D.Nev.: Def doesn’t show factual basis for any exclusion for Rule 41 violation

Defendant’s motion to suppress for a Rule 41 violation is denied as untimely. Even on the merits, it shows no factual basis for exclusion. United States v. Williams, 2014 U.S. Dist. LEXIS 75567 (D. Nev. February 14, 2014):

Williams’ motion to suppress presents a second question: whether the warrant’s execution violated Federal Rule of Criminal Procedure 41(c)-(d). The Supreme Court has stated that the Federal Rules of Criminal Procedure do “not constitute a statutory expansion of the exclusionary rule.” United States v. Calandra, 414 U.S. 338, 348 n. 6 (1974);United States v. Johnson, 660 F.2d 749, 753 (9th Cir.1981) (noting that “[o]nly a ‘fundamental’ violation of Rule 41 requires automatic suppression, and a violation is ‘fundamental’ only where it, in effect, renders the search unconstitutional under traditional fourth amendment standards.”).

There are three circumstances under which evidence obtained in violation of Federal Rule of Criminal Procedure 41 requires suppression: (1) the violation rises to a “constitutional magnitude;” (2) the defendant was prejudiced, in the sense that the search would not have occurred or would not have been so abrasive if law enforcement had followed the Rule; or (3) officers acted in “intentional and deliberate disregard” of a provision in the Rule. United States v. Martinez-Garcia, 397 F.3d 1205, 1213 (9th Cir. 2005) cert. denied, 546 U.S. 901 (2005).

The court finds that Williams’ motion should be denied for two reasons. First, the motion is untimely. The operative case management order prescribes June 26, 2013 as the deadline “to file any and all pretrial motions.” (See May 17 Order (#78) at 4:16); see also FED. R. CRIM. P. 12(c) (“The court may … set a deadline for the parties to make pretrial motions”). Williams’ motion was filed on December 4, 2013 and need not be entertained. See Mammoth Recreations, Inc., 975 F.2d at 610.

Second, Williams’ motion is not supported by any admissible or credible evidence. Federal Rule of Criminal Procedure 47(d) provides that “[t]he moving party must serve any supporting affidavit with the motion.” This rule enables parties to establish facts not contained in the record. See FED. R. CRIM. P. 47, Advisory Committee Notes, 1944 Adoption. If facts are not properly established, they are inadmissible See id.; see also FED. R. EVID. 802 (codifying the rule against hearsay, which would bar many of the statements proffered here). Because neither Williams nor the Government’s motion contains any admissible or credible evidence regarding the facts of the search, the court cannot reach the merits of Williams’ argument.