PUBLISH 

UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

UNITED STATES OF AMERICA 

Plaintiff - Appellee, 

v. 

DANA J. HUFF, 

No. 13-3216 

Defendant - Appellant. 

 

Appeal from the United States District Court 

for the District of Kansas 

(D.C. No. 2:11-CR-20111-KHV-01) 

Submitted on the briefs*

: 

James L. Spies of the law office of James L. Spies, P.A., Kansas City, Kansas for 

Defendant–Appellant. 

Barry R. Grissom, United States Attorney, and Terra D. Morehead, Assistant United 

States Attorney, District of Kansas, Kansas City, Kansas, for Plaintiff–Appellee. 

Before McHUGH, McKAY, and BALDOCK, Circuit Judges. 

McKAY, Circuit Judge. 

This case primarily concerns the limits to a district court’s discretion when ruling 

 *

This case was ordered to be submitted on the briefs on November 18, 2014. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 14, 2015

Elisabeth A. Shumaker 

Clerk of Court

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on government motions for reconsideration. The district court initially ruled to suppress 

evidence of firearms seized during the arrest of Appellant Dana J. Huff, but the court 

agreed to reconsider the motion after the government presented a new legal basis for the 

seizure. Upon reconsideration of the motion to suppress, the court found the seizure to be 

proper. Mr. Huff argues that the court improperly reconsidered the motion to suppress 

because the government provided no justification for its initial oversight and the law 

enforcement officers lacked probable cause to arrest him. 

We hold that the district court may reconsider a motion to suppress without 

requiring the government to justify why it initially failed to set forth that legal basis for 

the seizure of evidence. We also hold that the officers had sufficient probable cause to 

arrest Mr. Huff after seeing the firearms, one of which was being transported in violation 

of a local ordinance. We therefore affirm the ruling of the district court. 

BACKGROUND 

In June 2011, two police officers on a routine patrol in Kansas City, Kansas 

observed an Isuzu Rodeo stop for a red light at an intersection. The vehicle initially 

stopped left of the center stripe and in one of the oncoming lanes of traffic before backing 

up and moving rightward to a correct lane. The officers initiated a traffic stop because of 

the violation. 

The two officers approached on either side of the vehicle. The passenger-side 

officer, using a flashlight, spotted a handgun underneath the back of the driver’s seat as 

he approached. The officer notified his partner that the individuals in the car—Mr. Huff 

in the driver’s seat and another man in the passenger seat—were armed and dangerous. 

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The officers instructed the men in the vehicle to place their hands on the dash. 

The passenger-side officer noticed Mr. Huff move his hands back and forth near 

the gear shift in a manner suggesting Mr. Huff might try to drive away. The officer 

opened the passenger door, leaned into the car, and removed the keys from the ignition. 

While doing this, the officer noticed a second firearm—a rifle—wedged between the man 

in the passenger seat and the vehicle’s center console. The officers directed Mr. Huff and 

his passenger to exit the vehicle, handcuffed them, and put them in the back of their 

patrol car. 

Mr. Huff was subsequently indicted on one count of being a felon in possession of 

a firearm, based on both the handgun and the rifle. He was also indicted on one count of 

possession of an unregistered, short-barreled rifle. 

At trial, Mr. Huff, acting pro se, sought to suppress evidence of the two firearms 

the officers found in his vehicle. Mr. Huff argued the officers lacked reasonable 

suspicion of criminal activity when searching his vehicle, and that they unlawfully 

arrested him without a warrant and without probable cause to believe he had committed a 

crime. 

After a suppression hearing, the court held the initial stop to be lawful based on 

Mr. Huff’s traffic infraction. The court also held that the officer who leaned into the 

vehicle to remove the keys from the ignition acted lawfully. However, the court granted 

the motion to suppress evidence of both firearms because, at the time of the arrest the 

officers had found no evidence of any legal violation. Specifically, the court found the 

officers had not questioned the two individuals about the firearms before they were 

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arrested, and the government produced no evidence that the officers knew then of Mr. 

Huff’s past felony conviction or the rifle’s unregistered status. The government cited no 

evidence of probable cause to initiate an arrest, and, so far as the court could determine, 

the arrest took place merely for officer safety concerns and to secure the scene. 

Two days after the district court issued its decision, the government filed a motion 

to reconsider the suppression of evidence of the two firearms. The government said it 

had failed to specifically identify the ordinance Mr. Huff violated during argument on the 

motion to suppress. The government’s motion for reconsideration stated that the pistol—

spotted in plain view in the vehicle by one of the officers—demonstrated that Mr. Huff 

had violated Kansas City, Kansas Municipal Ordinance § 22-177(a)(5), which provides 

that “[t]ransporting any pistol, revolver, or other firearm which is not unloaded and 

encased in a container which completely enclosed the firearm” constitutes unlawful use 

of a weapon. 

