UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 14-cr-012-01-JD
Opinion No. 2015 DNH 101
Peter Apicelli
O R D E R
Peter Apicelli moves for reconsideration of the order
denying his motion to suppress. In support, he argues that the
court should have held a hearing on his motion, that probable
cause was lacking to support the warrant for the search of his
house, and that the identification of him in surveillance video
footage should be excluded as unreliable. The government
objects to the motion.
Standard of Review
In criminal cases, neither a statute nor a rule provides
for reconsideration of a court order. United States v. Ortiz,
741 F.3d 288, 292 n.2 (1st Cir. 2014). Nevertheless, based on
common law, the court has inherent authority to reconsider its
interlocutory orders. United States v. Gonzalez-Rodriguez,
777
F.3d 37, 41 n.7 (1st Cir. 2015); United States v. LoRusso,
695
F.2d 45, 53 (2d Cir. 1985). In exercising that inherent
authority, the court may apply the standard for reconsideration
used in civil cases. See United States v. Cintron,
724 F.3d 32,
36 n.5 (1st Cir. 2013); United States v. Allen,
573 F.3d 42, 53
(1st Cir. 2009); United States v. Fanfan,
558 F.3d 105, 106 (1st
Cir. 2009); United States v. Tsarnaev,
2015 WL 45879, at *3 (D.
Mass. Jan. 2, 2015); United States v. Torres-Moreno,
28 F. Supp.
3d 136, 137 (D.P.R. 2014).
Reconsideration of an order is “‘an extraordinary remedy
which should be used sparingly.’” Palmer v. Champion Mtg., 465
F.3d 24, 30 (1st Cir. 2006) (quoting 11 Charles Alan Wright et
al., 11 Federal Practice and Procedure § 2810.1 (2d ed. 1995)).
For that reason, reconsideration is “appropriate only in a
limited number of circumstances: if the moving party presents
newly discovered evidence, if there has been an intervening
change in the law, or if the movant can demonstrate that the
original decision was based on a manifest error of law or was
clearly unjust.” Allen,
573 F.3d at 53. Importantly, a motion
for reconsideration cannot succeed when the moving party is
attempting “to undo its own procedural failures” or “advanc[ing]
arguments that could and should have been presented earlier.”
Id. A motion for reconsideration also is not “a mechanism to
regurgitate old arguments previously considered and rejected.”
Biltcliffe v. CitiMortgage, Inc.,
772 F.3d 925, 930 (1st Cir.
2014) (internal quotation marks omitted).
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Background
Based on a tip from a concerned citizen, who has been
identified as Robert “Butch” Bain, members of the New Hampshire
Drug Task Force; Sergeant Patrick Payer, who is a Campton police
officer; and Bain walked over Apicelli’s property looking for
marijuana. They found marijuana plants growing in a wooded area
near an orchard and had a surveillance camera installed to make
video recordings of that area. Videotape recordings taken by
the camera showed a man walking into the area and tending the
marijuana plants.
The police identified the man seen in the video as Apicelli
based on “police department, motor vehicle, and criminal
records.” Bain viewed the video footage and also identified the
man seen in the video as Apicelli “based on his attire,
mannerisms, and physical descriptors.”
Payer applied for a warrant to search Apicelli’s home and
submitted his affidavit in support of the application. The
affidavit described Bain’s tip, the resulting investigation of
Apicelli’s property, the discovery of marijuana growing on
Apicelli’s property, and the identification of Apicelli as the
person who was tending the marijuana plants. The search warrant
was granted on the day of the application.
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Payer, along with members of the New Hampshire Drug Task
Force and a state trooper, searched Apicelli’s home pursuant to
the warrant. In the course of the search, the officers found
marijuana plants, growing equipment, evidence of marijuana
harvesting and use, and a red backpack that the man in the
surveillance video was wearing. The officers seized evidence
pertaining to marijuana.
Apicelli moved to suppress the evidence seized from his
home and Bain’s identification of him. Apicelli did not request
a hearing on his motion to suppress, and the court did not hold
a hearing both because Apicelli did not request one and because
the record did not show a material factual dispute that would
require a hearing. The court denied the motion to suppress,
concluding that Apicelli had not established a Fourth Amendment
violation to support suppression of the evidence seized in the
search of his home and did not establish a due process violation
in Bain’s identification of him from the video footage.
The court held a telephone conference with counsel on May
13, 2015. One issue that was discussed was the speed of the
surveillance video footage when Bain viewed the video and
identified Apicelli as the man seen in the video. The
government has confirmed, based on information from the Campton
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Police Department, that Bain saw the video footage at a normal,
real-time, speed.
