the vehicle towed

so that they could search it in a more secure location.

See Ibarra, No. CR.89-0025J, slip op. at 23. Although

they had consent to conduct the first search on the

highway, they at no time obtained Ibarra’s consent to

seize his vehicle. The evidence showed that Ibarra

was informed that the vehicle was to be impounded

after officer Mahaffey radioed for a tow truck, which

occurred after Ibarra had locked the trunk and before

the officers gained possession of the keys. Ibarra was

never given an option to provide for the disposition of

26a

his car. Instead, the officers seized it without Ibarra’s

permission for the purpose of conducting a second in-

vestigatory search for contraband. A seizure for this

purpose could be justified on nothing less than prob-

able cause. See, e.g., Place, 462 U.S. at 706 (if pur-

pose of seizure is to search, it must be based on prob-

able cause). At the hearing, however, the government

did not even present evidence that the officers had a

reasonable, articulable suspicion that the car con-

tained illegal drugs, much less probable cause. In

any event, reasonable suspicion under Terry would

have been insufficient to justify a seizure and subse-

quent warrantless investigatory search of the vehicle.

Thus the seizure of the vehicle was unlawful under

the fourth amendment.

Where a consent is tainted by a fourth amendment

violation, the court must determine whether the con-

sent, under the totality of the circumstances, “was

sufficiently an act of free will to purge the primary

taint of the” prior police misconduct. United States v.

Maez, 872 F.2d 1444, 1454 (10th Cir. 1989). When

it is obtained after a fourth amendment violation

“there must be a break in the causal connection be-

tween the illegality and the evidence thereby ob-

tained.” Jd. In determining this issue the court looks

to the following factors: “‘[t]he temporal proximity of

the ... [prior police misconduct] and the... [evi-

dence obtained], the presence of intervening circum-

stances, and particularly, the purpose and flagrancy

of official misconduct ... .” Brown v. Illinois, 422

U.S. 590, 603-04 (1975). Here the temporal prox-

imity between the illegal seizure of Ibarra’s vehicle

and his alleged “‘continuing consent” to the subsequent

search convinces the court that the taint was not

purged in that the two occurred almost simultane-

ously. Further, Ibarra was separated from his vehicle

. 27a

and transported by one of the officers to a location

where he was left for the duration of the second

search, which occurred shortly thereafter. A second

consent to this search was never obtained. Certainly

it cannot be said that some intervening circumstance

purged the trait of the unlawful seizure. Finally,

although officer Mahaffey candidly testified that he

thought he had a continuing consent to search, the

seizure itself was motivated by an investigatory pur-

pose for which he lacked probable cause to believe the

vehicle contained contraband. Despite this motive and

lack of probable cause he failed to inform Ibarra that

such a search would in fact be conducted outside his

presence.

The government did not present any evidence con-

cerning the specific circumstances under which the

officers obtained possession of the car keys other than

they were obtained in connection with the seizure of

the vehicle. The court must conclude that the govern-

ment has failed to prove that the officers searched

Ibarra’s vehicle pursuant to a “continuing consent”

or that by gaining possession of Ibarra’s car keys

the officers obtained Ibarra’s specific and unequivocal

consent to a second investigatory search, which oc-

curred not only after the vehicle had been taken miles

from where the first search was conducted, but equally

important, cccurred outside the presence of the de-

fendant.* Assuming Ibarra did not revoke his con-

%3It is well recognized principle of constitutional law that

a person has a right to revoke his consent to a warrantless

se hat any time before the discovery of contraband. United

S.. es v. Dyer, 784 F.2d 812, 816 (7th Cir. 1986). In arguing

that the officers conducted the second investigatory search

pursuant to Ibarra’s supposed continuing consent, the gov-

ernment substantially dilutes the defendant’s right to revoke

his consent. Assuming there was a continuing consent, which

28a

sent to subsequent searches, any “continuing consent”

was tainted by a fourth amendment violation for

which no intervening, attenuating event occurred to

dissipate that taint.

Despite the government’s concerns to the contrary,

the court does not rely on Recalde, 761 F.2:' 1448,

for its concluding that the officers had to obtain a

second consent before conducting a second search.‘

The court merely states the unremarkable proposition

that where there is evidence of a revocation of con-

sent, as there is in this case, the government must

prove that the police obtained a second consent to a

subsequent search. Recalde, not being to the contrary,

IT IS HEREBY ORDERED that the government’s

motion on the continuing consent issue be DENIED.

Dated this 3d day of January 1990.

/s’/ Alan S. Johnson

United States District Judge

the court finds that the government has failed to prove, the

officers, by conducting the second search in the defendant’s

absence, cut off the defendant’s right to revoke his consent.

Thus the court would be reluctant to find a continuing consent

where the officers fail to inform the defendant that a second

search is going to be conducted in his absence.

4In Recalde, as in this case, police officers conducted a

second warrantless search of the defendant’s vehicle after they

unlawfully seized both the vehicle as well as the defendant.

Ibarra, of course, does not argue that the officers unlawfully

seized his person. Unlike in this case, however, the officers

obtained the defendant’s second consent, which the Tenth

Circuit found vitiated by the unlawful seizure of the defend-

ant. Although in Recalde the court did not state whether

there was any evidence that upon conclusion of the first search

the defendant revoked his consent, it nevertheless analyzed

the validity of the second search in light of the facts under

which the officers obtained the defendant’s second consent.