The court granted the government’s motion for reconsideration and, in light of the 

newly presented ordinance, found that the officers had probable cause for the arrest. A 

jury ultimately found Mr. Huff guilty of being a felon in possession of a firearm, based 

on the rifle but not the pistol, and not guilty of being a felon in possession of an 

unregistered short-barreled rifle. Mr. Huff then brought this appeal challenging the 

district court’s decisions to grant the government’s motion for reconsideration and to 

deny his motion to suppress evidence of the firearms. 

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DISCUSSION 

We first consider whether the district court properly granted the government’s 

motion to reconsider its decision to suppress evidence of the two firearms. We review a 

district court’s decision whether to reconsider a prior ruling for abuse of discretion. 

United States v. Randall, 666 F.3d 1238, 1241 (10th Cir. 2011). 

We have held that a motion to reconsider may be granted when the court has 

misapprehended the facts, a party’s position, or the law. Servants of The Paraclete v. 

Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Specific situations where circumstances 

may warrant reconsideration include “(1) an intervening change in the controlling law, 

(2) new evidence previously unavailable, and (3) the need to correct clear error or prevent 

manifest injustice.” Id. “A motion to reconsider is not a second chance for the losing 

party to make its strongest case or to dress up arguments that previously failed.” Voelkel 

v. Gen. Motors Corp., 846 F. Supp. 1482, 1483 (D. Kan. 1994). We have specifically 

held that “[a] motion to reconsider should not be used to revisit issues already addressed 

or advance arguments that could have been raised earlier.” United States v. Christy, 739 

F.3d 534, 539 (10th Cir. 2014). 

Appellant stated correctly that the government had ample opportunity to bring the 

ordinance requiring transported pistols be unloaded and completely encased to the 

attention of the district court in its initial opposition to the motion to suppress evidence of 

firearms in Mr. Huff’s vehicle. The government provided no valid excuse for failing to 

do so. 

Nevertheless, the district court granted the government’s motion for 

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reconsideration because in this case the government’s mistake related to an omission of a 

legal argument, not the failure to present evidence on a particular issue. The court 

therefore concluded there was no police misconduct to deter through suppression of 

evidence which was legally obtained. 

Other circuits differ on how district courts should handle motions by the 

government to reconsider suppression orders. When the government seeks 

reconsideration of a suppression order based on a new legal argument or evidence, the 

Eleventh and D.C. Circuits require the government to justify its failure to present this 

legal argument or evidence in the earlier proceedings. See United States v. VillabonaGarnica, 63 F.3d 1051, 1055 (11th Cir. 1995) (“By failing to raise an issue at a 

suppression hearing without offering any justification therefor, the government waives its 

right to assert it in subsequent proceedings.” (internal quotation marks and brackets 

omitted) (quoting, in parenthetical, United States v. Thompson, 710 F.2d 1500, 1504 

(11th Cir. 1983))); McRae v. United States, 420 F.2d 1283, 1288 (D.C. Cir. 1969) 

(holding that the government was “obligated to advance stronger justification for 

relitigating” a suppression issue where the issue raised was clear and a considered ruling 

had been made). 

On the other hand, the Second, Fifth, Seventh, and Ninth Circuits hold that on a 

motion to reopen a suppression hearing, no bright-line rule exists requiring such 

justification. See, e.g., United States v. Ozuna, 561 F.3d 728, 734-35 (7th Cir. 2009); In 

re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 177, 196-97 (2d Cir. 2008); 

United States v. Rabb, 752 F.2d 1320, 1323 (9th Cir. 1984) (abrogated on other grounds, 

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as recognized by United States v. Franco-Beltran, 229 Fed. Appx. 592 n.1 (9th Cir. 

2007); United States v. Scott, 524 F.2d 465, 467 (5th Cir. 1975). Under the law in these 

circuits, 

A defendant is entitled to have evidence suppressed only if it 

was obtained unconstitutionally. If matters appearing later 

indicated that no constitutional violation occurred, society’s 

interest in admitting all relevant evidence militates strongly in 

favor of permitting reconsideration. . . . [A] criminal 

defendant acquires no personal right of redress in suppressed 

evidence because the rationale for suppressing unlawfully 

obtained evidence is to deter official misconduct, not to 

compensate criminal defendants for the violation. 

In re Terrorist Bombings, 552 F.3d at 197 (internal quotation marks and 

citations omitted). 

