United States District Court, N.D. Indiana, Fort Wayne Division
REPORT AND RECOMMENDATION
COLLINS UNITED STATES MAGISTRATE JUDGE
the Court is a restated motion to suppress and request for
evidentiary hearing (DE 362), together with a memorandum in
support (DE 363), filed by Defendant Dewayne Lewis, seeking
to suppress all evidence seized during the search of Room 211
in the Red Roof Inn in Greenwood, Indiana, on February 3,
2015. Lewis alleges that the law enforcement
officers knowingly made false material declarations in this
case and that such actions rise to the level of
“outrageous government conduct” that violates his
Fifth and Fourteenth Amendment rights to due process of law.
The government filed a response to the restated motion on May
4, 2018. (DE 366).
restated motion to suppress and request for evidentiary
hearing has been referred to the undersigned Magistrate Judge
for a report and recommendation pursuant to 28 U.S.C. §
636(b)(1) and Federal Rule of Criminal Procedure 59(b). (DE
331). After considering the evidence and argument, I
RECOMMEND that Lewis's restated motion to suppress and
request for evidentiary hearing be DENIED.
February 25, 2015, Lewis was charged by way of a single-count
Indictment with possessing five kilograms or more of cocaine
with the intent to distribute it, in violation of 21 U.S.C.
§ 841(a)(1). (DE 13). On February 26, 2015, Lewis
entered a plea of not guilty to the single-count Indictment.
April and May 2015, Lewis filed various motions seeking to
dismiss the Indictment and suppress evidence (DE 29-DE 31; DE
33-DE 34), which the Court consolidated together into
Lewis's second amended motion to dismiss (DE 33).
(See DE 56). Thereafter, Chief Judge Theresa
Springmann referred the consolidated motion to me to conduct
an evidentiary hearing and to issue a report and
recommendation. (DE 57). An evidentiary hearing and a
supplemental evidentiary hearing were held, and the parties
filed various post-hearing briefs. (DE 110-DE 111; DE 136-DE
137; DE 169; DE 186; DE 189; DE 252-DE 253; DE 258-DE 260).
On May 24, 2017, I issued a Report and Recommendation
recommending that Lewis's consolidated motion be granted.
(DE 265). The parties then filed objections to the Report and
Recommendation. (DE 266-DE 268, DE 270-DE 271).
10, 2017, the Court accepted in part and rejected in part the
Report and Recommendation, adopting the findings of fact in
their entirety but rejecting the recommended disposition of
the consolidated motion and denying Lewis's consolidated
motion. (DE 272). On July 18, 2017, Lewis filed a motion to
reconsider the Court's Order denying suppression, which
the Court also denied. (DE 290-DE 291). Lewis then filed an
interlocutory appeal of the Court's Order denying
suppression, but the Seventh Circuit Court of Appeals
dismissed the appeal as premature. (DE 293; DE 336).
November 1, 2017, Lewis filed another motion to suppress
evidence, contending that the government admitted to new
information during a hearing on September 14, 2017, regarding
how law enforcement officers obtained his cellular telephone
number. (DE 315). Lewis argued that this meant the government
misled and fabricated the information and facts during an
earlier evidentiary hearing held on February 9 and 10, 2016,
as to how law enforcement obtained his cellular telephone
number. (DE 315 at 3). On January 11, 2018, the Court denied
Lewis's motion to suppress and subsequent request for an
evidentiary hearing, explaining that the Court had already
ruled on whether the government disclosed new information and
that the Court declined to revisit the issue. (DE 340).
through counsel, filed the instant restated motion to
suppress and request for evidentiary hearing on April 20,
2018. (DE 362). The government filed a response brief on May
4, 2018 (DE 366), and the motion is now ripe for ruling.
restated motion to suppress, Lewis argues that the law
enforcement officers in this case have made sworn statements
to this Court that are so incongruous with those
officers' other statements and official reports such as
“to create a colorable claim of perjury.” (DE 363
at 16). Specifically, Lewis contends that the officers'
testimony at the evidentiary hearings on February 9 and 10,
2016, and January 27, 2017, is irreconcilably inconsistent
with their earlier statements in the original incident
reports and warrant application. (DE 363 at 18). Lewis
speculates that such alleged false statements were made in an
effort to conceal the use of controversial technology or
questionable inter-agency information sharing by the
government, which is “truly conscience-shocking,
” and as such, constitutes outrageous government
conduct. (DE 363 at 20).
government responds that Lewis is simply requesting yet
another reconsideration of the Court's prior ruling
denying his motion to suppress the evidence seized during the
search of his hotel room in Greenwood, Indiana, on February
3, 2015. In essence, Lewis wants another hearing to reopen
cross-examination of the government's witnesses in order
to impeach them with their alleged prior inconsistent
statements. The government urges that Lewis's
“recycled motion” and request for evidentiary
hearing should be denied. (DE 366 at 1).
Lewis's Request for Evidentiary Hearing
supporting memorandum, Lewis states that “[a]ll facts
related in this summary are either a matter of public record,
a matter of record in this Court in the above-captioned cause
or included in materials developed by the government and
provided to Defendant in discovery.” (DE 363 at 1).
Lewis then requests an evidentiary hearing “to either
get these documents ...