29a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING

Docket No. CR89-0025J

UNITED STATES OF AMERICA, PLAINTIFF

Vv.

ALEJANDRO GARCIA IBARRA, DEFENDANT

MEMORANDUM OPINION AND ORDER

RULING ON MOTION TO SUPPRESS

EVIDENCE

[Filed Nov. 15, 1989]

On March 24, 1989, Alejandro Garcia Ibarra and

his friend, Maria Linares, were traveling at a lawful

rate of speed in a white 1981 Oldsmobile Cutlass with

California tags east through Wyoming on Interstate

80. At that time, Wyoming Highway Patrolman

Seott Mahaffey noticed the car because its driver,

Ibarra, appeared to be driving at a rate of speed

slightly slower than other traffic. He also observed

that the car appeared to “weave” within its marked

lane of traffic. Thinking that the driver of the car

was intoxicated, Mahaffey followed the vehicle for

approximately five miles during which he saw the

vehicle pass two other vehicles by making what he

characterized as “abrupt lane changes without the

use of turn signals.” At the time that the vehicle

made one of the passes, Mahaffey noticed that the

vehicle almost cut off a pickup truck. After observ-

“Ing intermittent weaving, Mahaffey stopped the ve-

hicle to determine whether the driver was intoxicated.

30a

Before getting out of his patrol car, Mahaffey

noticed there were two persons in the Oldsmobile. He

then stepped out of his patrol car and approached the

driver’s side of Ibarra’s vehicle and asked him for

his driver’s license, which Ibarra promptly produced.

When Mahaffey informed Ibarra that he stopped him

for failing to signal before passing and for weaving,

Ibarra responded that he thought he had signaled,

but perhaps he had not. Mahaffey returned to his

patrol car where he issued a warning ticket to Ibarra

for failing to signal when passing. Although Mahaf-

fey stopped Ibarra on suspicion of drunk driving, he

failed to pursue an investigaiton of this possible of-

fense other than by conducting a cursory observation

of Ibarra’s appearance and behavior.

While in his patrol car, Mahaffey requested that

his dispatcher check Ibarra’s driver’s license. The

dispatcher indicated that Ibarra’s license had been

suspended for failure to pay reissue fees. Using his

loud speaker, Mahaffey then requested that Ibarra

bring the vehicle registration to him. He told Ibarra

about his suspended driver’s license and that he

would issue a citation to him for operating a motor

vehicle with a suspended license, which required that

Ibarra post a $220 appearance bond. Ibarra returned

to his vehicle where he obtained the money for the

bond, which he then gave to Mahaffey. Mahaffey,

however, found a potential problem with the vehicle’s

registration, which showed that the vehicle belonged

to Charles J. Petrocchi. Ibarra explained that he re-

cently purchased the vehicle from Mr. Petrocchi.

Because the ownership certificate and the registration

did not indicate a transfer of ownership to Ibarra,

Mahaffey requested that the dispatcher contact

Petrocchi to determine the vehicle’s ownership status.

3la

Meanwhile, a second Wyoming highway patrolman,

Gregory Leazenby, arrived at the scene and sat in the

back of Mahaffey’s patrol car.

After paying the bond, Ibarv> stated he had only

about $40 left with which to wavel to Chicago. Ma-

haffey then proceeded to question Ibarra about his

itinerary to which Ibarra reportedly gave conflicting

answers. Ibarra first stated he was traveling to Chi-

cago to visit friends. Mahaffey inquired whether

Ibarra’s friends in Chicago could send money to him

to which Ibarra answered that he would need to call

them and ask. Mahaffey continued his questioning

and asked whether Ibarra’s friends in Chicago were

“friends” or “relatives.” Ibarra replied “cousins.”

Upon further inquiry by Mahaffey, Ibarra stated he

was moving to Chicago. Observing that Ibarra was

traveling “light,” Mahaffey became suspicious and

asked Ibarra if the vehicle contained any “weapons,

large amounts of money, or controlled substances” to

which Ibarra answered, “No.” Mahaffey then asked

if he “could look at the contents” of Ibarra’s car.

Ibarra agreed. When the officers and Ibarra got out

of the patrol car, Mahaffey asked Ibarra if he could

look in the trunk. Without responding, Ibarra opened

the trunk, which revealed several nylon bags. With-

out asking whether he could search these bags, Ma-

haffey opened them but discovered nothing unusual.

Mahaffey then began to search the passenger compart-

ment, while Leazenby continued searching the trunk.

After completing the search of Ibarra’s vehicle,

which revealed nothing illegal, Mahaffey informed

Linares that Ibarra could not drive the car and that

she would need to drive it provided she had a valid

driver’s license. Linares’s driver’s license, however,

_ turned out to be expired. At this point, Mahaffey,

32a

without consulting with Ibarra, called for a private

wrecker to tow Ibarra’s vehicle into Laramie, which

was a short distance away. He then informed Ibarra

that he needed to find a licensed driver before the car

would be released.

