UNITED STATES DISTRICT COURT
FOR THF. DISTRICT OF COLUMBIA

UNITED STATES OF Al\/IERICA.
v. Crim. Action No. 1 l-0275 (ABJ)
JARED CARDOZA,

Defendant.

\/\/\/\./\./\/\_/\/\/

MEMORANl)Ul\/I OPINI()N AND ORDER

Defendant Jared Cardoza has filed a motion entitled: l\/lotion to Reopen the Suppression
Hearing and for Reconsideration ofthe Court`s Terry Stop Ruling ("Def.’s l\/lot.").l [Dkt. # 52].
Defendant’s original motion to suppress was filed on Deceinber l6, 201 1, and it sought
suppression of all evidence seized from defcndant`s apartment pursuant to an August 31, 2011

search warrant, Def.’s Mot. to Suppress [Dkt. # 12]. The Court held a suppression hearing in

1 On August 27, 2()11, three l\/letropolitan Police Department officers observed a vehicle
stopped in a no parking zone in the Adams l\/lorgan neighborhood of Washington, D.C. Unz'led
Stales v. Cardoza, 713 F.3d 656, 657 (D.C. Cir. 2013). Defendant and Adam Ungar were talking
outside the vehicle, and one of`the police officers observed each extend a hand towards the other.
[a’. The police officers made a U-turn and parked behind the stopped vehicle. By that time,
defendant and Ungar were seated in the vehicle. with defendant in the front passenger seat and
Ungar in the back. ]d. Officer johnston approached the front passenger side and spoke to the
vehicle’s occupants through an open window. During the conversation, Officer johnston noticed
that defendant’s fist was clenched and observed him place something under his leg. He asked
defendant to step out of the vehicle, and when defendant complied, observed a marijuana
cigarette lying on the seat where defendant had been sitting. ld. The officers also recovered a
plastic bag of cocaine lying on the seat next to where Ungar had been sitting. Ia’. The police
officers arrested defendant and Ungar, and during a search incident to arrest, they found three
cell phones, $2,880 in cash, a knotted plastic bag of marijuana, and a sheet of paper listing major
cities and baseball teams on defendant`s person. ld. at 657~58. Based on information gathered
during his August 27. 201 1 arrest, the police obtained a warrant to search defendant’s home on
suspicion that defendant was involved in drug trafficking Ia'. at 658. Defendant sought to
suppress evidence obtained as a result of the police executing that search warrant, arguing that
the warrant contained several falsehoods and it was not supported by probable cause. Ia’.

this case on April ll, 2012, see Apr. 11, 2012 l\/linute Entry, and it granted the motion to

suppress for the reasons stated on the record in open court on l\/Iay 31, 2012. See l\/lay 31, 2012

l\/linute Entry. The following findings from that ruling are pertinent to this motion:

The Court determined that the initial interaction between the police officers and
defendant - when Officer johnston approached a parked car and spoke to its occupants
through an open window - was not a "stop" within the meaning of the Fourth
Amendment to the United States Constitution. Therefore, it did not require any level of
suspicion. l\/lay 31_ 2012 Status Conference Tr. ("S.C. Tr.") at 8 [Dkt. # 41]. The Court
rejected defendant’s arguments that were premised on the subjective intent of the
officers, noting that subject motivations are irrelevant under Fotu“th Amendment case
law. l ee id. at 8-1 1.

The Court held that Officer Johnston`s request that defendant step out of the car marked
the turning point in the encounter where defendant was now in "custody" within the
meaning ofthe Fourth Amendment. Ia’. at 13. But the custody was the product ofa valid
Terry stop prompted and justified by Officer Johnston"s reasonable suspicion that
defendant - who moments before had visibly placed something under his left leg - might
pose a safety risk to Officer Johnston. [a’. at 12-14.

