United States District Court, E.D. Pennsylvania
Austin McHugh United States District Judge.
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.
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.
The Government Fails to Meet the Prevailing Standard for
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
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.
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.
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.
attenuation of the taint from the unlawful stop, the
Government wholly failed to raise such an argument
previously, and it is therefore waived.
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.
Lidster Cannot Be Extended to an Individualized Stop
for the Purpose of Determining Whether a Motorist Might Be a
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.
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