The officers then separated Ibarra and Linares, and

transported them in separate patrol cars to the West-

ern Union station in Laramie. The officers took them

there so that they could wire for extra money and find

a licensed driver. During the trip to town, Mahaffey

used his radio to speak to Charles Petrocchi’s wife,

who was then in telephonic contact with Mahaffey’s

dispatcher. Mrs, Petrocchi confirmed that her hus-

band had in fact sold the vehicle to Ibarra. Mahaffey

also discovered at this time that Ibarra had no lia-

bility insurance for the vehicle, which is mandatory

in Wyoming.

After dropping off Ibarra and Linares at the West-

ern Union station, the officers went to Warren’s tow-

ing, the place where Ibarra’s vehicle had been towed.

Thinking they still had Ibarra’s consent to search,

they renewed their search of Ibarra’s vehicle. While

searching the trunk, Mahaffey noticed a plastic bag

behind the spare tire and, after removing it, he found

several clear plastic gloves and a large package

wrapped with duct tape. Though a cut in the tape

he saw a white powdery substance that turned out to

be cocaine. Leazenby returned to the Western Union

station to arrest Ibarra and Linares. Ibarra was

later indicted by a federal grand jury for possession

of cocaine with intent to distribute in violation of 21

U.S.C. §$ 841(a)(1) and 841(b)(1)(D) (ii). On

May 10, 1989, Ibarra filed a motion to suppress all

evidence seized during the search and all evidence

obtained therefrom, on the ground that the search

33a

violated the Fourth Amendment to the United States

Constitution for four reasons: (1) the initial stop

was unconstitutionally pretextual; (2) he revoked his

consent before the second search occurred, (3) the

seizure of his vehicle—i.e. impoundment—was unlaw-

ful; and (4) his initial consent to search was not

freely and voluntarily given. The case came before

the court for an evidentiary hearing held on Septem-

ber 12, 1989.

With few exceptions, the fourth amendment pro-

tects our right to privacy by prohibiting police from

conducting searches without a warrant issued by a

detached and neutral magistrate or court upon prob-

able cause. “The security of one’s privacy against

arbitrary intrusion by the police—which is at the

core of the fourth amendment—is basic to a free

society.” Wolf v. Colorado, 338 U.S. 25, 27 (1949).

To give effect to the fourth amendment’s guarantee

against unreasonable searches and seizures, and to

deter illegal police conduct, the court must apply the

exclusionary rule and suppress any evidence uncon-

stitutionally obtained. Nix v. Williams, 467 U.S. 431,

442-43 (1984); Wong Sun v. United States, 371 U.S.

471, 484 (1963); Weeks v. United States, 232 U.S.

383 (1914).

Some of the exceptions to the fourth amendment’s

warrant requirement include the following: (1) a

limited warrantless search following an arrest, Chi-

mel v. California, 395 U.S. 752 (1969); (2) A war-

rantless search of a vehicle as well as a warrantless

search of all containers found therein where probable

cause exists to believe the vehicle contains contra-

band, United States v. Ross, 456 U.S. 798, 825

(1982); (3) a warrantless search done pursuant to

consent, Schneckloth v. Bustamonte, 412 U.S. 218,

34a

119 (1973); (4) a warrantless inventory search of a

vehicle conducted after the vehicle has been lawfully

impounded by police, South Dakota v. Opperman, 428

U.S. 364 (1976) (plurality opinion). The govern-

ment, of course, has the burden of showing by a pre-

ponderance of the evidence that a warrantless search

comes within one of the exceptions to the fourth

amendment’s warrant requirement. Coolidge v. New

Hampshire, 403 U.S. 443, 455 (1971).

The court examines first Ibarra’s argument that

the evidence should be suppressed because the traffic

stop was a pretext for Mahaffey to investigate more

serious and unrelated criminal conduct for which he

did not have reasonable suspicion needed to justify a

detention. It is well established that a stop by police

of a vehicle to detain its occupants, no matter how

brief and limited its purpose, is a seizure within the

meaning of the fourth amendment. Delaware v.

Prouse, 440 U.S. 648, 653 (1979). Police may stop

a vehicle traveling on a public highway whenever the

vehicle is being driven in violation of the state’s motor

vehicle laws. Jd. at 663; see also United States v.

Neu, 879 F.2d 805 (10th Cir. 1989). The scope of a

police officer’s actions during a traffic stop is limited

generally to asking the driver for his license and

vehicle registration, running an NCIC check, and

issuing a warning or citation. United States v. Guz-

man, 864 F.2d 1512, 1519 (10th Cir. 1988). In a

traffic stop, the officer must allow the driver of the

vehicle to proceed on his way, without further delay

by additional questioning, once “the driver has pro-

duced a valid license and proof that he is entitled to

operate the car” unless the officer has a reasonable

suspicion that another serious crime is transpiring.

Id. at 1519.