'l`he Court concluded that the affidavit underlying the contested search warrant contained
several statements that Officer Hollan made with at least a reckless disregard for the
truth, and that he put forth in support ofa determination that there was probable cause to

search defendant`s apartment for evidence of drug trafficking.z Id. at 16-31. Once the

questionable statements were excluded froin the sworn affidavit_ the remaining facts were

not sufficient to support a finding of probable cause. Ia’. at 31~32. As a result. the Court

granted the motion to suppress. Ia’.

The government appealed the Court’s decision to grant the motion to suppress, and the
D.C. Circuit reversed the suppression order. Uni'led$tales v. Carcz'oza, 713 F.3d 656, 661 (D.C.
Cir. 2013). The Court of Appeals found that probable cause existed even after all of the
questionable statements had been excised from the af`fidavit, and therefore, the search of
defendant’s apartment was proper. Ia’. at 659-61.

ln response to his loss on appeal, defendant now asks this Court to reopen the suppression

hearing because he believes that the "Court of Appeals relied on factual assumptions or

2 Specifically, the Court concluded that the following statements were included in the
search warrant affidavit without regard for their accuracy:

v Paragraph 3 on page 2 stated that "[e]ach defendant extended a hand towards the other
and touched the other’s and with his ow'n" Warrant Aff., Ex. D to Def.’s l\/Iot. at 2 [Dkt.
# 52-4]. The Court found that, during the suppression hearing. defendant elicited
contradictory testimony from Officer Hollan that called into question the accuracy of that
statement. S.C. Tr. at 21~24. quoting Suppression Hr`g Tr., Ex. 1 to Def.’s Post-Hr’g
Mem. at 31. 47~48, 54, 60, 77-79. 81, 92-94, 104~05 [Dkt. # 30-1].

¢ Paragraph 5 on page 4 of the affidavit stated that the drugs recovered from defendant
were packaged in an uncommon form of packaging. Warrant Aff. at 5. But at the
suppression hearing, the ofHcer all but conceded that the packaging was completely
unremarkable. S.C. Tr. at 25, quoting Suppression Hr’g Tr. at 69.

v Paragraph 4 on page 4 of the affidavit provided that, after the police officers found
marijuana on defendant’s person, defendant told the officers that the significant amount
of money he possessed "was unrelated to drugs" and that "he took bets on baseball games
every day." Warrant Aff. at 4. At thc suppression hearing, Officer Hollan testified
repeatedly and consistently that defendant said he "placed" bets. S.C. Tr. at 26-29,
quoting Suppression Hr’g Tr. at 41. 74. 77. 79. 96-98, 104. 108. This also led the Court
to question paragraph 5 on page 5 of the affidavit, which included the officer’s
interpretation of the significance of` the piece of paper he found on defendant`s person
that listed major cities and baseball gaines. S.C. Tr. at 29-30, quoting Suppression Hr’g
Tr. at 75~77; Warrant Aff. at 5.

misunderstandings that this Court can and should correct before further proceedings are had in
this case." Def.`s l\/lot. at l. He also moves for this Court to reconsider its prior ruling regarding
the lawfulness of the initial encounter between the defendant and the police. Id. The Court will
not grant either request.
ANALYSIS
I. The Court will deny defendant’s motion to reopen the suppression hearing.

Defendant first requests that this Court reopen the suppression hearing to address what he
says were factual inisunderstandings that the Court of Appeals relied upon when it concluded
that the warrant was based on probable cause. Def.`s l\/lot. at 3-8. To support his motion,
defendant cites cases that stand for the proposition that a criminal defendant may move for
reconsideration of a trial court’s order, and that a motion to reopen a suppression hearing
functions as a motion to reconsider. Id. at 3.

But the Court cannot rely on that precedent to reopen the suppression hearing now. This
case does not present the usual situation where a court has denied a motion to suppress, and the
defendant seeks to present newly obtained evidence in an effort to alter the Court’s decision.
This Court granted the motion to suppress. and that decision was overturned on appeal. See
Car¢z’o:rz. 713 F.3d at 661. Defendant has not identified any authority that would give a district
court the power - absent an express remand by the Court of Appeals ~ to reopen and reconsider
the circuit court`s determination that the warrant was supported by probable cause. Defendant’s
concern that the D.C. Circuit’s decision rests on an inaccurate understanding of the record must
be lodged with that court.

