Reopening argument to assert a new ground is within the discretion of the trial court. While this rule is almost always asserted by the defense, here it is raised by the government, and the court disapproves of the government asserting grounds to sustain a search without investigation or research and then having to come up with a new argument to salvage the search after the proof is in. United States v. Gourley, 2006 U.S. Dist. LEXIS 63787 (E.D. Wash. September 7, 2006):<\/p>\n
Although the waiver provision has regularly been applied to criminal defendants, the actual language of Rule 12(e) does not limit its application: “A party waives any Rule 12(b)(3) defense, objection, or request not raised ….” Fed. R. Crim. P. 12(e) (emphasis added). Just as a ground for suppression is waived when not timely raised, the Court finds a ground raised in opposition to a motion to suppress may be waived as well. Accordingly, the Court has no duty to consider the Government’s newly-minted theory of administrative seizure. See United States v. Bush,<\/em> 794 F. Supp. 40, 44 (D.P.R. 1992) (stating the district court “need not consider” an issue in support of a motion to suppress because it was raised for the first time at the suppression hearing and not raised in briefing).<\/p>\n
The Government has not shown good cause for the Court to consider its new argument. Instead, the Government has shown a distinct and serious lack of preparation and responsiveness to issues clearly raised. Notably, the Government, in filing its brief, made factual assertions and arguments apparently before conducting an investigation into the facts with the witnesses involved. The Government’s theory that no search ever took place was made without an adequate basis in law or fact. Such representations to the Court made without investigation violate the standard of practice expected from the United States Attorney’s office.<\/p>\n
The United States has the largest and most powerful legal office in the nation, if not the world. It has a vital responsibility to criminal defendants, the courts, and to the public to exercise its powers responsibly and justly. Consequently, this Court and the laws of this country hold the Government to a high standard when it brings its authority to bear on individuals such as the Defendant. The Court therefore will exercise its discretion not to permit the Government’s introduction of new grounds in response to Defendant’s motion to suppress.<\/p>\n
At the hearing, the Government abandoned its search-incident-to-arrest argument in opposition to Defendant’s motion to suppress. Consequently, the Court finds no warrant exception applies to the Government’s initial search of the vehicle and the evidence observed during this search was illegally obtained.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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