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United States v. Apicelli

United States District Court, D. New Hampshire

May 14, 2015

United States of America
Peter Apicelli.

ORDER Opinion No. 2015 DNH 101.

JOSEPH DiCLERICO, Jr., District Judge.

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 ยง 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).


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.

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 Police Department, that Bain saw the video footage at a normal, real-time, speed.


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 ...

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