                                                                                 FILED
                                                                     United States Court of Appeals
                                         PUBLISH                             Tenth Circuit

                      UNITED STATES COURT OF APPEALS                        April 14, 2015

                                                                         Elisabeth A. Shumaker
                                       TENTH CIRCUIT                         Clerk of Court


 UNITED STATES OF AMERICA

               Plaintiff - Appellee,

 v.                                                          No. 13-3216
 DANA J. HUFF,

               Defendant - Appellant.



                     Appeal from the United States District Court
                              for the District of Kansas
                         (D.C. No. 2:11-CR-20111-KHV-01)


Submitted on the briefs*:

James L. Spies of the law office of James L. Spies, P.A., Kansas City, Kansas for
Defendant–Appellant.

Barry R. Grissom, United States Attorney, and Terra D. Morehead, Assistant United
States Attorney, District of Kansas, Kansas City, Kansas, for Plaintiff–Appellee.


Before McHUGH, McKAY, and BALDOCK, Circuit Judges.


McKAY, Circuit Judge.


      This case primarily concerns the limits to a district court’s discretion when ruling


      *
       This case was ordered to be submitted on the briefs on November 18, 2014.
on government motions for reconsideration. The district court initially ruled to suppress

evidence of firearms seized during the arrest of Appellant Dana J. Huff, but the court

agreed to reconsider the motion after the government presented a new legal basis for the

seizure. Upon reconsideration of the motion to suppress, the court found the seizure to be

proper. Mr. Huff argues that the court improperly reconsidered the motion to suppress

because the government provided no justification for its initial oversight and the law

enforcement officers lacked probable cause to arrest him.

       We hold that the district court may reconsider a motion to suppress without

requiring the government to justify why it initially failed to set forth that legal basis for

the seizure of evidence. We also hold that the officers had sufficient probable cause to

arrest Mr. Huff after seeing the firearms, one of which was being transported in violation

of a local ordinance. We therefore affirm the ruling of the district court.

                                      BACKGROUND

       In June 2011, two police officers on a routine patrol in Kansas City, Kansas

observed an Isuzu Rodeo stop for a red light at an intersection. The vehicle initially

stopped left of the center stripe and in one of the oncoming lanes of traffic before backing

up and moving rightward to a correct lane. The officers initiated a traffic stop because of

the violation.

       The two officers approached on either side of the vehicle. The passenger-side

officer, using a flashlight, spotted a handgun underneath the back of the driver’s seat as

he approached. The officer notified his partner that the individuals in the car—Mr. Huff

in the driver’s seat and another man in the passenger seat—were armed and dangerous.

                                              –2–
The officers instructed the men in the vehicle to place their hands on the dash.

         The passenger-side officer noticed Mr. Huff move his hands back and forth near

the gear shift in a manner suggesting Mr. Huff might try to drive away. The officer

opened the passenger door, leaned into the car, and removed the keys from the ignition.

While doing this, the officer noticed a second firearm—a rifle—wedged between the man

in the passenger seat and the vehicle’s center console. The officers directed Mr. Huff and

his passenger to exit the vehicle, handcuffed them, and put them in the back of their

patrol car.

         Mr. Huff was subsequently indicted on one count of being a felon in possession of

a firearm, based on both the handgun and the rifle. He was also indicted on one count of

possession of an unregistered, short-barreled rifle.

         At trial, Mr. Huff, acting pro se, sought to suppress evidence of the two firearms

the officers found in his vehicle. Mr. Huff argued the officers lacked reasonable

suspicion of criminal activity when searching his vehicle, and that they unlawfully

arrested him without a warrant and without probable cause to believe he had committed a

crime.

         After a suppression hearing, the court held the initial stop to be lawful based on

Mr. Huff’s traffic infraction. The court also held that the officer who leaned into the

vehicle to remove the keys from the ignition acted lawfully. However, the court granted

the motion to suppress evidence of both firearms because, at the time of the arrest the

officers had found no evidence of any legal violation. Specifically, the court found the

officers had not questioned the two individuals about the firearms before they were

                                              –3–
arrested, and the government produced no evidence that the officers knew then of Mr.

Huff’s past felony conviction or the rifle’s unregistered status. The government cited no

evidence of probable cause to initiate an arrest, and, so far as the court could determine,

the arrest took place merely for officer safety concerns and to secure the scene.

       Two days after the district court issued its decision, the government filed a motion

to reconsider the suppression of evidence of the two firearms. The government said it

had failed to specifically identify the ordinance Mr. Huff violated during argument on the

motion to suppress. The government’s motion for reconsideration stated that the pistol—

spotted in plain view in the vehicle by one of the officers—demonstrated that Mr. Huff

had violated Kansas City, Kansas Municipal Ordinance § 22-177(a)(5), which provides

that “[t]ransporting any pistol, revolver, or other firearm which is not unloaded and

encased in a container which completely enclosed the firearm” constitutes unlawful use

of a weapon.