‘

i ee ee —-

35a

A routine traffic stop for a minor traffic infraction

may be unconstitutional, however, where the stop is a

pretext for investigating more serious criminal con-

duct for which the officer has neither reasonable sus-

picion nor probable cause to justify a detention. Guz-

man, 864 F.2d at 1515. The court, therefore, must

apply the exclusionary rule and suppress any evidence

seized during a stop that it finds unconstitutionally

pretextual. Jd. at 1518. In Guzman, the Tenth Cir-

cuit adopted the following test developed by the

Eleventh Circuit for determining whether a traffic

stop is unconstitutionally pretextual: “‘A court

should ask—not whether the officer could validly have

made the stop, but whether under the same circum-

stances a reasonable officer would have made the stop

in the absence of the invalid purpose.’ ” Guzman, 864

F.2d at 1517 (quoting United States v. Smith, 799

F.2d 704, 709 (11th Cir. 1986)). (Emphasis sup-

plied by the court in Smith.) In Smith,’ the court

explained:

That an officer theoretically could validly have

stopped the car for a possible traffic infraction

[i]s not determinative. Similarly immaterial [i]s

the actual subjective intent of the deputy. [A]

stop [i]s unreasonable not because the officer

1 Smith is factually similar to this case. There, the officer

stopped a vehicle because it met the criteria of a drug courier

profile. The officer stated, however, he had both probable

cause or reasonable suspicion for the stop because the car was

traveling slightly below the speed limit and it occasionally

weaved within its lane of traffic. The court “conclude[d] that

a reasonable officer would not have stopped the car absent an

additional, invalid purpose.” 799 F.2d at 711. Unlike here,

however, the officer admitted he stopped the car based on a

drug courier profile.

36a

secretly hope[s] to find evidence of a greater

offense, but because it [i]s clear that an officer

would have been uninterested in pursuing a lesser

offense absent that hope.

799 F.2d at 710 (emphasis in original). Thus, the

resolution of this issue depends on whether Mahaffey’s

stop of Ibarra was objectively reasonable.

Under the traffic laws of Wyoming, “[a] vehicle

shall be driven as nearly as practicable entirely

within a single lane and shall not be moved from the

lane until the driver has first ascertained that the

movement can be made with safety.” Wyo. Stat.

$ 31-5-209(a)(i) (Jun. 1989). This law specifically

applies to any road “divided into two or more clearly

marked lanes,” and therefore includes an interstate.

Notably absent from the statute is the requirement

that a driver signal before changing lanes. Although

this statute does not require that a signal be used

prior to a lane change, the requirement of a signal

appears to be imposed by a different statute, which

provides “‘no person shall turn a vehicle or move right

or left upon a roadway unless and until the movement

can be made with reasonable safety nor without an

appropriate signal in the manner provided by this

section.” Wyo. Stat. § 31-5-217(a) (Jun. 1989). The

manner of the signal appears to be provided in sub-

section (b), which states that “a signal of intention

to turn right or left when required shall be given

continuously during not less than the last 100 feet

traveled by the vehicle before turning.”

Ibarra argues that this statute does not require

that a motorist signal before passing. It is beyond

dispute, however, that the statute does require that

a motorist pass only after he can do so with reason-

able safety. At the hearing in this matter, the officer

ole ee

ees ee es ee Lee

Oe bor oy

)

37a

testified that he observed Ibarra cut off a second ve-

hicle while passing, which would indicate a possible vio-

lation of Wyo. Stat. § 31-5-209(a) (i). Additionally,

Mahaffey testified that Ibarra made both passes

abruptly and that he weaved intermittently. It

would therefore appear that Mahaffey had both prob-

able cause as well as a reasonable suspicion to stop

and detain Ibarra. See, e.g., Norman v. State, 747

P.2d 520, 521-22 (Wyo. 1987) (erratic driving prob-

able cause to stop). Although this is a close case on

the pretext issue and is similar to Smith, the court

finds under the circumstances that a reasonable officer

would have been interested in stopping Ibarra inde-

pendent of any hope that he was engaged in more

serious criminal conduct.

Ibarra next argues that even assuming the first

search was constitutional, the second was not because

Ibarra had affirmatively revoked his consent to search

when he closed and locked the trunk. Initially the

Government argued that the second search was con-

ducted pursuant to Ibarra’s “continuing consent.”

Prior to the suppression hearing in this matter, how-

ever, the Government abandoned this position and

argued instead that although the second search was

illegal, see, generally United States v. Recalde, 761

F.2d 1448 (10th Cir. 1985) (second search after the

vehicle has been seized requires a second consent), it

nevertheless should be upheld under the “inevitable

discovery doctrine,” in that the cocaine would have

been discovered eventually when the officers conducted

an inventory search of the vehicle. The Government’s

argument, of course, assumes that the officers could

have conducted such a search.

An inventory search will be upheld only if it is

reasonable under the fourth amendment in light of

38a

the facts and circumstances of the particular case.

Opperman, 428 U.S. at 375. The purposes for an

inventory search are to protect the owner’s property

while in police custody; to protect the police against

claims of lost or stolen property; and to protect the

police from potential danger. Jd. at 369. In Opper-

man, the defendant’s vehicle had been seized by police

and impounded for numerous parking violations.

