United States v. Scott

• Decision Date: 26 November 2012
• Docket Number: No. 11–10529.,11–10529.
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: UNITED STATES of America, Plaintiff–Appellant, v. Lomando Mark SCOTT, Defendant–Appellee.

705 F.3d 410

UNITED STATES of America, Plaintiff–Appellant,

v.Lomando Mark SCOTT, Defendant–Appellee.

No. 11–10529.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Sept. 11, 2012.

Filed Nov. 26, 2012.

Nadia Janjua Ahmed & Adam M. Flake, United States Attorney's Office District of Nevada, Las Vegas, NV, for the appellant.

Alina M. Shell & Brenda Weksler, Federal Public Defender's Office, Las Vegas, NV, for the appellee.

Appeal from the United States District Court for the District of Nevada, Philip M. Pro, District Judge, Presiding. D.C. No. 2:10–cr–00430–PMP–RJJ–1.

Before: MORRIS S. ARNOLD ^*, JOHNNIE B. RAWLINSON, and JAY S. BYBEE, Circuit Judges.

Opinion by Judge BYBEE; Concurrence by Judge RAWLINSON.

OPINION

BYBEE, Circuit Judge:

Defendant Lomando Scott was arrested and charged with possession of a controlled substance and a firearm. Scott moved to suppress evidence of these crimes that was discovered in the subsequent warrantless search of his car. After the government failed to file a timely written response to Scott's motion to suppress, raising its substantive arguments for the first time orally during the suppression hearing, the magistrate judge recommended that Scott's motion to suppress be granted. The government again asserted that the search was permissible under the automobile exception to the warrant requirement in its filed objections to the magistrate judge's Report and Recommendation. Nevertheless, the district court adopted the magistrate judge's Report without further comment and granted Scott's motion to suppress. The issues for review are whether the automobile exception argument has been waived, and, if not, whether the government's search of Scott's automobile was permissible under the automobile exception to the warrant requirement. We reverse.

I. FACTS AND PROCEDURAL BACKGROUND

In the afternoon hours of August 11, 2010, a constable arrived to execute a writ of execution at the North Las Vegas residence occupied by Lomando Scott. After entering the house, the constable smelled marijuana and saw Scott stuff four or five stacks of cash into plastic bags, at which point the constable promptly called the police. The responding officers also smelled marijuana, and after conducting a background check that revealed that Scott had prior felony convictions involving drugs and guns and had failed to update his address in violation of state registration requirements, the officers arrested Scott. Searches of Scott's person and the residence—which was owned by Wells Fargo—revealed $10,000 cash in Scott's pockets and significant quantities of drugs and drug paraphernalia in the residence.

The officers were aware that prior to his arrest Scott had gone back and forth between the house and his car, loading it with personal items from inside the house. Although a dog “sniff-test” did not indicate that there were drugs in the car, the officers nevertheless searched the automobile, finding a 9mm Glock 17 handgun and approximately 250 grams of cocaine base.

Scott was indicted in the District of Nevada for Possession of a Controlled Substance With Intent to Distribute, 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii); Felon in Possession of a Firearm, 18 U.S.C. §§ 922(g)(1), 924(a)(2); Possession of a Firearm During and in Relation to a Drug Trafficking Crime, 18 U.S.C. § 924(c); and Possession of a Controlled Substance With Intent to Distribute, 18 U.S.C. § 841(a)(1), (b)(1)(C). Scott filed a motion to suppress the handgun and cocaine seized from his car, alleging that the police's warrantless search of his car violated his Fourth Amendment rights.

The magistrate judge set a date for an evidentiary hearing and established a briefing schedule that called for the government's response. Instead of filing a brief addressing Scott's motion to suppress, the government filed a one-paragraph response, stating that “facts in dispute require this Court to make a determination in order to rule on legal issues regarding the search Defendant has challenged,” and requesting the opportunity to “brief the legal issues following the evidentiary hearing and witness testimony on this matter.” The magistrate judge denied this request. The magistrate judge held two evidentiary hearings, at which the government orally advocated for the inventory search and automobile exceptions to the warrant requirement. The government also requested permission to file a written response after the hearing, a request that was denied by the court. The government nevertheless filed a motion for leave to file a late response to Scott's motion to suppress.

After conducting the evidentiary hearings, the magistrate judge issued a Report and Recommendation, recommending that the government's late response be stricken and that Scott's motion to suppress be granted. In reaching these conclusions, the court considered the merits of the government's arguments with respect to the inventory search but not the automobile exception. The government filed its objections to the Report, raising, once again, both the inventory search and automobile exceptions to the warrant requirement.