Discussion
Apicelli argues that a hearing was necessary on his motion
to suppress because material factual disputes exist about the
reliability of Bain’s tip and his identification of Apicelli in
the video footage. He also argues that the evidence seized from
his home should be suppressed because Bain’s tip did not provide
probable cause for the search warrant and because newly
discovered evidence supports his theory that Bain was motivated
to identify Apicelli in order to retaliate against him. The
government objects to the motion for reconsideration.
A. Hearing
Apicelli acknowledges that he did not request a hearing on
his motion to suppress. His counsel states that he presumed a
hearing would be held. Counsel also states that he intended to
check a box for a hearing when he electronically filed the
motion and that his failure to do so was an oversight.
As is explained above, a motion for reconsideration cannot
be granted to undo the moving party’s procedural errors or to
allow the moving party to make arguments that could and should
have been made before the order issued. That is what Apicelli
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is attempting to do here. For that reason alone,
reconsideration of whether a hearing should have been granted is
inappropriate. Even if a request for a hearing had been made,
however, Apicelli did not then and does not now meet the
standard for holding a hearing on his motion to suppress.
1. Identification
Apicelli moved to suppress Bain’s identification of him as
the man in the video footage and to prevent Bain from
identifying him in court. In support of reconsideration,
Apicelli argues that a material factual dispute exists about the
validity of Bain’s identification of him in the video footage.
He contends that the video footage could not support a reliable
identification.
As was stated in the order denying the motion to suppress,
“[a] criminal defendant has no presumptive right to an
evidentiary hearing on a motion to suppress.” Cintron, 724 F.3d
at 36. To carry his burden for a hearing, “the defendant must
show that there are factual disputes which, if resolved in his
favor, would entitle him to the requested relief.”
Id.
(internal quotation marks omitted).
The relief Apicelli requested in the motion to suppress was
to exclude Bain’s identification of Apicelli in the video
footage. The Due Process Clause is violated and an
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identification of a suspect must be suppressed only if the
procedure was both suggestive and unnecessary and, under all of
the circumstances, there is a “substantial likelihood of
misidentification.” Perry v. New Hampshire, 132 S. Ct. 716, 724
(2012).
Apicelli contends that the court misunderstood the import
of the two prints of a single frame from the video footage that
he submitted with his motion to suppress. One print shows a
wooded area and the other is a blow up of that frame and is
unrecognizable.1 Apicelli argues that the prints show a moving
person near the center.2 Apicelli further argues that because
the blow up is unclear, as the court noted in the order denying
the motion to suppress, that establishes a material factual
dispute about the reliability of Bain’s identification.
Apicelli does not represent that Bain identified him based
on the single frame that was printed from the video footage or
that Bain ever saw the prints of the single frame. Instead,
Bain made his identification of Apicelli based on viewing the
surveillance video footage. Therefore, it is unclear what
purpose the single frame and blurry blow up prints, which
1 Apicelli represents that the blow up was made from the
single frame.
2 The still frame, of course, does not show movement.
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Apicelli made and submitted with his motion to suppress, were
intended to serve. Neither raises a factual dispute about
Bain’s identification that would require a hearing.
In support of his motion for reconsideration, Apicelli has
submitted disks of the video footage taken by the surveillance
camera that was shown to Bain. The video footage is not newly
discovered evidence, and Apicelli appropriately does not argue
that it is. He provides no reason for not submitting the video
footage with his motion to suppress.
Nevertheless, the court has undertaken a careful review of
the video footage that Apicelli submitted to determine whether
it creates a material factual dispute about the reliability of
Bain’s identification that would require a hearing. When the
court first played the CDs on its computer, they ran at a high
speed making them very difficult to watch and assess. With the
assistance of a technician, the court was able to view the
videos using VLC Media Player on its computer, and this resulted
in the videos being played in real time. The video footage
provides ample opportunity for Bain, who was familiar with
Apicelli from prior experience, to identify him. Therefore, the
videos do not raise a factual dispute about the reliability of
Bain’s identification that would require a hearing to determine
whether they must be excluded from trial.
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2. Search Warrant
Apicelli argued in support of his motion to suppress that
the warrant application affidavit was deficient because it
omitted information about Bain that would show his vindictive
motive toward Apicelli. A hearing on a challenge to an
affidavit used to obtain a search warrant will be granted only
if the defendant shows “(1) that a false statement or omission
in the affidavit was made knowingly and intentionally or with
reckless disregard for the truth; and (2) the falsehood or
omission was necessary to the finding of probable cause.”
United States v. Rigaud, 684 F.3d 169, 173 (1st Cir. 2012).
Apicelli has submitted “newly discovered evidence” that he
contends provides more proof that Bain could have implicated him
in criminal activity because of Bain’s ill will toward Apicelli.
