The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Presently before the court is defendant's motion to suppress evidence seized from him, and statements allegedly made by him, during a traffic stop and subsequent search of his vehicle. (Dkt. No. 7, 19.) On October 18, 2010, the court held an evidentiary hearing regarding defendant's motion to suppress, and the following witnesses testified at the hearing: Officer Jeramiah Laudenslager, Officer Ken Marcus, and defendant.
For the reasons stated at the hearing and below, the undersigned will grant defendant's motion to suppress in part and deny it in part. The undersigned largely resolved the motion to suppress at the October 18th hearing and made several factual findings on the record at the close of that hearing. Accordingly, an extended discussion of the factual background of this case and the issues raised by the parties is not included here, and this order largely contains a summary of the courts rulings.
As discussed at the October 18th evidentiary hearing, the undersigned concludes that the government has waived its argument, and therefore may not argue, that Officer Laudenslager had probable cause to initiate his search of defendant's vehicle based on the "plain view" exception to the warrant requirement. Although somewhat redundant of comments made at the evidentiary hearing, the undersigned will provide some explanation of the troubling nature of the government's conduct that gave rise to this finding of waiver.
Pursuant to a stipulated briefing schedule approved by the court, defendant filed his motion to suppress on July 7, 2010. The government's counsel filed an opposition to defendant's motion on July 20, 2010. The government's counsel had the benefit of reviewing the DVD recording of the traffic stop in question and communicating with Officer Laudenslager prior to filing its opposition. Yet nowhere in the government's opposition brief does an argument based on plain view appear; the government primarily relied on a "collective knowledge" theory*fn1 to support the lawfulness of Officer Laudenslager's search of the vehicle, which resulted in the discovery of marijuana. The government did not submit an affidavit or probable cause statement of Officer Laudenslager, let alone one that would have alerted the defendant or court to any reliance on a plain view theory.
On August 4, 2010, the undersigned conducted a non-evidentiary hearing and expressed great concern regarding the government's assertion of a collective knowledge theory on the particular facts of this case. Anyone at the August 4th hearing would have readily ascertained that the government's opposition to the motion to suppress, at least with regard to the search of defendant's vehicle, was not well-taken. Although under no obligation to order an evidentiary hearing, the undersigned ordered such a hearing with particular interest in hearing how the government planned to support its collective knowledge argument. At that time, the government still had not made any mention of a forthcoming plain view theory.
On September 3, 2010, the undersigned conducted-or at least intended to conduct-the previously ordered evidentiary hearing. However, counsel for both parties represented that the government, on the morning of the evidentiary hearing, had just raised a new theory in support of the search of defendant's vehicle. The government birthed the plain view argument after Officer Laudenslager reviewed the DVD recording of the traffic stop on the morning of the evidentiary hearing. The government revealed its plain view theory to defense counsel approximately five minutes before the evidentiary hearing. The undersigned was deeply troubled that the government had either: (1) decided to try to save a case apparently headed for defeat by raising a brand new theory of probable cause on the morning of an evidentiary hearing; (2) intentionally withheld its plain view theory from defendant until the morning of the evidentiary hearing; or (3) the most likely, inadequately prepared its opposition to the motion to suppress, and now wanted the court to excuse its last-minute efforts to prepare for the evidentiary hearing. Although defendants counsel represented that defendant was prepared to proceed with the evidentiary hearing that morning, the undersigned reset the evidentiary hearing for October 18, 2010. Among other things, the undersigned ordered the government to produce a written statement of Officer Laudenslager addressing his role in the traffic stop and any of his prior statements. The undersigned also permitted defendant to file an amended motion to suppress, but cautioned the government that "all is not forgiven" with respect to the nascent plain view argument and ordered that defendant could challenge the government's ability to rely on such a belated plain view theory.
Defendant filed a supplemental brief in support of its motion to suppress and argued, in part, that the government should be precluded from relying on the plain view theory because the government had waived that theory under Federal Rule of Criminal Procedure 12(e).
The government filed a response to defendant's supplemental briefing.*fn2 As stated at the October 18th evidentiary hearing, the undersigned agrees with defendant's position. Although outside of this district, district courts have recognized the applicability of the waiver provision in Rule 12(e), which was previously numbered as Rule 12(f), against the government to effectively estop the government from belatedly raising new theories in opposition to a motion to suppress.*fn3 See United States v. Florack, 155 F.R.D. 49, 53-55 (W.D.N.Y. 1994) (concluding that waiver under then-numbered Rule 12(f) could be invoked to estop the government from making a new and belatedly raised argument, but finding that application of that waiver provision was not appropriate in the particular case); United States v. Reyes, No. 91-CR-56S, 1993 WL 8775, at *2 (W.D.N.Y. Jan 13, 1993) (unpublished) (precluding government from arguing a new and potentially meritorious theory in opposition to a motion to suppress when raised in a motion for reconsideration of the district court's order granting the motion to suppress), aff'd without opinion, 999 F.2d 536 (2d Cir. 1993); United States v. Ramos, 735 F. Supp. 75, 81 (W.D.N.Y. 1990) (same); United States v. Head, 737 F. Supp. 1287, 1288-89 (W.D.N.Y. 1990) (same); cf. United States v. Andrews, 764 F. Supp. 1252, 1254 (N.D. Ill. 1991) (denying government's belated motion to admit certain evidence of racketeering evidence prior to trial). Although the waiver provision in Rule 12(e) has most-often been used to estop the government when the government raised new theories in a motion for reconsideration of an order granting a motion to suppress, the undersigned finds that the peculiar procedural facts of this case present no material difference from those cases where the district courts found a waiver.*fn4 Accordingly, the undersigned finds that the government has waived any reliance on the plain view theory. Moreover, the government has demonstrated no "good cause" that would support granting relief from the waiver. See Fed. R. Crim. P. 12(e) ("For good cause, the court may grant relief from the waiver.").
However, as stated at the October 18th hearing, the undersigned concludes, in the alternative, that even if the government were permitted to rely on a plain view theory, the government has not met its burden to support such a justification. In the written statement ordered to be produced by the court, the government included a follow-on statement that Officer Laudenslager essentially had no recollection of the traffic stop in question. (Am. Suppl. Br. In Supp. of Mot. to Suppress, App. A at 2 ("Until review of the video Officer Laudenslager did not recall the events of December 26, 2009").) Moreover, Officer Laudenslager's written statement was uncertain and unconvincing with respect to his viewing of defendant's marijuana pipe in plain view. He stated:
I recall observing what appeared to be a marijuana pipe and retrieving it from the vehicle. I do not recall where the marijuana pipe was located in the passenger compartment. After watching the video I was standing outside the passenger door when I observed and retrieved the marijuana pipe. It appeared that I did not manipulate anything inside the passenger compartment, leaving me to believe the pipe was in plain view.
(Id.) Officer Laudenslager's testimony at the evidentiary hearing regarding his independent recollection of the search was equally circumspect and unsure. Even his testimony based on his review of the DVD recording was cautious and unconvincing with respect to the plain view argument. Accordingly, in the alternative, the undersigned ...