United States District Court, E.D. North Carolina, Southern Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
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.
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.”
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.
Standard of Review
“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 . . . .”).
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).
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.
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. 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.
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).
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 ...