United States District Court, D. Nebraska
R. Zwart United States Magistrate Judge.
indictment against Defendant arises from a traffic stop of a
vehicle he was driving on December 4, 2015. At the time of
the stop, a canine sniff was conducted and the dog allegedly
indicated to the odor of narcotics. The vehicle was searched
and officers found large amounts of United States currency
and other evidence of illegal drug activity. Defendant filed
a motion to suppress, (Filing No. 19). The hearing
on that motion is currently set for December 1, 2016.
now moves to continue the hearing because a new attorney has
reviewed the case and entered an appearance, that attorney
cannot attend the hearing as currently scheduled, and
Defendant wants to file an additional motion to suppress
challenging the canine sniff conducted at the time of the
traffic stop. (Filing No. 29).
deadline for filing pretrial motions was initially set for
July 5, 2016. (Filing No. 13). On Defendant's
motions, that deadline was continued to August 5, 2016,
(Filing No. 16), and then to September 6, 2016.
(Filing No. 19). Defendant's pending motion to
suppress was timely filed on September 6, 2016, and was set
for hearing on November 9, 2016. (Filing No. 22). At
Defendant's request, that hearing was continued to
December 1, 2016. (Filing No. 27). Defendant now
wants to continue that hearing so he can file a motion to
suppress which challeges the “reliability of the K-9,
Sacha's, alert, ” which will require
“discovery concerning K-9, Sacha's training and
experience” and retaining “a qualified expert to
review the facts concerning the Sacha's alert, and its
training and experience.” (Filing No. 29).
Defendant's new counsel “is still conducting
interviews of experts concerning the K-9 reliability, and
requires more time to complete investigation and discovery of
issues.” (Filing No. 29).
Rule 45 (b)(1) of the Federal Criminal Rules:
When an act must or may be done within a specified period,
the court on its own may extend the time, or for good cause
may do so on a party's motion made:
(A) before the originally prescribed or previously extended
time expires; or
(B) after the time expires if the party failed to act because
of excusable neglect.
Fed. R. Crim. P. 45(b)(1).
pending motion to continue is not limited to moving the
evidentiary hearing set for December 1, 2016: It seeks to
permit an otherwise untimely motion to suppress the canine
sniff. As to continuing the deadline for filing pretrial
motions, the motion to continue was not timely filed: It was
not filed before September 6, 2016, the court-ordered
deadline for filing motions to suppress, and there is no
showing of excusable neglect. Fed. R. Crim. P. 45(b)(1).
Defendant's motion to continue was timely filed, the
court may extend the deadline only upon a showing of
“good cause.” Fed. R. Crim. P. 45(b)(1). The
primary and threshold measure of good cause is the
movant's diligence in attempting to meet the deadlines
set within a court's order. Rahn v. Hawkins, 464 F.3d
813, 822 (8th Cir. 2006).
is not asking for leave to challenge evidence just recently
received from the government. He is moving to file a new
motion to suppress which challenges the canine sniff
Defendant personally witnessed nearly a year ago. Defendant
has known from the outset of this case that the canine sniff
allegedly provided the probable cause for searching his
vehicle. Long before the September 6, 2016 deadline for
filing pretrial motions, Defendant possessed the facts
necessary to prompt an investigation, and to investigate and
challenge the canine sniff. He has failed to show due
diligence in attempting to meet the court-ordered pretrial
motion deadline, and has therefore failed to show “good
cause” to extend that deadline.
is also moving to continue the suppression hearing due to the
unavailability of his additional attorney, who entered an
appearance only three days ago. It is unclear when that
attorney accepted this case, and whether she accepted this
case knowing she is unable to attend the suppression hearing
already scheduled in this court. Moreover, Defendant ...