After impounding the vehicle, the police conducted an

inventory search and discovered contraband, which

the defendant sought to have suppressed on fourth

amendment grounds. In a plurality opinion, the Su-

preme Court upheld the search, finding that the

“police were indisputably engaged in a caretaking

search of a lawfully impounded vehicle,” and that

“(t]he owner, having left his car illegally parked for

an extended period, and thus subject to impoundment,

was not present to make other arrangements for the

safekeeping of his belongings.” Jd. at 375 (emphasis

added). Under Opperman an inventory search is rea-

sonable when, at a minimum, it is incident to a law-

ful impoundment and not conducted as “a pretext

concealing an investigatory police motive.” Jd. See

also United States v. Hellman, 556 F.2d 442, 444 (9th

Cir. 1977) (inventory search unlawful when moti-

vated by investigatory purposes) ; Benavides v. State,

600 S.W.2d 809, 810 (Tex. Cr. App. 1980) (inven-

tory search reasonable where impoundment is law-

ful). Opperman therefore establishes the unremark-

able proposition that police may impound a vehicle

where it impedes traffic or threatens: public safety

due to its immobilization or violation of a parking

ordinance. 428 U.S. at 368. In Benavides, however,

the court listed six additional categories under which

the police may lawfully impound a vehicle:

i ee oe ee ae ee eee ee

Le lh a a eR cp lh Bt ei lk et A a a le AO le ete

oe am!

39a

These included impoundment where the owner

or operator requested or consents to it; where

the vehicle is stolen or the police reasonably be-

lieve it to be stolen; if the vehicle is abandoned,

a hazard or so mechanically defective that it

creates a hazard; if the driver is arrested for

being intoxicated and there is no other person to

drive or safeguard the vehicle; when the police

are authorized by statute to impound the vehi-

cle; and where the driver is placed under cus-

todial arrest and no other alternatives are avail-

able to ensure the protection of the vehicle.

Reamey, Reevaluating the Vehicle Inventory, 19 Crim.

L. Bul. 325, 328 (1983) (citing Benavides, 600

S.W.2d at 811). Absent these factors, taking custody

of a vehicle would be an unlawful seizure. These,

however, are only rough categories so that in eval-

uating whether an inventory search is lawful the

court must find that the impoundment was prompted

by “some reasonable necessity.” State v. McDaniel,

156 N.J. Super. 347, 383 A.2d 1174, 1179 (1978).

In McDaniel the court emphasized a showing of rea-

sonable necessity as follows:

The common theme underlying these cases and

others is that something more must be shown to

justify impoundment of a car than that it would

otherwise be left unattended. There must be a

showing that some reasonable necessity prompted

the impoundment. This is a salutary rule, for

otherwise police would be authorized to freely

stop a car for a minor traffic infraction, im-

pound it and search it with impunity. Surely

such a circumstance is not consonant with the

fourth amendment.

40a

Id. (emphasis added). The court adopts this reason-

ing, which appears consistent with that of the Tenth

Circuit, requiring the government to show that “rea-

sonable necessity prompted the impoundment.” See,

e.g., United States v. Pappas, 735 F.2d 1232, 1234

(10th Cir. 1984) (inventory search of a vehicle un-

lawful where the police had no reasonable need to

impound the vehicle).

The government argues that impoundment was

statutorily authorized for three reasons: (1) a li-

censed driver was unavailable to drive Ibarra’s vehi-

cle; (2) Ibarra did not have liability insurance; (3)

the car was threatening public safety because it was

parked along the interstate on a curve. As previously

noted, an inventory search is reasonable only where

the initial taking of custody of the vehicle has been

considered lawful, such as where it is authorized by

statute. At the hearing in this matter, Officer Mahaf-

fey testified that he had authority to take custody of

Ibarra’s vehicle pursuant to the “Wyoming Legis-

lature.” Examining the relevant Wyoming statutes,

cited to the court by the defendant, the court finds

that a police officer may take custody of a vehicle

under limited circumstances. The law in effect at

the time of this incident provided in relevant part

as follows:

Any police officer may remove or cause to be

removed to the nearest garage or other place of

safety any vehicle found upon a highway when:

(i) Report has been made that the vehicle

has been stolen or taken without consent of

its owner;

AAD BP eal nett BNE Ge Ai ttm PK Lette es. Sal ih

We ee eget, ere wt Sw oh

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‘

4la

(ii) The person in charge of the vehicle is

unable to provide for its custody or removal;

(iii) When the person driving or in control

of the vehicle is arrested for an alleged of-

fense for which the officer is charged by law

to take the person arrested before a proper

judge without unnecessary delay.

Wyo. Stat. § 31-5-508(c) (1984). Under the facts

of this case, Mahaffey was authorized under Wyoming

law to take lawful custody of the vehicle at issue

under four circumstances: (1) where a report had

been received by him that the vehicle was stolen or

(2) being operated without the owner’s permission;

(3) Ibarra had been arrested for a serious offense; or

(4) Ibarra was unable to provide for the car’s cus-

tody or removal, which of course requires that there

be a need for a lawful custody or lawful removal.

At the hearing, Mahaffey’s testimony indicated

that he had no report that the 1981 Oldsmobile driven

by Ibarra was stolen or being operated without the

owner’s consent. Instead, the evidence was to the

contrary. There was no evidence that Ibarra could

have been or was arrested for a serious offense. Al-

though Ibarra could have been arrested for the minor

offense of operating a motor vehicle without a license,

the evidence showed that he was in fact not arrested.