The district court adopted the magistrate judge's recommendations without comment and granted Scott's motion to suppress. The government timely appealed, arguing that its warrantless search of Scott's automobile was supported by probable cause and was therefore permissible under the automobile exception to the warrant requirement. Scott argues in reply that the government waived the automobile exception argument by failing to raise it in a written filing by the deadline. The government, in turn, claims that Scott has waived any claim to waiver by failing to assert it before the magistrate judge or district court.

II. DISCUSSION

We review the lawfulness of a search and seizure—a mixed question of law and fact—de novo. United States v. Mendoza–Ortiz, 262 F.3d 882, 885 (9th Cir.2001). The district court's underlying findings of fact are reviewed for clear error. Id.

A. Scott Has Not Waived or Forfeited His Waiver Claim

Waiver is “the intentional relinquishment or abandonment of a known right,” whereas forfeiture is “the failure to make the timely assertion of [that] right.” United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (internal quotation marks omitted); see United States v. Castillo, 496 F.3d 947, 952 n. 1 (9th Cir.2007) (en banc). In general, a party may waive waiver expressly. United States v. Garcia–Lopez, 309 F.3d 1121, 1122–23 (9th Cir.2002) (finding that a waiver claim was waived where the government wrote in its answering brief “the Government ... now waives the argument ... that this appeal was barred by the appeal waiver in Garcia–Lopez's plea agreement”); see also United States v. Doe, 53 F.3d 1081, 1083 (9th Cir.1995) (holding that the waiver argument was waived when “counsel for the government at oral argument specifically urged the Court to reach the merits of th[e] appeal”). A party who fails to assert a waiver argument forfeits—and therefore implicitly waives—that argument. Norwood v. Vance, 591 F.3d 1062, 1068 (9th Cir.2010); see also Tokatly v. Ashcroft, 371 F.3d 613, 618 (9th Cir.2004) (holding that an implicit waiver occurred when the party failed to “argue waiver [and] instead elected to address the issue on the merits”); Chicano Educ. & Manpower Servs. v. U.S. Dep't of Labor, 909 F.2d 1320, 1328 & n.5 (9th Cir.1990) (holding that waiver was forfeited when “the Department [did not] make the waiver argument to the Secretary”).

Scott has neither waived nor forfeited his waiver argument. Rather, Scott devoted several pages of his argument before the magistrate judge to the issue of the government's untimely response, specifically indicating at the discussion's conclusion that he “wanted to put [his arguments] on the record.” In his argument, Scott noted both that “[t]he sanction for failure to file a response is dismissal” and that permitting the U.S. Attorney to file a response after the deadline would put “the Defendant and the Court at a disadvantage.” Moreover, taken in this context, Scott's statement that although “[t]he sanction for failure to file a response is dismissal,” he was “not asking the Court for dismissal” does not constitute an explicit waiver; the whole of his argument indicates his intention to prohibit the government from putting “the Defendant and the Court at a disadvantage.” Ultimately, the magistrate judge agreed that permitting an untimely response would prejudice Scott, a finding noted favorably in Scott's Response to Government's Objections to Report & Recommendation of United States Magistrate Judge, filed with the district court. Scott has not waived or forfeited his waiver argument; rather, he has placed the issue squarely before both the magistrate judge and the district court.

B. The Government Has Not Waived Its Automobile Exception Argument

Under Federal Rule of Criminal Procedure 12(e), “[a] party waives any Rule 12(b)(3) defense, objection, or request not raised by the deadline the court sets under Rule 12(c) or by any extension the court provides.” Fed.R.Crim.P. 12(e). Raising a theory to the magistrate judge “during the evidentiary hearing on the motion to suppress” preserves that theory for appeal. United States v. Sparks, 265 F.3d 825, 830 n.1 (9th Cir.2001), overruled on other grounds by

United States v. Grisel, 488 F.3d 844 (9th Cir.2007) (en banc). In Sparks, although the defendant did not raise the argument specifically to the district court, it was sufficient that the defendant “raised the issue to the magistrate judge and engaged him in a colloquy about the theory.” Id. Because the defendant “placed the issue in the record, the district court had the opportunity to consider and decide this claim.” Id. Even where a waiver argument may be available, “[w]hen a court rules on the merits of an untimely suppression motion, it implicitly concludes that there is adequate...