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United States of America v. Paul Perminter

February 28, 2012


The opinion of the court was delivered by: Judge Nora Barry Fischer



Presently before the Court is the Government's Motion for Reconsideration of the Court's January 30, 2012 Memorandum Opinion and Order granting Defendant Paul Perminter Jr.'s ("Defendant") motion to suppress evidence in this case. (Docket Nos. 62, 63). In that decision, the Court ruled that the evidence seized by parole and police officers during a warrantless search of Defendant's apartment was obtained in violation of his Fourth Amendment rights and suppressed all such evidence as well as Defendant's statements to law enforcement as fruit of the poisonous tree. (Docket No. 57); see also United States v. Perminter, Cr. No. 10-204, 2012 WL 273349 (W.D.Pa. Jan. 30, 2012). The Government maintains that this decision should be reconsidered and alleges that the Court overlooked prevailing precedent, including Samson v. California, 547 U.S. 843, 846 (2006) and committed several other factual and legal errors in its findings of fact and conclusions of law supporting its ruling to suppress the challenged evidence in this case. (Docket No. 63). Defendant counters that the Court should not reconsider its decision on the basis of the Government's argument relying on its interpretation of the Samson decision because this argument was not previously raised by the Government. (Docket No. 66). Defendant further maintains that the Court's factual findings and legal conclusions are supported by the evidence and prevailing precedent. (Id.). Upon consideration of the parties' positions, and for the following reasons, the Government's Motion [62] is DENIED.


The Court's findings of fact and conclusions of law are set forth in the January 30, 2012 Memorandum Opinion and, given the parties' familiarity with the matter, need not be fully restated here. (Docket No. 57). Instead, the Court will focus its analysis on the facts and law relevant to the instant motion for reconsideration.

At the outset, the Court notes that the parties were given a full and fair opportunity to thoroughly litigate Defendant's motion to suppress as the parties were ordered to: (1) submit pre-hearing briefing in accord with the deadlines set forth in the Local Rules of Court for the Western District of Pennsylvania, see W.D.Pa.LCrR 12.C., and this Court's Orders extending said deadlines, (see Docket Nos. 18, 20, 26, 32); (2) present evidence and oral argument at a motion hearing on October 12, 2011, (see Docket No. 55); and (3) file proposed findings of fact and conclusions of law and responses to same after the hearing pursuant to a post-hearing briefing schedule, (see Docket No. 49). As the Court pointed out in its decision, the Government's initial response to Defendant's suppression motion was accepted by the Court as a nunc pro tunc filing necessitated by the Government's failure to abide by the 14-day response deadline in the Local Rules. (Docket Nos. 31, 32). The Government did not submit proposed findings of fact and conclusions of law or any response to Defendant's proposed findings of fact and conclusions of law pursuant to the Court's post-hearing deadlines. (See Docket No. 49). It also did not seek prior extensions of any of these deadlines. As a consequence, the Court took the matter under advisement as of January 18, 2012 and issued its decision on January 30, 2012. (Docket No. 57).

The suppression issue that was argued before the Court in the parties' briefing and during the suppression hearing was whether Parole Officer William Kimmel had reasonable suspicion to believe that Defendant had committed a crime or parole violation prior to conducting a warrantless search of Defendant's apartment on June 18, 2009. (See Docket No. 57 at 13). The parties never disputed that reasonable suspicion was the appropriate legal test to be applied in this case. To this end, Defendant argued in all of his briefing and at oral argument that the search of his residence was unlawful because it was not based on reasonable suspicion. (Docket Nos. 30, 34, 55, 56). Likewise, the Government clearly conceded that reasonable suspicion was the relevant standard in this case in both its pre-hearing brief and during argument at the motion hearing. (Docket No. 33, 55). For example, in its brief, the Government explicitly stated, among other things, that:

Parole officers may conduct warrantless searches of parolees and their residences based on "no more than reasonable suspicion" of parole violations. Knights, 534 U.S. at 119; Griffin v. Wisconsin, 483 U.S. 868, 873 (1987); United States v. Baker, 221 F.3d 438, 443-44 (3d Cir. 2000); United States v. Hill, 967 F.2d 902, 910 (3d Cir. 1992). (Docket No. 33 at 24, ¶ 5). Government counsel then repeatedly argued that reasonable suspicion was the appropriate standard at the motion hearing. (See Docket No. 55 at 8, 13, 134, 135, 136, 137, 145, 147, 148). In fact, government counsel stated the following:

The [ . ] reasonable suspicion standard is what we both cite and a lot of similar cases are cited in both briefs. Although, obviously, we draw opposite conclusions from it. And I think what we're looking at here is a very fact-specific situation for the Court.