Ibarra was instead allowed by law to post a bond

securing his court appearance at a later date. Even

assuming he was unable to post a bond, it is doubtful

Mahaffey could have seized and impounded his vehi-

cle for this offense. See Dyke v. Taylor Implement

Manufacturing Co., 391 U.S. 216 (1968).

The government argues that the vehicle, by being

parked along the interstate, was threatening public

42a

safety, requiring that the officers remove the vehicle

because Ibarra apparently was unable to do so, Aside

from the fact Mahaffey never gave Ibarra an oppor-

tunity to arrange for the removal of his vehicle, the

court finds the argument unsupported by the facts in

the record. Although Mahaffey testified at the hear-

ing that the vehicle was parked along the interstate

on a curve, where it purportedly could have caused an

accident, the court finds this testimony undercut by

the fact Mahaffey detained Ibarra at the same loca-

tion while he performed a routine traffic check and

later a search of Ibarra’s vehicle. Ibarra was stopped

at approximately 3:00 p.m. and the wrecker arrived

approximately 45 minutes later. Evidently the vehi-

cle was parked approximately two and one-half feet

off the side of the road. Notwithstanding Mahaffey’s

concern that the vehicle might cause an accident, no

evidence was offered that Mahaffey made an attempt

to move the vehicle from the shoulder of the high-

way. No evidence was offered that this could not have

been done. Assuming Ibarra could not arrange for

the-removal of his own vehicle, the court finds that a

less intrusive move of the vehicle was a reasonable

alternative to impoundment. If safety was the real

concern, the vehicle was capable of mobility and a

slight move to the right could have placed it in a

safer location where it could have been left parked

with its doors locked and with Ibarra keeping the

keys. In the final analysis, however, and in obvious

contrast to Opperman, the defendant here was capa-

ble of making other arrangements to safeguard his

property. If a need in fact existed for Ibarra to move

the vehicle, he was plainly capable of making those

arrangements with a private towing “service of his

choice to a destination of his choice and he was

DAL AP eS 2

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;

}

{

43a

present and physically capable of making the arrange-

ments for the safekeeping of his belongings.” State

v. Travitz, 140 Ga.App. 351, 231 S.E.2d 127, 128

(1976) (impoundment unnecessary where the driver

is present and capable of arranging for the care of

an immobilized vehicle).

The statute upon which the government relies does

not permit the police to seize a vehicle when the

driver is without a driver’s license. The government,

however, asserts that the statute must be read “to fit

the reality of the situation.” Here, Ibarra was from

another state and was driving with a suspended driv-

er’s license in Wyoming. Further, he had no liability

insurance. Thus, according to the Government, if

Ibarra had been allowed to make his own arrange-

ments regarding the disposition of his car, he prob-

ably would have driven it away before renewing his

license and obtaining liability insurance. The Gov-

ernment’s argument, is speculative and _ ignores

Ibarra’s clear right to control the disposition of his

property. He did not lose that right simply because

his license was under suspension. In Wyoming, hav-

ing a valid driver’s license is not a prerequisite to

owning a motor vehicle. The same is true for liabil- -

ity insurance. Further, the insurance problem was

irrelevant to Mahaffey’s decision to seize the vehicle

because he discovered it after he had called the

wrecker and separated Ibarra from his vehicle. The

court concludes that the impoundment was _ not

prompted by reasonable necessity and was clearly un-

lawful. Therefore, any inventory search conducted

pursuant thereto was unreasonable and in violation

of the fourth amendment.

Even assuming, however, the impoundment was

proper the court finds that the contraband would not

44a

necessarily have been discovered pursuant to an in-

ventory search. Unlawfully seized evidence is admis-

sible where it inevitably would have been discovered

in the same condition by an independent, lawful po-

lice investigation. Nix, 467 U.S. 431 (1984); United

States v. Owens, 782 F.2d 146, 152 (10th Cir. 1986).

In Nix the defendant led police to the body of a ten

year old girl whom the defendant had murdered. The

court held that the evidence of the body and its con-

dition was admissible even though the police found

the evidence by unconstitutionally eliciting admissions

from the defendant. The body would have been dis-

covered without the defendant’s admissions because an

active police search was quickly approaching the loca-

tion of the body and therefore the evidence would have

been discovered in any event. The court recognized

that the inevitable discovery doctrine created a needed

exception to the exclusionary rule because the doc-

trine ensured that “the interest of society in deterring

unlawful police conduct and the public interest in hav-

ing juries receive all probative evidence of a crime

are properly balanced by putting the police in the

same, not a worse, position that they would have been

in if no police error or misconduct had occurred.”

Niz, 467 U.S. at 443 (emphasis in original).

The Government now argues that the unlawfully

seized evidence is admissible because Mahaffey would

have discovered it lawfully when he conducted an in-

ventory search of the impounded vehicle. Although

under Opperman it would have been proper to con-

duct an inventory search of Ibarra’s vehicle incident

to a lawful impoundment, it does not follow that an

inventory search was inevitable. To prevail on its

inevitable discovery argument, the government must

show not only that the officer’s inventory search of

45a

the vehicle would have led to the discovery of the co-

caine, but also, and even more important to fourth

amendment analysis, “that it was inevitable that such

a search would be conducted.” United States v. Gor-

ski, 852 F.2d 692, 696 (2d Cir. 1988). See also Hell-

man, 556 F.2d at 444 (invent.-y search unlawful

where it was not the routine praccice of the searching

officer). In Gorski the defendant was convicted of a

drug offense. After FBI agents arrested and hand-

cuffed the defendant, they illegally searched his bag

and found the contraband that led to his convinction.

