United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
PAUL W. GRIMM, District Judge.
Defendant seeks to reopen the hearing (which consumed six days of court time, spread over a period of four months) on his motion to suppress, which I denied on the record on May 15, 2014 finding, inter alia, that the search of a shipping pallet by a private shipper had not been performed at the government's behest and, therefore, was not covered by the Fourth Amendment. Defendant argues that the hearing should be reopened so that I can consider evidence that "became relevant" only after I issued my prior ruling, and that he had not located until after the hearing. I find that the evidence Defendant identifies relates directly to issues that were fully addressed at the hearing and was available to Defendant at the time, and that the mere fact that he did not then choose to locate or introduce it is not a sufficient basis to reopen the hearing now. Moreover, even were the hearing reopened, the evidence identified in Defendant's motion would not alter my original ruling. Accordingly, I deny the motion.
The record in this case is particularly lengthy, and the instant motion constitutes the third round of briefing on motion to suppress that, as noted, already has occupied six days of hearings over the course of four months and well over one thousand pages of exhibits. In light of the length of the record, only those facts most relevant to this motion will be summarized here.
Defendant Leonaldo Harris is charged with seven counts arising out of his alleged possession with the intent to distribute marijuana and related activities. Superseding Indictment, ECF No. 94. Harris initially filed a boilerplate Motion to Suppress Evidence Secured by Search and Seizure, ECF No. 25, on June 7, 2014, which he supplemented by filing a Motion to Suppress and Incorporated Memorandum of Law ("Def.'s Mot. to Suppress"), ECF No. 64, on November 4, 2013 seeking to suppress, inter alia, the fruits of a warrantless search of shipping pallets containing a large quantity of marijuana performed by an employee of YRC Freight Company ("YRC"), id. at 1. Among the grounds for suppression, Harris argued that YRC, though a private company, performed the search as an agent of the government due to its participation in the Customs-Trade Partnership Against Terrorism ("C-TPAT") program, and that the employee who searched the pallets " intended to assist law enforcement through his actions." Def.'s Reply to Consolidated Resp. of the U.S.A. to Def. Harris's and Sims's Pretrial Mots. 2-5, ECF No. 68. Although ordinarily a search by a private actor is not subject to the requirements of the Fourth Amendment, Harris argued that the relationship between YRC and the government implicated the Fourth Amendment and required suppression of the fruits of the search. Id. at 3. At that time, the trial in this case was scheduled to commence on April 22, 2014, Letter Order, ECF No. 55, and a pretrial motions hearing was scheduled for January 13, 2014, Paperless Order, ECF No. 63.
On January 12, 2014, Harris filed a letter informing the Court that he had not yet received a full response to subpoenas he had served on YRC and its subsidiary seeking information about the nature of its cooperation with Customs and Border Protection ("CBP") through C-TPAT. Letter from Kenneth Ravenell to the Court (Jan. 12, 2014), Resp. of U.S.A. to Def. Harris's Mot. to Reopen the Record and Hearing ("Gov't's Reopen Opp'n") Ex. A, ECF No. 132-1. The letter asked me either to continue the motions hearing or, in the alternative, to leave it open for further evidence after a full response to the subpoenas was received. Id. at 3. I denied the request for a continuance, Jan. 13, 2014 Tr. 5:22 - 6:1, but at the conclusion of the hearing on January 13, 2014, I gave the parties the opportunity to present further briefing and evidence based on the information produced in response to the subpoenas, id. at 268:15 - 269:10.
On March 14, 2014, Harris filed his supplemental brief under seal, accompanied by twenty-one exhibits comprising over 500 pages. See Def.'s Post-Hrg. Supp. Br. ("Def.'s Supp. Br."), ECF No. 86. The Government responded on March 31, 2014, Resp. of U.S.A. to Def. Harris's Supp. Br. ("Gov't's Supp. Resp."), ECF No. 100, and further proceedings were held on the Motion to Suppress on April 14, 2014. Criminal Minutes, ECF No 103. After a full day of testimony was insufficient to complete the hearing, it was continued to the following week, requiring postponement of the trial date. Id. Further proceedings were held over four more days-April 25, April 29, April 30, and May 15, 2014, Criminal Minutes ECF Nos. 108-111. Over the six days of hearings, the Court heard testimony from ten witnesses: Clifford Shaw, YRC Corporate Security Manager; Steven Krupinsky, C-TPAT Chief of International Branch; Karl Cruse, the C-TPAT Supply Chain Security Specialist assigned to YRC; Patricia Scott, YRC Border Management Services Analyst II; Barry Brandman, Defendant's expert in C-TPAT and supply chain security; Robert Wood, a YRC Dock Supervisor; Scott Fidler, Pennsylvania State Trooper; Michelle Gage, YRC Credit Risk Manager; James Stull, Homeland Security Investigations ("HSI") Special Agent; and Tommy Arrowood, the YRC Weights & Inspection ("W&I") Coordinator who actually performed the search and who testified twice.
