MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge.
On May 28, 2013, the Court made a detailed oral ruling, covering some sixteen pages of transcript, granting defendant Santiago Cisneros-Gonzales's motion to suppress evidence. The government has filed a motion to reconsider. The Court denies the motion for the reasons stated below.
The motion to suppress and the hearing
In his motion to suppress, Cisneros-Gonzales alleged, among other things, that there was no valid basis for the search of the truck he was driving and that any consent to search "was a result of mere acquiescence to police authority." Mot. to Suppress ¶ 8. The government responded that the search followed a legal stop for a safety inspection of the truck; Cisneros-Gonzales consented to the search; and the search was supported by a positive alert by a drug detection dog. In reply, Cisneros-Gonzales challenged these contentions, including the contention that the search was justified by his consent. He submitted an affidavit along with his reply. In that affidavit, Cisneros-Gonzales stated that after being ordered out of his truck, he "remained in [a] police vehicle while multiple searches of his tractor/trailer were conducted." Reply, Ex. B ¶ 6. He also stated that while in the police vehicle, he was presented with a consent-to-search form that he did not understand and that he signed because he thought he had no choice. He stated that he did not voluntarily agree to a search of his truck. Id. ¶¶ 7-11.
The Court ordered an evidentiary hearing on the motion. Prior to the hearing, the government advised that it would not rely on the alleged positive alert by the dog as a basis for the search. This left only consent as a basis to justify the search. The government was certainly aware that it had to prove by a preponderance of the evidence that Cisneros-Gonzales had voluntarily consented to the search.
During the government's case in chief at the evidentiary hearing, it elicited testimony that Cisneros-Gonzales had voluntarily consented to the search, both orally and in writing, before the search took place. Cisneros-Gonzales then testified in the defense case. During his testimony, he stated that the search had already begun before he signed the consent form.
The government had a full and fair opportunity at the hearing to question Cisneros-Gonzales regarding the timing of the search and to present contrary evidence - and, in fact, it did so. During closing arguments, defense counsel argued (among other things) that the consent came after the search had begun, amounted to acquiescence to authority, and was involuntary. The government had a full and fair opportunity to respond to these arguments after defense counsel made them. Also during closing arguments, the Court asked counsel questions regarding the timing of the consent, which made it even clearer (even if it had not already been clear) that this was at issue and was a point that the Court was considering. Again, the government had a full and fair opportunity to address these issues at the time of closing arguments on the motion to suppress. In addition, approximately six weeks passed between the conclusion of arguments and the Court's ruling. Despite knowing that the timing of the consent was an issue that the Court was considering, the government did not come back and ask to supplement the evidence in any way prior to the Court's ruling.
In its oral ruling, the Court found that defendant had not consented to the search until after it had already begun and that the consent was a mere submission to authority and did not justify the search. See May 28, 2013 Tr. at 15-16. The Court granted the motion to suppress. The government has moved to reconsider.
Timeliness of the government's arguments in reconsideration
The government now offers what it contends is significant additional evidence that supports its argument that the search was justified by voluntary consent given before the search commenced. The request is untimely, in the sense that the evidence in question was available long before the Court made its oral ruling. As the Court has discussed, there was plenty that put the government on notice before, during, and at the hearing that the timing and voluntariness of the consent was at issue. The government addressed the timing issue during the testimony that it elicited even before Cisneros-Gonzalez testified at the hearing. And it had an opportunity to do so again, by rebuttal, after he testified on that day. The government also could have done so several days later, when the parties came back for closing arguments on the motion to suppress. Finally, after hearing the Court ask a number of pointed questions directed to the timing issue during arguments on April 16, the government could have sought to reopen the hearing at any time between then and the Court's ruling six weeks later, on May 28, 2013. Given these circumstances, it is inappropriate for the government to have sat back to wait for a ruling and then offer "new" evidence only after an adverse ruling. The government has offered no valid justification for its late submission of this evidence.
Merits of the government's motion
Even if the government's motion to reconsider were procedurally appropriate, the Court would deny it, for the reasons stated below.
The government's first argument is that additional records that it obtained after the hearing support its contention that the search of the truck came after Cisneros-Gonzales had consented, not before. According to the government, these records reflect that state trooper Martinez, the officer who accompanied the drug-sniffing dog, arrived on the scene at 12:16 p.m. The records the government has submitted also reflect that another state trooper, Matt Wierzbinski, arrived at the scene at 12:17 p.m. Finally, the records reflect that state trooper Chris Wilkes, who performed the initial stop of the truck, reported to dispatch at 12:27 p.m. that the truck "has 3 boxes of meth in it, out here with narcint, going to be awhile, got guy to cooperate." Govt. Mot., Ex. D at 1. The government then argues the following:
If, as this Court concluded based on the evidence presented at the hearing, by 12:20 p.m. the officers had already searched the truck and then convinced the defendant to sign a consent form, there appears to be no reason why they would wait another seven minutes to notify dispatch of such a large seizure. Rather, it is likely that the handwritten [12:20 p.m.] time on the consent-to-search form is off by approximately two minutes, but that the sequence of events unfolded as the officers testified. After all, the officers recorded these times and events in their report shortly after they occurred. Unlike the defendant, the officers have been consistent and credible. Moreover, the officers had no motive to fabricate consent, as they had a positive dog alert, which gave them probable cause to search the truck, and the defendant was cooperating. Finally, it does not seem feasible that the ...