In responding to the Government’s argument that the

evidence was admissible under the inevitable discov-

ery rule in that an inventory search would have been

performed during the defandant’s booking, the court

noted that “[a] thorough review of the record reveals

no evidence that such searches were an invariable,

routine procedure in the booking and detention of a

suspect at the particular FBI office involved.” Jd.

The Second Circuit remanded the case to the district

court for an evidentiary hearing on this factual issue.

At the evidentiary hearing held in this case, Mahaf-

fey testified at great length concerning when he con-

ducts an inventory search and the extent of his

searches. He testified that he generally impounds and

inventories a vehicle whenever the driver is arrested

or the car has become disabled by ah accident. Neither

condition occurred here. In describing the depth of

his inventory searches, Mahaffey testified that he gen-

erally looks into almost every conceivable place where

valuables can be hidden. This includes looking under

the engine hood and even into the air filter. He also

looks into the spare tire well because one time approxi-

maiely three years ago he found a box in a spare tire

well containing $7,000 worth of jewelry. When ques-

46a

tioned about specific instances of impoundment, Offi-

cey Mahaffey testified about many occasions in which

he had impounded vehicles but failed to conduct an

inventory. For example, in January 1988, Mahaffey

took into custody a Raleigh Sheer, Jr. Sheer’s vehicle

was towed and impounded. He stated, however, that

he did not recall inventorying that vehicle.

In April 1988 Mahaffey was involved in the arrest

of a Kenneth Elsten. Evidently Elsten had been in a

vehicular accident on I-80 at the time of his arrest by

Sgt. Dennis Wilson. Mahaffey, who was on the scene,

had the vehicle towed and impounded at a private

wrecking service. Mahaffey, however, did not inven-

tory the vehicle.

In April 1988 Mahaffey took into custody an Irving

Couch. Although Couch’s car was towed and im-

pounded, Mahaffey did not inventory the vehicle. He

explained that the vehicle was a hatchback and that

he did not need to inventory it because he could see

there was nothing to inventory. Evidently the glove

box was open. Although there was no evidence con-

cerning whether the engine hood was open, Mahaffey

apparently did not look under it or into the air filter.

Nor did he check the spare tire area.

In October 1988 Mahaffey arrested a David Far-

rington who was evidently AWOL from the Unjted

States Navy. Farrington’s car was towed to Warren

Air Force Base in Cheyenne, Wyoming, where it was

turned over to military police. Thus, Mahaffey evi-

dently did not have to inventory Farrington’s vehicle.

On December 1, 1988, Mahaffey arrested a Ronald

Jensen. Jensen’s vehicle was towed and impounded.

Mahaffey, did not inventory it because it had been

severely damaged in an accident, making it difficult

‘for him to gain access to the car’s passenger com-

—_— oe te en

—"

47a

partment without great expense to the vehicle’s owner.

Mahaffey did not state whether he conducted an in-

ventory search of the engine compartment to look

into the car’s air filter.

On February 27, 1989, Mahaffey stopped a vehicle

on I-80 for speeding. After being informed by the

dispatcher that the vehicle was wanted in connection

with a runaway girl from California, a Latanya

Ayres, Mahaffey arrested the driver. Both the vehicle

and its occupants were turned over to the Laramie

County Sheriff’s Department. Mahaffey again did not

inventory the vehicle, presumably because he turned it

over to the sheriff’s department.

On May 4, 1989, Mahaffey was dispatched to the

Lone Tree service station in Albany County because

of a report he received of a vehicle fire. Upon arriv-

ing, he observed that the vehicle in fact had been on

fire and that its contents were scorched. The car was

impounded near the scene. Mahaffey stated he did

inventory this vehicle. This is the only specific inci-

dent involving an impoundment and inventory de-

scribed by the officer.

Also in May 1988 Mahaffey arrested Donald Jones

for driving while intoxicated. The vehicle was towed

and impounded but Mahaffey did not inventory it be-

cause it was obvious to him there was nothing to in-

ventory. Evidently, the trunk was open as well as

the glove box and the spare tire was on the ground.

Although Mahaffey testified that his inventory

searches are generally very detailed, he evidently was

unconcerned about conducting this type of an inven-

tory search on this occasion. The air filter, which

was evidently intact, was not searched.

linally, on May 10, 1989, he stopped a person by

the name of Singlethy, who had been traveling on

48a

I-80. Evidently Mahaffey stopped him because an

NCIC check revealed that the car’s license plate was

stolen from Sacramento, California. No evidence was

offered on whether the plate was in fact stolen. Ap-

parently it was not because Singlethy was not ar-

rested. Singlety did not have a driver’s license but

his passenger did. Thus, Mahaffey did not seize the

vehicle.

