Friday, April 21, 2017

District Court Properly Denied Motion to Reconsider Suppression Order; Government's Argument Was Untimely

U.S. v. Verner, 659 Fed. Appx. 461 (10th Cir. 8/9/16) (Okl.) (unpub'd) - The government is hoisted on the same petard we often get hoisted on. The district court granted a motion to suppress evidence discovered after a de facto arrest without probable cause. After getting over the shock, the government moved for reconsideration on the ground that there was no nexus between the illegal arrest and the evidence discovery because the officers had probable cause before the arrest when they smelled marijuana in Mr. Verner's car. The government had not made the marijuana-smell argument until then. The district court denied reconsideration because the argument was untimely. The 10th rejects the notion that the district court addressed the nexus issue when it found there was a nexus based on Mr. Verner's assertion that there was one. The 10th refuses to conclude that by doing so the district court rejected every hypothetical argument against the nexus' existence. The 10th says those oh-too-familiar words: "raising a related issue below isn't sufficient to preserve an issue on appeal." The 10th finds no abuse of discretion in denying the reconsideration on timeliness grounds.