CA7: Permitting gov’t to reopen suppression issue is discretionary

Following other circuits, the Seventh Circuit holds that permitting the government to reopen a suppression hearing is discretionary. United States v. Ozuna, 561 F.3d 728 (7th Cir. 2009):

This court has generally given wide latitude to district courts to reopen suppression hearings for consideration of newly obtained evidence. See, e.g., United States v. Scott, 19 F.3d 1238, 1243 (7th Cir. 1994); United States v. Duran, 957 F.2d 499, 505-06 (7th Cir. 1992). Ozuna claims that this same latitude is not warranted where the evidence was available at the time of the previous hearing. In fact, he argues that the government should never be allowed to supplement a suppression hearing unless the evidence is newly acquired. He asserts that because the government could have subjected the document to handwriting analysis prior to the first hearing, it should not have been allowed to present this evidence at the second hearing. We find this argument unpersuasive.

As we have previously recognized, society has a strong interest in admitting all relevant evidence. United States v. Regilio, 669 F.2d 1169, 1177 (7th Cir. 1981). Thus, a defendant is entitled to suppression only in cases of constitutional violations, and the district court remains free throughout the trial to reconsider its previous orders suppressing evidence. Id. Because of society’s interest, we have never required the government to justify a request for reconsideration of a prior ruling. See id.; see also United States v. Bayless, 201 F.3d 116, 131 (2d Cir. 2000) (opining that the Seventh Circuit has rejected “a rule requiring the government … to proffer a justification for its failure to present the relevant evidence at the original suppression hearing”). We now likewise decline to impose a justification requirement to reopen a suppression hearing. Instead, we hold that this decision lies within the sound discretion of the district court.

We are not the only circuit to reach this conclusion. See In re Terrorist Bombings of the U.S. Embassies in E. Afr., 552 F.3d 177, 196 (2d Cir. 2008); see also United States v. Rabb, 752 F.2d 1320, 1323 (9th Cir. 1984) (citing Reglio with approval and holding that “[a] criminal defendant acquires no personal right of redress in suppressed evidence”), abrogated on other grounds by Bourjaily v. United States, 483 U.S. 171, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987). For example, the Second Circuit has held that “on a motion to reopen a suppression hearing, there is no bright-line rule that necessarily and invariably requires the government to provide a reasonable justification for its failure to offer relevant evidence at an earlier suppression proceeding.” In re Terrorist Bombings, 552 F.3d at 196. Because of the policy favoring introduction of lawfully obtained evidence, the Second Circuit stated that “‘vague notions of unfairness … ought not [to] control.'” Id. (second alteration in original) (quoting Bayless, 201 F.3d at 132). Instead, the court noted that the government’s justification for the delay was merely one factor to consider, leaving the ultimate determination to the discretion of the district court. Id. at 196-97.

Defendant’s plea agreement gave him permission to appeal evidence obtained from the execution of the search warrants, but not the pro se motions that he filed challenging the search, so his appeal on those grounds is dismissed. United States v. Kingcade, 562 F.3d 794 (7th Cir. 2009).*

In a forfeiture case, the search is challenged by a motion to suppress, not a motion to dismiss. Here, there was RS and PC, but claimant lacked standing. United States v. $572,204 in United States Currency, 606 F. Supp. 2d 153 (D. Mass. 2009).