                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA
__________________________
                           )
UNITED STATES OF AMERICA, )
                           )
     v.                    )
                           )       Criminal Action No. 10-274 (RWR)
ERIC HEMINGWAY,            )
                           )
     Defendant.            )
__________________________ )

                        MEMORANDUM ORDER

     The government moves for reconsideration of the order

suppressing the physical evidence seized in this case.    The court

had found that the police began a warrantless search of the

defendant’s car in violation of the Fourth Amendment, and that

the arrest of the defendant and seizure of the physical evidence

were fruits of the illegal search.    The government argues, as it

did at the motions hearing, that probable cause to arrest the

defendant for possession of an open container of alcohol (“POCA”)

did exist when the search began.

     The Federal Rules of Criminal Procedure do not provide for

motions to reconsider interlocutory orders in criminal cases.

Some courts nevertheless have entertained such motions, United

States v. McCallum, 885 F. Supp. 2d 105, 115 (D.D.C. 2012), and

applied the “as justice requires” standard used in civil cases

under Federal Rule of Civil Procedure 54(b) to assess motions to

reconsider interlocutory orders, see, e.g., United States v.

Sunia, 643 F. Supp. 2d 51, 60-61 (D.D.C. 2009).    The government
                                -2-

does not address the standard to apply, and the defendant urges

use of the “as justice requires” standard.   Def.’s Opp’n at 4.

“[W]here litigants have once battled for the court's decision,

they should [not] be . . . permitted[ ] to battle for it

again[,]” Arias v. DynCorp, 856 F. Supp. 2d 46, 52 (D.D.C. 2012)

(internal quotation marks and citation omitted), and a court may

deny a motion for reconsideration when it raises “‘arguments for

reconsideration the court ha[s] . . . already rejected on the

merits[,]’” McLaughlin v. Holder, 864 F. Supp. 2d 134, 141

(D.D.C. 2012) (quoting Capitol Sprinkler Inspection, Inc. v.

Guest Servs., Inc., 630 F.3d 217, 227 (D.C. Cir. 2011)).

Nevertheless, the government’s motion will be entertained, and

the “as justice requires” standard will be applied.

     Justice may require reconsideration where a court “‘patently

misunderstood the parties, made a decision beyond the adversarial

issues presented, [or] made an error in failing to consider

controlling decisions or data, or [where] a controlling or

significant change in the law has occurred.’”   Arias, 856 F.

Supp. 2d at 52 (quoting Negley v. FBI, 825 F. Supp. 2d 58, 60

(D.D.C. 2011)).   The burden is on the moving party to show that

reconsideration is appropriate and that harm or injustice would

result if reconsideration were denied.   Husayn v. Gates, 588 F.

Supp. 2d 7, 10 (D.D.C. 2008).   Here, the government does not

allege that the court misunderstood the parties’ arguments or
                                 -3-

considered an issue not presented by the parties, or that there

was an intervening change in controlling law.   At best, the

government appears to be making a second attempt to cite relevant

law and facts in support of an argument that has already been

rejected on the merits.

     The government relies principally upon three POCA cases.

One is Perkins v. United States, 936 A.2d 303 (D.C. 2007),

although Perkins does not compel a different result.     The issue

in Perkins was to whom the police could attribute possession of

contraband.   The issue in this case is whether the police had

probable cause to believe at all that the can seen was

contraband.   The Perkins opinion reflected no challenge to

whether the police knew or reasonably believed that there was

alcohol in the open container, or otherwise had probable cause to

believe that an open container violation had been committed.     The

only question in Perkins was whether the police could arrest the

driver or the passenger or both for the known violation.

     Perkins discussed as a given that the police knew there was

alcohol in the open container.   There was no discussion of the

factual basis for the police knowing it, or the Fourth Amendment

basis for police retrieving the container or making an arrest.

Perkins could provide support here if what was in open view was a

gun, or marijuana, or other contraband easily identifiable on

sight.   An open container in a car is not contraband unless it
                                  -4-

contains alcohol.    Here, the officer could not see in the

container, he did not testify that the driver or passenger said

that it contained alcohol, and his testimony about smelling

alcohol before the arrest was discredited.    Suspicion, even as

Perkins acknowledges, id. at 306, is not enough to establish

probable cause.

        Moreover, nothing about the totality of the circumstances in

this case elevates the mere suspicion present here to something

more.    The government urges that the facts here are more

compelling than those in United States v. Washington, 670 F.3d

1321 (D.C. Cir. 2012), which found probable cause for a

motorist’s POCA arrest where police found a puddle of liquid near

his floorboard and the container nearby was a clear plastic cup,

not even a beer can as was present here.    The fact that the can

was a beer can has significance only if it has beer in it -- an

empty can presents no violation whatsoever -- or there is ample

reason to believe there is beer in it.    Its placement in the

console’s cup holder may show something about who is in

possession but shows nothing about whether it likely has

contents, much less alcoholic contents.    The defendant appeared

nervous, although lights and sirens at three o’clock in the

morning could make a saint nervous without shedding any light at

all on whether there was alcohol in the can.    The length of the

police interaction with the defendant and the condition of the
                                 -5-

can did nothing to overcome the fact that the officer could not

see if any alcohol was in the can.     Nor did any mere suspicion by

the officer that the defendant or his passenger had been drinking

from the can in the car earlier give the officer authority to

make a warrantless arrest for a misdemeanor that was not

committed in his presence.    See D.C. Code § 25-1001(a), (d)

(stating POCA is a misdemeanor); D.C. Code § 23-581(a)(1)(A), (B)

(permitting warrantless arrest for misdemeanor only if committed

in the officer’s presence).

     The government also cites United States v. Bean, 17 A.3d 635

(D.C. 2011), although Bean gets us no farther.     There, the

officers saw in the vehicle not only a broken seal on a cognac

bottle, but saw that the cognac bottle was one-fourth full.     They

knew -- they did not just suspect -- that the cognac bottle was

not an empty container, and probable cause existed that an open

container violation was being committed.    Bean likewise had no

discussion of the Fourth Amendment basis for the police

retrieving the bottle.

     The government has not carried its burden of demonstrating

that reconsideration is necessary to avoid harm or injustice, or

is otherwise warranted.   Its motion, then, will be denied.

Accordingly, it is hereby
                                -6-

     ORDERED that the government’s motion [32] to reconsider be,

and hereby is, DENIED.1   It is further

     ORDERED that the government file by April 3, 2013 a status

report reflecting whether it will pursue an interlocutory appeal

or whether it requests a further scheduling conference.    Any

request for a further scheduling conference must identify three

dates agreeable to both the government and the defense.    It is

further

     ORDERED that the time under the Speedy Trial Act be, and

hereby is, EXCLUDED from the entry of this Order through

April 10, 2013 under 18 U.S.C. § 3161(h)(7)(A).   The court finds

it in the interests of justice to continue this matter and to

exclude the time, and that those interests outweigh the interests

of the parties and the public in a speedier trial.   The purpose

of the continuance and time exclusion is to permit the

government, in the exercise of due diligence, to have any

decision about pursuing an interlocutory appeal duly considered

and reviewed by the appropriate officials in the chain of

authority and reported to this court for further scheduling

purposes.



     1
          Regarding the government’s request for clarification,
the government correctly notes that the court discredited Officer
Gawrilow’s testimony that he detected the smell of alcohol as he
stood outside the car speaking with the defendant through the
driver’s window, but the court did not discredit the entirety of
the officer’s testimony.
                          -7-

SIGNED this 13th day of March, 2013.


                                /s/
                        RICHARD W. ROBERTS
                        United States District Judge