Following argument from counsel, I issued a lengthy opinion from the bench in which I denied the Motion to Suppress at the close of proceedings on May 15, 2014. Relying on Skinner v. Railway Labor Executives' Association, 489 U.S. 602 (1989), and its progeny, I noted "that the Fourth Amendment protects against search and seizures by private parties when they are acting as agents of the government, " a determination that "turns upon the degree of the government participation in the private party's activities" under "the totality of the circumstances." May 15, 2014 Tr. 5:4-15, ECF No. 120. Based on the evidence produced over the course of the motions hearing, I found that the requirements placed upon YRC "by C-TPAT did not constitute mandated searching, " and therefore that its participation in C-TPAT did not render YRC a government agent under the reasoning of Skinner. See May 15, 2014 Tr. 47:16-21, ECF No. 120. And although I found that Tommy "Arrowood's credibility was significantly challenged, " id. at 40:7-8, and that, subsequent to the search that led to these charges, he had accepted money to act as an informant for the Pennsylvania State Police, id. at 40:13-18, I was persuaded by the evidence that he was not acting on behalf of the government at the time that he performed the search, id. at 40:1-19. I also found that the bill of lading signed by the sender of the pallets granted consent for YRC to search their contents, so that "the carrier has a right to inspect cargo for the purposes of determining whether or not there is something suspicious or illegal in it" in any event. Id. at 43:4-25.
Over a month after my ruling, on June 20, 2014, Harris filed the instant Motion to Reopen the Record and the Hearing for the Purpose of Considering Additional Material Evidence and to Reconsider the Court's Prior Decision on the Motion to Suppress Evidence ("Def.'s Mot. to Reopen"), ECF No. 122. The Government filed its Response ("Gov't's Reopen Opp'n"), ECF No. 132, on August 5, 2014, and Harris Replied ("Def.'s Reopen Reply"), ECF No. 133, on August 19, 2014. The motion now is ripe and is before me. Having reviewed the filings, and particularly in light of the fact that six days of hearings already have taken place on this issue, I find that a hearing is not required. Loc. R. 105.6, 207.
Harris seeks to reopen the suppression hearing in order to present "New Evidence, Which is Not Publicly Available, [and which] Became Relevant Based on the Court's Decision" in the suppression hearing. Def.'s Mot. to Reconsider 9. At the outset, whether to reopen a suppression hearing is a matter of discretion for the trial court. See United States v. Dickerson, 166 F.3d 667, 678 (4th Cir. 1999), rev'd on other grounds, 530 U.S. 428 (2000). In exercising that discretion, the Fourth Circuit has noted
that the district court has a strong interest in controlling its docket and avoiding piecemeal litigation. Thus, when the evidence forming the basis for a party's motion for reconsideration was in the movant's possession at the time of the initial hearing, ... the movant must provide a legitimate reason for failing to introduce that evidence prior to the district court's ruling on the motion to suppress before we will determine that a district court abused its discretion in refusing to reconsider its suppression ruling.
Id. at 679. "Then the timeliness of the motion, the character of the testimony, the effect of granting the motion, and whether the opposing party will be prejudiced by reopening the hearing should be considered." United States v. White, 455 F.Appx. 647, 541 (6th Cir. 2012). The movant also must show that the evidence sought to be introduced is material-that is, that there is a reasonable probability that it would have changed the disposition of the motion to suppress. United States v. McCoy, 348 F.Appx. 900, 902 (4th Cir. 2009). The standard for reopening a suppression hearing is more permissive than that to reconsider a civil motion under Fed.R.Civ.P. 59(e), and the mere fact "that evidence was available to the movant prior to the suppression hearing does not, as a matter of law, defeat a motion for reconsideration in a criminal case." Dickerson, 166 F.3d at 679 (citing United States v. Regilio, 669 F.2d 1169, 1177 (7th Cir. 1981)). Other courts have held that "courts should be extremely reluctant to grant reopenings." United States v. Kithcart, 218 F.3d 213, 219-20 (3d Cir. 2000) (quoting United States v. Blankenship, 775 F.2d 735, 740 (6th Cir. 1985)).
Harris's primary justification for reopening the suppression hearing is to allow him to introduce evidence of an undated PowerPoint presentation titled "Supply Chain Security in a Post 9/11 Environment, " ("Supply Chain PowerPoint"), Def.'s Mot. to Reopen Ex. C, ECF No. 122-3. This presentation contains over fifty slides addressing "Air Container Search Procedures, " describing where contraband may be secreted within common shipping containers and how to detect it. See generally id. According to Harris, this presentation establishes that "C-TPAT not only educated ...