The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Before the Court are a motion to reconsider and a motion to dismiss
the indictment filed by Defendant, Piotr Misiolek, and a motion to
reconsider filed by the Government. The motions to reconsider relate to
the Court's ruling dated January 22, 2004; whereby, the Court granted
Defendant's Motion to Quash Arrest and granted in part and denied in part
Defendant's Motion to Suppress Evidence.
The factual background of this case is fully detailed in the Court's
Memorandum Opinion and Order dated January 22, 2004. Therefore, the Court
will not restate the facts.
Misiolek seeks reconsideration of the Court's finding that certain
items that were rediscovered in a subsequent legal search were not
suppressed pursuant to the independent source doctrine.
Motions for reconsideration serve a limited function of correcting
clear errors of law or fact or to present newly discovered evidence which
could not have been adduced during the pendency of the underlying
motion. See United States v. Dombrowski, 1994 WL 577259 (N.D. Ill. Oct.
18, 1994) (Dombrowski). Although the Rules of Criminal Procedure make no
provisions for a motion to reconsider, the propriety of such motions in a
criminal case has been established. See Dombrowski, 1994 WL 577259 at *3.
The Court found that the items that were rediscovered in a subsequent
legal search were not suppressed pursuant to the independent source
doctrine. The Court found that the Government met its burden of
establishing the two-part test used to determine whether the evidence was
obtained by independent lawful means. See United States v. May,
214 F.3d 900, 906 (7th Cir. 2000). Misiolek presents no evidence that
there was a clear error of law or facts and presents no newly discovered
evidence. Accordingly, Misiolek's motion to reconsider is denied.
The Government seeks reconsideration of the Court's ruling that the
ecstacy pills recovered from Misiolek's residence are suppressed and may
not be introduced as evidence.
In its previous Memorandum Opinion and Order, the Court suppressed the
pills after finding that the pills were seized from Misiolek's residence
following Misiolek's illegal arrest. At the time of the previous
motions, the Government conceded that given the timing of the warrantless
entry, the timing of the Miranda waiver, and the executed consent to
search, the post-arrest statements made by the Defendant and the pills
recovered during the consent search must be suppressed if the warrantless
arrest was found to be unlawful. Now, the Government seeks to have the
Court reconsider its previous Order, arguing that the pills recovered
from the residence should not be suppressed pursuant to the inevitable
discovery doctrine. The Government concedes that it previously failed to
present this argument.
The Government's new argument does not constitute a clear error of law
or facts, and it fails to present newly discovered evidence. Accordingly,
the Government's motion to reconsider is denied. See Granite State
Ins. Co. v. Degerlia, 925 F.2d 189, 192 n. 7 (7th Cir. 1991) (party
cannot raise new legal theory in motion to reconsider). Misiolek also seeks the dismissal of the indictment against him based
on the Court's finding that Misiolek's probable cause hearing that did
not occur until 5 days after his arrest and 4 days after the second
complaint constituted a violation of the standards set forth in Riverside
v. McLaughlin, 500 U.S. 44 (1991). While the Court found the delay in
bringing Misiolek before a magistrate to determine probable cause
violated the rule articulated m McLaughlin, the Court denied suppressing
evidence for this violation because none of the evidence that Misiolek
sought to suppress was obtained pursuant to the McLaughlin violation.
Now, Misiolek seeks to have the indictment against him dismissed as a
sanction for the McLaughlin rule violation. Misiolek does not identify
any prejudice that arose from the McLaughlin rule violation, and this
Court previously found that suppression of evidence was not an
appropriate sanction because none of the evidence that Misiolek sought to
suppress was obtained pursuant to the McLaughlin rule violation.
Accordingly, dismissal of the indictment is not the appropriate remedy
for the McLaughlin rule violation. See United States v. Fullerton,
187 F.3d 587, 590-92 (6th Cir. 1999) (finding suppression of evidence was
not the proper remedy for the McLaughlin rule violation instead a
Bivens claim was the possible remedy for a McLaughlin rule violation);
see also, Gerstein v. Pugh, 420 U.S. 103, 119 (1975) (a conviction will
not be vacated on the ground that the defendant was detained pending
trial without a determination of probable cause).
For the foregoing reasons, Misiolek's Motion to Reconsider and
Motion to Dismiss the Indictment are denied. The Government's Motion to
Reconsider is also denied.
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