And even ifthis Court could reconsider the appellate court`s decision that the motion to

suppress should be denied, defendant has not demonstrated that reconsideration would be

warranted in this case. Pre-trial motions for reconsideration are committed to the sound
discretion of the trial couit, and different circuits apply different tests to determine when
reconsideration is appropriate See Um`ted Stale.s‘ v. Watson, 391 F. Supp. 2d 89, 91-94 (D.D.C.
2005) (collecting cases). But all the various tests have at least one factor in common: a motion
for reconsideration requires the existence ofnew evidence that was not previously available. See
ia’.; see also Rozrse ix Um'/ed Slales, 359 F.2d 1014, 1015-16 (D.C. Cir. 1966`). As a result,
principles from the civil context. such as the understanding that a "motion to reconsider is not
simply an opportunity to reargue facts and theories upon which a court has already ruled," New
York v. United Slale.s‘, 880 F. Supp. 37, 38 (D.D.C. 1995). are equally applicable in the criminal
context.

Defendant argues that reconsideration is necessary to correct the following "factual
assumptions and misperceptions" that he claims led the Court of Appeals to find probable cause
to support the search warrant:

¢ According to defendant, the Court of Appeals placed too much emphasis on
Officer Hollan’s testimony that he saw defendant and Ungar interact on the street
because the officer admitted that "‘he never meant to state in his affidavit that he
`thought the meeting on the street was [a drug] exchange."’ Def.’s l\/lot. at 5,
quoting S.C. Tr. at 23.

¢ Officer Hollan`s affidavit specifies that 4.3 grains of cocaine were found in the
vehicle when in fact the actual weight of the cocaine without the packaging was
only 3 grams. Id. at 4, 6, citing Chemist Report, Ex. B to Def`.’s l\/lot. [Dl<t. # 52-
2]. Defendant notes that the government admitted at oral argument that 3 grams
of cocaine is not "a distribution-level quantity," and therefore he argues that the
cocaine found in the car was not sufficient to support a fair probability that
defendant was a drug trafficker. [d. at 5. Defendant also argues that Gfficer
Hollan`s knew that the weight of the cocaine was not 4.3 grams at the time the
search warrant affidavit was produced, and that this is therefore an additional
falsehood that must be excised from the probable cause determination. See id.,
citing Officer Hollan’s Ger.s'tein Aff., Ex. A to Def.`s Mot. [Dkt. # 52-1].

v The search warrant affidavit does not refer to defendant’s multiple cell phones as
"disposable," and there is nothing to support the conclusion that all the cell

phones belonged to defendant or that possessing more than one cell phone is
indicative of drug trafficking. Id. at 7.

¢ There is no support for the Court`s conclusion that defendant lied about his
address to the officers upon his arrest because the address was still on his driver`s

license and voter registration card. [d. at 7-8. Therefore, defendant argues, the

Court`s conclusion that defendant’s decision to lie about his address supports a

finding ofprobable cause is not warranted. ld.

But defendant does not make any effort to show that this information was not available to
him at the time of the original suppression liearing, at the time he filed his post-hearing
supplemental brief, or at the time of appeal. lndeed, several of these issues - in particular the
nature of the exchange on the street, the significance of the cell phones, and the matter of the
defendant’s address ~ were specifically raised in the original proceedings before this Court. See
Def.`s Post-Hr`g l\/lein. in Supp. of Def.’s l\/lot. to Suppress at 12-15 [Dkt. # 30] Suppression
Hr`g Tr. at 17-18, 21, 48, 93. l\/loreover, all the documents cited by defendant in support of his
motion were in existence at the time of the first hearing, and it appears that the issue of whether
three grams of cocaine is stifficient to justify an inference of drug trafficking was addressed in
oral argument in front of the Court of Appeals. Def.’s l\/lot. at 6.