Although it may be the policy of the Wyoming

Highway Patrol to inventory vehicles it impounds, it

is clear from the evidence that it is not necessarily the

routine practice of Officer Mahaffey. The court finds

that the Government has not met its burden of show-

ing that it was inevitable that Mahaffey would have

conducted an inventory search of Ibarra’s vehicle.

Instead, the evidence indicated that such searches were

not an invariable routine procedure of this officer. As

the Ninth Circuit noted in Hellman, inventory

searches are reasonable only when it is shown to be

the routine practice of both the particular police de-

partment as well as the individual officer involved in

the search. 556 F.2d at 444, Adhering to the “prac-

tice gives some assurance that a particular car was

not singled out for special searching attention. Ab-

sent such assurance some special reason for the tak-

ing of safeguarding or security precautions that are

not customarily taken should exist if the intrusion

“resulting from the taking of such precautions is to be

rendered reasonable under the fourth amendment.”

Id.

Finally, even assuming that the inventory search

was inevitable, which the court finds it was not, the

Government still must show that it was motivated by

“non-investigatory purposes.” Hellman, 556 F.2d

443-44. Although Mahaffey testified he intended to

49a

impound Ibarra’s vehicle, he later stated under ques-

tioning from the court that he thought he was search-

ing the vehicle pursuant to a continuing consent. His

testimony is consistent with Officer Leazenby’s report,

which states that the intent of the officers was to take

custody of the vehicle so that they could search it in

a more secure location. Particularly, Leazenby was

interested in searching the spare tire area because he

had notice some plastic bags under the spare tire. In

its supplemental memorandum filed with this court,

the Government states that Mahaffey had removed

Ibarra’s suitcases from the trunk of the car “in order

to facilitate their inventory.” Mahaffey continued his

search of the trunk principally near the spare tire

where Leazenby had noticed the plastic bags. While

Leazenby began a search of the suitcases for firearms,

large sums of money and controlled substances, that

is, for possible instrumentalities of crime, fruits of a

crime and, of course, contraband. Thus, both the in-

vestigatory search as well as the inventory search

overlapped each other. The court is compelled to con-

clude that the inventory search, assuming it was in-

evitable, was tainted by an investigatory motive mak-

ing it unreasonable under the fourth amendment. In

light of the court’s decision, it need not address the

issue whethe Ibarra freely and voluntarily consented

to the first search. .

The defendant also has moved to suppress a state-

ment he made to agents of the Wyoming Division of

Criminal Investigation soon after his arrest. Al-

though he made the statement after he was given his

Miranda warnings, the defendant asserts it must be

suppressed because the statement was “fruit of the

poisonous tree.” The court agrees. Evidence gen-

erally is fruit of the poisonous tree whenever it is

obtained as a result of prior police misconduct. Wong

50a

Sun v. United States, 371 U.S. 471 (1963). It is

well-established that the “[e]xclusionary rule applies

not only to the illegally obtained evidence itself, but

also to other incriminating evidence derived from the

primary evidence.” Nix, 467 U.S. at 441. However,

the question that must be asked in determining

whether evidence is fruit of the poisonous tree is

“whether, granting establishment of the primary il-

legality, the evidence to which instant objection is

made has been come at by exploitation of that illegal-

ity or instead by means sufficiently distinguishable to

be purged of the primary taint.’” Wong Sun, 371

U.S. at 488 (quoting Maguire, Evidence of Guilt at

221 (1959). The defendant made this statement soon

after he was arrested and taken into custody. He

would not have been arrested but for the prior police

misconduct and clearly no intervening, attenuating

event occurred to dissipate the taint.

The defendant has asked the court to quash the

Indictment against him evidently because the evidence

leading to the Indictment was illegally obtained. It

would appear that the defendant’s remedy would be to

ask the court that it release him on bail from pretrial

jetention. Now, in accordance with this opinion,

IT IS HEREBY ORDERED that the defendant’s

motion to suppress all evidence seized during the

search and as a result of the search, including all

Statements obtained from him after his arrest, be,

and the same hereby is, GRANTED.

Dated this 15th day of November, 1989.

By the Court:

/s/ Alan B. Robinson

ALAN B. RoBINSON

United States District J udge

5la

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 90-8018

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

ALEJANDRO GARCIA IBARRA, DEFENDANT-APPELLEE

ORDER

Filed February 12, 1991

Before HOLLOWAY, Chief Judge, MCKAY, LOGAN,

SEYMOUR, MOORE, ANDERSON, TACHA,

BALDOCK, BRORBY, EBEL, Circuit Judges, and

KANE, District Judge.*

Appellant’s petition for rehearing is denied by the

panel of judges who rendered the decision sought to

be reheard.

Pursuant to Fed. R. App. P. 35(b), the suggestion

for rehearing en bane was transmitted to the mem-

* The Honorable John L. Kane, Jr., Senior United States

District Judge for the District of Colorado, sitting by desig-

nation.

52a

bers of the panel and the judges of the court in regu-

lar active service. No judge having called for a poll,

the suggestion for rehearing en banc is denied.

Entered for the Court

ROBERT L. HOECKER

Clerk

By: /s/ Patrick Fisher

PATRICK FISHER

Chief Deputy Clerk

w ov. s. covernmenr PRINTING OFFICE, 19901 262061 20492

OO TE OE - e

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