Page:United States Reports 502 OCT. TERM 1991.pdf/161

 502us1$$1H 02-08-99 07:20:49 PAGES OPINPGT

Cite as: 502 U. S. 1 (1991)

3

Per Curiam

Among the theories on which the Government originally contested the motion was that the second search had been conducted pursuant to respondent’s continuing consent. However, before the District Court ruled on the suppression motion, the Government abandoned the continuing consent theory in papers filed with the court, citing a lack of legal support for its position. On November 15, 1989, after an evidentiary hearing, the District Court granted the motion to suppress and noted in its order the Government’s abandonment of the continuing consent theory. 725 F. Supp. 1195, 1200 (Wyo. 1989). On December 13, 1989, the Government filed with the District Court a “Motion for Reconsideration of Suppression Order.” The sole basis for the Government’s motion was its reassertion of the continuing consent theory. On January 3, 1990, the District Court denied the motion. The Government noticed its appeal on January 30, 1990, less than 30 days after the denial of the motion for reconsideration but 76 days after the initial suppression order. A divided panel of the Tenth Circuit dismissed the appeal as untimely, holding that the Government’s motion to reconsider did not “toll” the 30-day period1 to appeal which began 1 Federal Rule of Appellate Procedure 4(b) provides, inter alia: “When an appeal by the government is authorized by statute, the notice of appeal shall be filed in the district court within 30 days after the entry of (i) the judgment or order appealed from or (ii) a notice of appeal by any defendant.” Statutory authorization for the United States to appeal a suppression order is found at 18 U. S. C. § 3731: “An appeal by the United States shall lie to a court of appeals from a decision or order of a district courts [sic] suppressing or excluding evidence. . . . . . “The appeal in all such cases shall be taken within thirty days after the decision, judgment or order has been rendered and shall be diligently prosecuted.”