So, I don't think there is any need to haggle over the actual law. (Id. at 134).

In its brief, the Government cited Samson for the proposition that the Court must look to the totality of the circumstances to determine if a search was reasonable under the Fourth Amendment. (Docket No. 33). Except for this citation to Samson for a generally well-settled legal proposition, the Government never took the position that the Samson decision overruled Third Circuit jurisprudence that reasonable suspicion was required before a warrantless search could be conducted pursuant to the standard Pennsylvania parole condition at play in this case. (Id.; see also Docket No. 55). On the other hand, Defendant raised the Samson decision for a completely different purpose: to argue that the contours of the Fourth Amendment rights of a parolee are determined, in part, by looking to state law. (Docket No. 55 at 124). Thus, the Court did not address the import of Samson in its Memorandum Opinion as that decision was only casually raised by the parties and the legal standard was not in dispute.

In brief summary, the Court held that the Government failed to meet its evidentiary burden to demonstrate that Parole Officer William Kimmel -- the only witness called by the Government at the hearing -- had reasonable suspicion of any alleged criminal acts or parole violations by Defendant prior to conducting the tactical warrantless search of his apartment at 8:19 a.m. on a Thursday morning along with a contingent of other fully armed parole and police officers. (See Docket No. 57). The Court found, among other things, that Kimmel relied only on an anonymous tip from an unidentified telephone informant that Defendant possessed drugs and a gun inside the apartment but made no effort to corroborate the allegations of same before executing the search and that this evidence did not amount to reasonable suspicion under the law. (Id.). As a consequence, the Court ordered that the evidence seized from Defendant's apartment be suppressed along with all statements Defendant made to law enforcement. (Id.).

The Government filed its motion for reconsideration one week after the Court's decision, on February 6, 2012. (Docket No. 63). In support of same, the Government comments that it "acknowledges and regrets" its failure to follow this Court's Order directing it to file proposed findings and fact and conclusions of law but provides no explanation for its counsel's dilatory behavior. (Id. at 1). Instead, the Government assails the Court's analysis of the evidence in the instant case and maintains that the Court overlooked prevailing precedent in its decision. (Id.). Defendant filed his brief in opposition on February 13, 2012. (Docket No. 66). He argues that the Court should not reconsider its rulings on his suppression motion. (Id.). Neither party has sought leave of court to submit any further briefing and/or requested that the Court hold oral argument. As a result, the Court considers the present motion fully briefed and ripe for disposition.


The purpose of a motion for reconsideration "is to correct manifest errors of law or fact or to present newly discovered evidence." Kabacinski v. Bostrom Seating, Inc., 98 F. App'x 78, 81 (3d Cir. 2004) (quoting Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985)). Because "federal courts have a strong interest in the finality of judgments," United States v. Hoey, Cr. No. 09-200, 2011 WL 748152, at *2 (W.D.Pa. Feb. 15, 2011) (citation omitted), the standard that must be met to prevail on a motion for reconsideration is high, see Berry v. Jacobs IMC, LLC, 99 F. App'x 405, 410 (3d Cir. 2004).

The Court may grant a motion for reconsideration if the moving party shows: (1) an intervening change in the controlling law; (2) the availability of new evidence which was not available when the court issued its order; or (3) the need to correct a clear error of law or fact or to prevent a manifest injustice. United States v. Banks, Crim No. 03-245, 2008 WL 5429620, at *1 (W.D.Pa. Dec. 31, 2008) (citing Max's Seafood Cafe by Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)). A motion for reconsideration is not a tool to re-litigate and reargue issues which have already been considered and disposed of by the Court, see Hoey, 2011 WL 748152, at *2 (citation omitted), or for addressing arguments that a party had the opportunity to raise before the Court's decision, see United States v. Dupree, 617 F.3d 724, 732-33 (3d Cir. 2010) (quotations ...

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