The Supreme Court has consistently stated that the exclusionary rule exists 

primarily to deter official misconduct. See, e.g., United States v. Leon, 468 U.S. 897, 898 

(1984); United States v. Calandra, 414 U.S. 338, 347 (1974). In Herring v. United 

States, 555 U.S. 135, 144 (2009), the Supreme Court further stated that “[t]o trigger the 

exclusionary rule, police conduct must be sufficiently deliberate that exclusion can 

meaningfully deter it, and sufficiently culpable that such deterrence is worth the price 

paid by the justice system.” 

Under this reasoning, when suppressed evidence later turns out to have been 

constitutionally obtained, application of the exclusionary rule provides no meaningful 

deterrence. Here, police officers lawfully seized evidence, but the government’s 

attorneys failed to inform the district court of the legal justification for that seizure before 

the district court granted Mr. Huff’s motion to suppress. To categorically prohibit the 

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district court from reconsidering that suppression of evidence under those circumstances 

serves merely to punish the government for its attorneys’ oversight. However, the 

exclusionary rule was not crafted to deter judicial or prosecutorial error or oversight, but 

to deter illegal police searches and seizures. 

Application of the exclusionary rule in cases like this provides no meaningful 

deterrence to police officers who committed no misconduct, while it exacts a high toll on 

the justice system by potentially allowing guilty defendants to go free. We therefore 

agree with the majority of our sister circuits who have considered this question and 

concluded that the district court in such a case should be permitted—as one of the many 

considerations when ruling on a motion for reconsideration—to determine whether its 

earlier suppression of evidence should stand in light of the newly raised legal basis for 

the initial seizure. The district court may prefer, even require, the government to explain 

why it failed to introduce an argument earlier, but that decision should rest with the 

district court. We therefore hold that the district court did not err in exercising its 

discretion in this case to grant the motion for reconsideration. 

Based on its reconsideration of this matter—reconsideration we deem proper—the 

district court denied the motion to suppress evidence of the firearms seized from Mr. 

Huff’s vehicle. We now turn to Appellant’s arguments that the court erred in denying his 

motion to suppress this evidence and that the officers arrested him without probable 

cause. We review the district court’s denial of a motion to suppress under the totality of 

the circumstances, viewing the evidence in the light most favorable to the government. 

United States v. Kimoana, 383 F.3d 1215, 1220 (10th Cir. 2004). We accept the district 

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court’s factual findings unless clearly erroneous but review the ultimate question of 

reasonableness under the Fourth Amendment de novo. Id. 

Appellant argues that the officer who reached into the vehicle and removed the 

keys from the ignition illegally searched his vehicle because the officer failed first to ask 

Mr. Huff to remove the keys himself. Appellant also argues that the ultimate reason 

given for his arrest—after the district court granted the government’s motion for 

reconsideration—was merely pretext. Specifically, he states that although the arresting 

officer who testified at the hearing on the motion for reconsideration said he was aware 

of Kansas City Municipal Ordinance § 22-177(a)(5), he never testified that he based his 

decisions to reach into the car or to arrest Mr. Huff on that ordinance. Therefore, Mr. 

Huff argues, it seems unlikely the officer truly based either action on Mr. Huff’s violation 

of the ordinance, and the search and subsequent arrest were without probable cause. 

The Supreme Court has foreclosed these arguments, since it has held that an 

officer’s subjective reason for making an arrest may be different from the criminal 

offense which the known facts provide probable cause for, and that “an arresting officer's 

state of mind (except for the facts that he knows) is irrelevant to the existence of probable 

cause.” Devenpeck v. Alford, 543 U.S. 146, 153 (2004). “[T]he Fourth Amendment’s 

concern with ‘reasonableness’ allows certain actions to be taken in certain circumstances, 

whatever the subjective intent,” Whren v. United States, 517 U.S. 806, 814 (1996), 

because “evenhanded law enforcement is best achieved by the application of objective 

standards of conduct, rather than standards that depend upon the subjective state of mind 

of the officer.” Horton v. California, 496 U.S. 128, 138 (1990). 

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For probable cause to exist, an officer need only have the specific factual 

knowledge that justifies a search or arrest, regardless of the officer’s actual motivation. 

See Whren, 517 U.S at 812-13. Police officers may search vehicles without a warrant if 

they have probable cause to believe the vehicle contains evidence of a crime. United 

States v. Nicholson, 17 F.3d 1294, 1297 (10th Cir. 1994). In this case, the officers were 

aware of a gun in the car which, regardless of whether they realized it, was being 

transported in violation of Kansas City Municipal Ordinance § 22-177(a)(5). Upon 

seeing the uncased weapon, the officers had the requisite probable cause both to conduct 

a search of the vehicle and to initiate an arrest based upon this weapons violation. 

Whether or not the officers actually had the ordinance in mind when conducting the 

search or making the arrest makes no difference in this analysis. 

We therefore hold the initial search and the subsequent arrest to be lawful and 

AFFIRM the ruling of the district court. 

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