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United States v. Kalb

United States District Court, E.D. Pennsylvania

January 13, 2017



          Gerald Austin McHugh United States District Judge.

         In this case, Defendant Eric Kalb, who purports to have witnessed, but not participated in, vandalism to federal property, used a payphone to report anonymously that his friend was electrocuted while stripping copper from an electrical box. He then attempted to leave the area but was stopped by police, leading to a potentially incriminating statement under interrogation. I suppressed Kalb's statement as the fruit of an unlawful stop, and the Government now moves for reconsideration of my decision.

         Although it does not entirely abandon its position that Kalb was appropriately stopped under the rule of Terry v. Ohio, 392 U.S. 1 (1968), the Government now mainly argues that Kalb was sought only as a potential witness, rendering the officers' conduct lawful under Illinois v. Lidster, 540 U.S. 419 (2004). The defense is correct that the Government's newly minted argument, which is conceptually inconsistent with the Government's initial justification for the stop, does not qualify as a basis for reconsideration under the prevailing standard for such motions. But even if I were to overlook the test for granting reconsideration, I would not vacate my earlier Order suppressing the evidence because Lidster has no applicability on the facts of this case. The Government's Motion will therefore be denied.

         I. The Government Fails to Meet the Prevailing Standard for Reconsideration.

         A motion for reconsideration should be granted only where the party seeking it can show an intervening change in the controlling law, the availability of new evidence that was not previously available, a clear error of law, or the need to prevent manifest injustice. N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995). This standard applies with equal force in criminal cases, United States v. Dupree, 617 F.3d 724, 732 (3d Cir. 2010), even though the stakes there are generally higher.[1]

         Preliminarily, the defense argues that the Motion should be rejected as untimely. I disagree. In a conference call with the Court on October 29, 2016, the Government made clear that it sought leave to review the transcript of the suppression hearing before proceeding, and the Court scheduled a status conference for November 29. At a minimum, it would be understandable if the Government interpreted the Court's actions as granting it a 30-day extension. The transcript became available on November 14, and the Government's Motion was filed on November 29, after providing notice to the Court that it would be slightly delayed because of a competing trial listing. Rigid enforcement of the Local Rule governing timeliness of motions for reconsideration would be inconsistent with the collegial manner in which counsel have dealt with each other, and dealt with the Court.

         Timeliness aside, however, the Government cannot meet its burden on reconsideration. The Court of Appeals has made clear that motions for reconsideration “are granted for ‘compelling reasons, ' such as a change in the law which reveals that an earlier ruling was erroneous, not for addressing arguments that a party should have raised earlier.” Dupree, 617 F.3d at 732. In particular, the Third Circuit has advised that motions for reconsideration are not a vehicle through which the Government can advance arguments “piece by piece.” Id. at 723.

         In pressing its Terry theory, the only new perspective offered by the Government is an argument that Kalb's use of the term “scrapping” when he made the anonymous phone call reporting the incident had special significance for law enforcement. Specifically, the Government suggests that such a term would only be used by someone experienced in criminal vandalism, providing the officers with a heightened reason to suspect Kalb of wrongdoing. This is an argument that could as well have been made earlier, and as such not a proper basis for reconsideration. Beyond that, it has little force, because the Government itself concedes, as it must, that not all scrapping is illegal. Tr. of Oral Arg. 141:11-142:22. Scrappers are a fact not just of urban life, but indeed anywhere there is curbside pick-up of trash and recycling. See Id. at 22:14-24 (testimony of Officer Raymond Emrich). Their conduct is not illegal unless it amounts to vandalism. Consequently, mere familiarity with the term does not suggest criminality.

         As to attenuation of the taint from the unlawful stop, the Government wholly failed to raise such an argument previously, and it is therefore waived.

         As to the vehicle stop itself, having failed to prevail under Terry, the Government now advances an entirely new, alternative theory under Lidster. Significantly, as discussed more fully on the merits below, such a theory is far removed from what the Government initially argued. Failure to address Lidster can hardly be claimed “clear error” by the Court, when the Government initially failed to advance Lidster as a justification for the officers' actions. Finally, even if Lidster might arguably apply, suppression of Kalb's statement on the record here hardly rises to the level of “manifest injustice.” For all of these reasons, reconsideration is properly denied. I will, nonetheless, address the Government's new theory.

         II. Lidster Cannot Be Extended to an Individualized Stop for the Purpose of Determining Whether a Motorist Might Be a Witness.

         Illinois v. Lidster, 540 U.S. 419 (2004), arose out of a police investigation into a fatal hit-and-run accident on a highway. Lacking any leads, approximately one week after the accident the police established a checkpoint near the scene. At the checkpoint, police stopped each vehicle for approximately 10 to 15 seconds so that motorists could be asked if they had seen anything and be given a flyer requesting assistance. After a motorist approached the checkpoint while intoxicated and was then apprehended when he attempted to backtrack, he challenged the checkpoint as unlawful under the Fourth Amendment. The Supreme Court concluded that these brief “information-seeking” stops were not unreasonable because the public interest in solving the crime outweighed the brief and limited detention of motorists.

         Lidster sanctioned the use of a generalized investigative technique that was applied equally to every member of the public, without any exercise of discretion by police. I am not persuaded that those same principles can be invoked to justify an individualized stop of a particular motorist for the purpose of determining whether he might be a witness. The Lidster Court took pains to emphasize the circumstances under which motorists were stopped:

[T]he context here (seeking information from the public) is one in which, by definition, the concept of individualized suspicion has little role to play. Like certain other forms of police activity, say, crowd control or public safety, an information-seeking stop is not the kind of event that ...

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