The new evidence is a copy of a “PETITION” that states that an
unidentified “Road Agent” in Campton, who apparently is Bain,
“has Threatened members of the Community that did not Vote for
him.” The petition is dated March 30, 2015, and asks for the
road agent’s “Removal or Resignation.”
The petition that Apicelli submitted did not exist when
Payer applied for the search warrant and, therefore, was not an
“omission” from the affidavit. Apicelli provides no evidence or
argument that Payer omitted any other information about Bain
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knowingly, intentionally, or with reckless disregard for the
truth. Most importantly, as explained in the order denying the
motion to suppress, the information Apicelli cites to show
Bain’s ill will would not affect the probable cause
determination. Probable cause for the warrant was based on the
results of the investigation conducted by the police and the New
Hampshire Drug Task Force, including the surveillance videotape,
not on Bain’s tip.
Therefore, Apicelli has not shown grounds for a hearing on
his motion to suppress.
B. Merits
Apicelli contends that the order denying his motion to
suppress requires reconsideration because it was based on errors
and because new evidence supports the motion. Apicelli argues
that the court erred in stating that Bain’s tip was based on
seeing marijuana growing on Apicelli’s property, that the court
misunderstood the point made by the blurry blow-up print, and
that newly discovered evidence undermines Bain’s credibility and
the reliability of his identification. The government objects
on the grounds that none of Apicelli’s arguments warrants
reconsideration.
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1. Bain’s Tip
As the court has previously stated, the search warrant was
not obtained based on probable cause provided by Bain’s tip.
Instead, based on Bain’s tip, the police and the New Hampshire
Drug Task Force undertook an investigation to determine whether
marijuana was being grown on Apicelli’s property. Part of the
investigation was the installation of the surveillance camera.
Payer and others saw marijuana growing on Apicelli’s property,
viewed the surveillance video, and identified Apicelli as the
man seen in the video. Whether Bain reported to the police that
he saw marijuana growing or suspected marijuana was growing on
Apicelli’s property or that he had other suspicions about
Apicelli or activities on his property is not material to the
probable cause determination for the search warrant.
Therefore, the court’s characterization of Bain’s tip in
the order denying Apicelli’s motion to suppress is not relevant
to the decision.
2. Videotape and Prints
Apicelli argues that the blurry blow-up print shows a man
moving in the center of the frame. Because the court could not
recognize what was shown in the print, Apicelli contends, Bain’s
identification of Apicelli as the man in the video footage is
unreliable. As is discussed above, Bain identified Apicelli
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based on viewing the video footage, not the prints that Apicelli
submitted for purposes of the motion to suppress. Therefore,
the prints are not relevant to determining whether Bain’s
identification was reliable.
As was explained in the order denying the motion to
suppress, the police did not rely exclusively on Bain’s
identification of Apicelli for purposes of the search warrant
application. Instead, the police independently identified
Apicelli as the man shown in the video footage. Therefore, any
dispute about Bain’s ability to identify Apicelli in the video
footage is not relevant to the validity of the search warrant.
In addition, as stated above, the court has reviewed the
videotape footage that Apicelli submitted in support of the
motion for reconsideration. The video shows a man walking into
the area where marijuana plants are growing and tending the
plants. At times, the man is wearing a red backpack. The video
shows long sequences with different views of the man, including
his face and his profile, and shows him walking, standing,
bending, crouching, and engaged in activities with the plants.
Bain identified Apicelli based on his relationship with him over
two years and his knowledge of Apicelli’s “attire, mannerisms,
and physical descriptors.”
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The videos were sufficiently clear to provide Bain with
ample opportunity to identify Apicelli and provide no basis to
exclude the identification from evidence at trial. Of course,
during the trial, Apicelli will have the opportunity to
challenge the reliability of the identification through cross
examination.
4. Newly Discovered Evidence
Apicelli contends that the March 2015 petition by Campton
residents in support of the removal or resignation of the
Campton road agent shows that Bain is capable of vindictive
behavior. Because the search warrant was not based on Bain’s
tip or on his identification, alone, Bain’s vindictive motives
are not relevant to the motion to suppress the evidence seized
as a result of the search. Taken in the totality of the
circumstances, the petition also does not undermine the
reliability of Bain’s identification of Apicelli in the
videotape.
Therefore, the petition does not provide grounds for
reconsideration of the denial of the motion to suppress.
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Conclusion
For the foregoing reasons, the defendant’s motion for
reconsideration (document no. 46) is denied.
SO ORDERED.
__________________________
Joseph DiClerico, Jr.
United States District Judge
May 14, 2015
cc: Donald A. Feith, Esq.
Charles L. Rombeau, Esq.
Sven D. Wiberg, Esq.
United States Marshal
United States Probation
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