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United States v. Smith

United States District Court, E.D. North Carolina, Southern Division

October 18, 2017

UNITED STATES OF AMERICA
v.
ALEXIS P. SMITH, Defendant.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE.

         This matter is before the court on defendant's motion (DE 63) to reconsider the court's July 7, 2017, order denying defendant's motion to suppress. The motion has been fully briefed, and in this posture, the issues raised are ripe for review. For the following reasons, the court denies defendant's motion to reconsider.

         BACKGROUND

         On April 5, 2016, defendant was charged in a single-count indictment with possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924. Defendant's motion to suppress sought to suppress all evidence derived or flowing from the February 24, 2016, warrantless search of his Lumberton, North Carolina residence as a part of “Operation Zero Hour.”[1]

         Pursuant to 28 U.S.C. § 636(b)(1), United States Magistrate Robert T. Numbers, II, issued a memorandum and recommendation (“M&R”) after evidentiary hearing, wherein it was recommended that this court grant defendant's motion. (DE 54). On July 7, 2017, this court rejected the recommendation and denied the motion to suppress. Defendant filed the instant motion on August 31, 2017.

         DISCUSSION

         A. Standard of Review

         Although “the Federal Rules of Criminal Procedure do not specifically provide for motions for reconsideration, ” Nilson Van & Storage Co. v. Marsh, 755 F.2d 362, 364 (4th Cir. 1985), the Fourth Circuit has acknowledged that, in certain circumstances such as rehearing of orders in criminal proceedings, district courts have the inherent authority to decide motions for reconsideration, United States v. Goodwyn, 596 F.3d 233, 236 (4th Cir. 2010). In addressing such motions, courts, by analogy, are guided by the standards established by the civil rules, that “[t]he purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence . . . . Motions to reconsider are not proper where the motion merely asks the court to rethink what the Court had already thought through rightly or wrongly.” DIRECTV, INC. v. Hart, 366 F.Supp.2d 315, 317 (E.D. N.C. 2004) (interior citations omitted); see United States v. Williams, 674 F.2d 310, 313 (4th Cir. 1982) (“Where the motion [ to reconsider] is nothing more than a request that the district court change its mind, however, it is not authorized . . . .”).

         B. Analysis

         Defendant submits two cases recently decided as newly discovered North Carolina case law not available to defendant at the time of his initial motion to suppress, State v. Powell, 800 S.E.2d 745 ( N.C. App. May 16, 2017) and Clark v. United States, No. 7:16-CR-32-1H, 2017 WL 3085857 (E.D. N.C. July 20, 2017), arguing these new cases support a different conclusion than that which the court determined in denying defendant's motion to suppress. (DE 63 at 1-2).

         Previously the court recognized that defendant began a period of post-release supervision after serving time in prison for a probation violation in August 2015. As part of his supervision, defendant agreed to abide by numerous conditions, including the following condition: “submit at reasonable times to searches of my person, premises, or any vehicle under my control by my supervising officer for purposes reasonably related to my supervision.” DE 43 at 5 (emphasis added). The court held in its July 7, 2017, order that a search by a post-release supervising officer other than the assigned supervising officer, under the facts and circumstances presented, is reasonable under the Fourth Amendment in that defendant could not reasonably expect to be subject to warrantless searches by only one named supervising officer, as this would create an enhanced expectation of privacy and undermine the state's interest in administering its post-release supervision program.

         The cases offered by defendant do not alter the court's analysis. In Powell, the North Carolina Court of Appeals held that a warrantless search of a probationer's home was not “directly related” to the supervision of defendant's probation as required by N.C. Gen. Stat. § 15A-1343(b)(13) and thereby invalid. Powell, 800 S.E.2d at 754.[2] I n C l a r k, the court also addressed N.C. Gen. Stat. § 15A-1343(b)(13) in the context of another case related to Operation Zero Hour, holding that the warrentless search that occurred in that case was to further the mission of Operation Zero Hour, there was not evidence of conduct of the defendant upon which to conclude a violation of the probation agreement had occurred, and therefore, inter alia, the government failed to show the warrantless search of defendant's home was in compliance with N.C. Gen. Stat. § 15A-1343(b)(13). Clark, 2017 WL 3085857, at *2.

         Powell and Clark do not alter the court's analysis for two reasons. First, the court notes that defendant here was on post-release supervision, not probation, and therefore defendant was not subject to the North Carolina conditions of probation statute, N.C. Gen. Stat. § 15A-1343(b)(13) addressed in Powell and Clark. Compare North Carolina General Statutes, Chapter 15A, Article 82 (governing probation) with North Carolina General Statutes, Chapter 15A, Article 84a (governing post-release supervision); see also United States v. Irons, 226 F.Supp.3d 513, 518 (E.D. N.C. 2016) (distinguishing between North Carolina statutes governing post-release supervision and probation).

         Under N.C. Gen. Stat. § 15A-1368.4, persons under post-release supervision are subject to the following provisions applicable here: 1) “not commit another crime during the period the supervisee remains subject to revocation”; 2) “[s]ubmit at reasonable times to searches of the supervisee's person by a post-release supervision officer for purposes reasonably related to post-release supervision”; and 3) Post-Release Supervision and Parole Commission “may impose conditions on a supervisee it believes ...


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