       The court granted the government’s motion for reconsideration and, in light of the

newly presented ordinance, found that the officers had probable cause for the arrest. A

jury ultimately found Mr. Huff guilty of being a felon in possession of a firearm, based

on the rifle but not the pistol, and not guilty of being a felon in possession of an

unregistered short-barreled rifle. Mr. Huff then brought this appeal challenging the

district court’s decisions to grant the government’s motion for reconsideration and to

deny his motion to suppress evidence of the firearms.




                                             –4–
                                       DISCUSSION

         We first consider whether the district court properly granted the government’s

motion to reconsider its decision to suppress evidence of the two firearms. We review a

district court’s decision whether to reconsider a prior ruling for abuse of discretion.

United States v. Randall, 666 F.3d 1238, 1241 (10th Cir. 2011).

         We have held that a motion to reconsider may be granted when the court has

misapprehended the facts, a party’s position, or the law. Servants of The Paraclete v.

Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Specific situations where circumstances

may warrant reconsideration include “(1) an intervening change in the controlling law,

(2) new evidence previously unavailable, and (3) the need to correct clear error or prevent

manifest injustice.” Id. “A motion to reconsider is not a second chance for the losing

party to make its strongest case or to dress up arguments that previously failed.” Voelkel

v. Gen. Motors Corp., 846 F. Supp. 1482, 1483 (D. Kan. 1994). We have specifically

held that “[a] motion to reconsider should not be used to revisit issues already addressed

or advance arguments that could have been raised earlier.” United States v. Christy, 739

F.3d 534, 539 (10th Cir. 2014).

         Appellant stated correctly that the government had ample opportunity to bring the

ordinance requiring transported pistols be unloaded and completely encased to the

attention of the district court in its initial opposition to the motion to suppress evidence of

firearms in Mr. Huff’s vehicle. The government provided no valid excuse for failing to

do so.

         Nevertheless, the district court granted the government’s motion for

                                             –5–
reconsideration because in this case the government’s mistake related to an omission of a

legal argument, not the failure to present evidence on a particular issue. The court

therefore concluded there was no police misconduct to deter through suppression of

evidence which was legally obtained.

       Other circuits differ on how district courts should handle motions by the

government to reconsider suppression orders. When the government seeks

reconsideration of a suppression order based on a new legal argument or evidence, the

Eleventh and D.C. Circuits require the government to justify its failure to present this

legal argument or evidence in the earlier proceedings. See United States v. Villabona-

Garnica, 63 F.3d 1051, 1055 (11th Cir. 1995) (“By failing to raise an issue at a

suppression hearing without offering any justification therefor, the government waives its

right to assert it in subsequent proceedings.” (internal quotation marks and brackets

omitted) (quoting, in parenthetical, United States v. Thompson, 710 F.2d 1500, 1504

(11th Cir. 1983))); McRae v. United States, 420 F.2d 1283, 1288 (D.C. Cir. 1969)

(holding that the government was “obligated to advance stronger justification for

relitigating” a suppression issue where the issue raised was clear and a considered ruling

had been made).

       On the other hand, the Second, Fifth, Seventh, and Ninth Circuits hold that on a

motion to reopen a suppression hearing, no bright-line rule exists requiring such

justification. See, e.g., United States v. Ozuna, 561 F.3d 728, 734-35 (7th Cir. 2009); In

re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 177, 196-97 (2d Cir. 2008);

United States v. Rabb, 752 F.2d 1320, 1323 (9th Cir. 1984) (abrogated on other grounds,

                                            –6–
as recognized by United States v. Franco-Beltran, 229 Fed. Appx. 592 n.1 (9th Cir.

2007); United States v. Scott, 524 F.2d 465, 467 (5th Cir. 1975). Under the law in these

circuits,

              A defendant is entitled to have evidence suppressed only if it
              was obtained unconstitutionally. If matters appearing later
              indicated that no constitutional violation occurred, society’s
              interest in admitting all relevant evidence militates strongly in
              favor of permitting reconsideration. . . . [A] criminal
              defendant acquires no personal right of redress in suppressed
              evidence because the rationale for suppressing unlawfully
              obtained evidence is to deter official misconduct, not to
              compensate criminal defendants for the violation.

In re Terrorist Bombings, 552 F.3d at 197 (internal quotation marks and

citations omitted).