This is fatal to defendant’s motion for reconsideration. As defendant acknowledges in his
motion, courts in this district have "denied motions to reopen suppression hearings
...coiieludiiig that all the evidence to be presented at the second hearing could have been
obtained and presented at the first." Id. at 3_ citing Um`led Srale.s' v. White, 514 F.Zd 205, 207-08

(D.C. Cir. 1975); Wc/lson, 391 F. Supp. 2d at 93. Defendant has not established that he did not or

could not raise these factual issues previously, and he may not now reargue points that he feels

he should have made. or made differently, before. Put simply, he is not entitled to a second bite
of the apple.3

Il. The Court will deny defendant’s motion for reconsideration of the Court’s
"Terrj) stop ruling."

Defendant devotes the bulk of his motion for reconsideration to advancing the legal
argument that his initial encounter with the police officers was not a lawful Terry stop. Def."s
l\/lot. at 9-22. But that argument is beside the point: this Court found that the initial encounter
was not a Terry stop at all. S.C. Tr. at 8. Defendant presents no new evidence or information in
support ofhis theory that this Court erred in concluding that the initial encounter was consensual
As a result, this argument in support of reconsideration must fail; reconsideration is not
appropriate where a defendant seeks to relitigate issues on which the Court previously ruled/1
.S'ee Ne\t' Yr)rk. 880 17. Supp. at 38.

Defendant also argues that this Court should reconsider the "Terry stop ruling" on the
grounds that he was not allotted a fair opportunity to address the constitutionality of defendant’s
initial encounter with the police officers because the governinent did not expressly raise the
"consensual encounter" theory until after the hearing, Def.’s l\/lot. at 8. He claims that
additional testimony - provided in the form of declarations attached to his motion - demonstrates

that the officers never asked any ofthe occupants of the car whether they would move the car out

3 ln footnote 1 ofdefendant’s motion, defendant refers to recordings of radio transmissions
that the government only recently made available to him and that were not available to him at the
suppression hearing or pending appeal. Def.`s l\/lot. at 1 n.l. But those recordings relate to an
issue that was already vetted at the suppression hearing - the reason the officers stopped their
cruiser - and the Court found that issue did not bear on the legality of the encounter with the
defendant’s already stopped vehicle.

4 The same rationale forecloses defendant’s argument that Officer johnston was not
warranted in requesting that defendant step out ofthe car.

of the no parking zone. and he revives his earlier arguments about the officers’ subjective intent
that night. Ia’. at 22-23.

The legality ofthe encounter between the police and the occupants ofthe vehicle was one
of the key issues defendant raised in his motion to suppress, so the Court is not persuaded that
defendant was somehow not on notice of the possibility that the government might argue that
Terry did not apply. This is a fundamental concept of Fourth Amendmentjurisprudence that was
obviously implicated here, and indeed, the Court specifically raised the issue at the conclusion of
the hearing before the parties filed their post-liearing submissions Suppression Hr’g Tr. at 163-
64. So, since defendant does not provide any reason for why this "new" evidence could not have
been presented in connection with the pre- and post-hearing briefing of his suppression motion,
the Court could deny his motion for reconsideration on that ground alone.

But even more significant is that none of defendant’s arguments on reconsideration
demonstrate that the Court erred in concluding that defendant`s initial interaction with Officer
johnston was a consensual encounter that did not require any specific level of suspicion.
Whether Officer johnston asked the driver if she planned to move the car is irrelevant to the
Court’s constitutional analysis, which turned on the fact that the car was already stopped when

the police spoke to the oecupants.

CONCLUSlON
For the reasons stated above, it is ORDERED that defendant Jared Cardoza’s l\/lotion to

Reopen the Suppression Hearing and for Reconsideration ofthe Court’s Terr_v Stop Ruling [Dkt.

# 52] is DENIED.

%a/q Bgjaa.,__l__
U

Al\/IY BERl\/IAN jACKSON
Unitcd States District judge

DA'I`E: February 18, 2014