       The Supreme Court has consistently stated that the exclusionary rule exists

primarily to deter official misconduct. See, e.g., United States v. Leon, 468 U.S. 897, 898

(1984); United States v. Calandra, 414 U.S. 338, 347 (1974). In Herring v. United

States, 555 U.S. 135, 144 (2009), the Supreme Court further stated that “[t]o trigger the

exclusionary rule, police conduct must be sufficiently deliberate that exclusion can

meaningfully deter it, and sufficiently culpable that such deterrence is worth the price

paid by the justice system.”

       Under this reasoning, when suppressed evidence later turns out to have been

constitutionally obtained, application of the exclusionary rule provides no meaningful

deterrence. Here, police officers lawfully seized evidence, but the government’s

attorneys failed to inform the district court of the legal justification for that seizure before

the district court granted Mr. Huff’s motion to suppress. To categorically prohibit the

                                              –7–
district court from reconsidering that suppression of evidence under those circumstances

serves merely to punish the government for its attorneys’ oversight. However, the

exclusionary rule was not crafted to deter judicial or prosecutorial error or oversight, but

to deter illegal police searches and seizures.

       Application of the exclusionary rule in cases like this provides no meaningful

deterrence to police officers who committed no misconduct, while it exacts a high toll on

the justice system by potentially allowing guilty defendants to go free. We therefore

agree with the majority of our sister circuits who have considered this question and

concluded that the district court in such a case should be permitted—as one of the many

considerations when ruling on a motion for reconsideration—to determine whether its

earlier suppression of evidence should stand in light of the newly raised legal basis for

the initial seizure. The district court may prefer, even require, the government to explain

why it failed to introduce an argument earlier, but that decision should rest with the

district court. We therefore hold that the district court did not err in exercising its

discretion in this case to grant the motion for reconsideration.

       Based on its reconsideration of this matter—reconsideration we deem proper—the

district court denied the motion to suppress evidence of the firearms seized from Mr.

Huff’s vehicle. We now turn to Appellant’s arguments that the court erred in denying his

motion to suppress this evidence and that the officers arrested him without probable

cause. We review the district court’s denial of a motion to suppress under the totality of

the circumstances, viewing the evidence in the light most favorable to the government.

United States v. Kimoana, 383 F.3d 1215, 1220 (10th Cir. 2004). We accept the district

                                             –8–
court’s factual findings unless clearly erroneous but review the ultimate question of

reasonableness under the Fourth Amendment de novo. Id.

       Appellant argues that the officer who reached into the vehicle and removed the

keys from the ignition illegally searched his vehicle because the officer failed first to ask

Mr. Huff to remove the keys himself. Appellant also argues that the ultimate reason

given for his arrest—after the district court granted the government’s motion for

reconsideration—was merely pretext. Specifically, he states that although the arresting

officer who testified at the hearing on the motion for reconsideration said he was aware

of Kansas City Municipal Ordinance § 22-177(a)(5), he never testified that he based his

decisions to reach into the car or to arrest Mr. Huff on that ordinance. Therefore, Mr.

Huff argues, it seems unlikely the officer truly based either action on Mr. Huff’s violation

of the ordinance, and the search and subsequent arrest were without probable cause.

       The Supreme Court has foreclosed these arguments, since it has held that an

officer’s subjective reason for making an arrest may be different from the criminal

offense which the known facts provide probable cause for, and that “an arresting officer's

state of mind (except for the facts that he knows) is irrelevant to the existence of probable

cause.” Devenpeck v. Alford, 543 U.S. 146, 153 (2004). “[T]he Fourth Amendment’s

concern with ‘reasonableness’ allows certain actions to be taken in certain circumstances,

whatever the subjective intent,” Whren v. United States, 517 U.S. 806, 814 (1996),

because “evenhanded law enforcement is best achieved by the application of objective

standards of conduct, rather than standards that depend upon the subjective state of mind

of the officer.” Horton v. California, 496 U.S. 128, 138 (1990).

                                             –9–
       For probable cause to exist, an officer need only have the specific factual

knowledge that justifies a search or arrest, regardless of the officer’s actual motivation.

See Whren, 517 U.S at 812-13. Police officers may search vehicles without a warrant if

they have probable cause to believe the vehicle contains evidence of a crime. United

States v. Nicholson, 17 F.3d 1294, 1297 (10th Cir. 1994). In this case, the officers were

aware of a gun in the car which, regardless of whether they realized it, was being

transported in violation of Kansas City Municipal Ordinance § 22-177(a)(5). Upon

seeing the uncased weapon, the officers had the requisite probable cause both to conduct

a search of the vehicle and to initiate an arrest based upon this weapons violation.

Whether or not the officers actually had the ordinance in mind when conducting the

search or making the arrest makes no difference in this analysis.

       We therefore hold the initial search and the subsequent arrest to be lawful and

AFFIRM the ruling of the district court.




                                            –10–
