U.S. v. Evans, No. 96-4045

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore ESCHBACH, EASTERBROOK, and DIANE P. WOOD; EASTERBROOK
Citation131 F.3d 1192
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Joseph H. EVANS, Defendant-Appellant.
Docket NumberNo. 96-4045
Decision Date01 December 1997

Page 1192

131 F.3d 1192
UNITED STATES of America, Plaintiff-Appellee,
v.
Joseph H. EVANS, Defendant-Appellant.
No. 96-4045.
United States Court of Appeals,
Seventh Circuit.
Argued Oct. 2, 1997.
Decided Dec. 1, 1997.

Lawrence S. Beaumont (argued), Office of the United States Attorney, Urbana Division, Urbana, IL, for Plaintiff-Appellee.

Robert G. Granda (argued), Jon G. Noll, Jeffrey T. Page, Springfield, IL, for Defendant-Appellant.

Before ESCHBACH, EASTERBROOK, and DIANE P. WOOD, Circuit Judges.

EASTERBROOK, Circuit Judge.

A jury convicted Joseph Evans of possessing cocaine base with intent to distribute that drug; he was sentenced to 240 months' imprisonment in light of his prior drug and weapons convictions. Police found a package of crack cocaine in his pocket when he was arrested en route to a delivery. On executing a search warrant for the apartment where Evans was staying they found another 285 grams of cocaine, a digital scale, heroin residue (with Evans's fingerprint on the container), and proceeds of earlier drug sales. Evans argued at trial that other people had access to the room where the drugs were found, but, having confessed to the police that the drugs were his, Evans cannot expect an appellate court to declare that no reasonable jury could have found the evidence of possession sufficient. Lawyers have a duty to the court, transgressed in this case, to refrain from frivolous arguments.

Page 1193

Evans's other argument may not be frivolous but was waived. Before trial Evans moved to suppress the cocaine discovered in the search incident to his arrest. (Actually he moved to "suppress the arrest," an impossible request but one that conveyed the idea). He did not ask the judge to exclude the evidence seized when the police executed the search warrant for the apartment. The district judge took evidence, concluded that the police had probable cause to arrest Evans, and accordingly denied the motion. On appeal Evans argues that the factual narration in support of the search warrant was unsworn, producing a violation of the fourth amendment. He also contends that the informant was unreliable and that the warrant is otherwise inadequately supported. But he did not ask the district judge to suppress the evidence seized from the apartment. According to Fed.R.Crim.P. 12(b), "[t]he following must be raised prior to trial: ... (3) Motions to suppress evidence" (emphasis added). Rule 12(f) adds: "Failure by a party to raise defenses or objections or to make requests which must be made prior to trial ... shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver." To the extent Evans argues indirectly that the arrest was unlawful as the fruit of an invalid search of the apartment, he has the timing backward: the arrest preceded the search, and we agree with the district court's conclusion that the arrest was supported by probable cause. Any challenge to the use of the evidence seized from the apartment is barred by Rule 12(f) unless Evans can establish "cause" for relief from the waiver.

"Cause" is a more stringent requirement than the plain-error standard of Fed.R.Crim.P. 52(b). See United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). This case shows why it is important to make suppression motions in the district court: although the written factual narration is unsworn,...

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14 practice notes
  • A.M. v. Butler, No. 02-2882.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 2, 2004
    ...on the offending lawyer, including a public rebuke and fine. See, e.g., In re Galvan, 92 F.3d 582 (7th Cir.1996); United States v. Evans, 131 F.3d 1192 (7th Cir.1997). Although we will not dismiss this appeal, when we finish our work we will return to the question of an appropriate Finally,......
  • United States v. Mageno, No. 12–10474.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 11, 2014
    ...object to, or brief, those statements. This is the approach [762 F.3d 954]taken by some of our sister circuits. United States v. Evans, 131 F.3d 1192, 1193 (7th Cir.1997) (refusing to address an issue raised by defendant for the first time in a reply brief, because the defendant “may presen......
  • Kunz v. Defelice, No. 06-3827.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 14, 2008
    ...certify compliance under Circuit Rule 30(d). E.g., United States v. White, 472 F.3d 458, 465-66 (7th Cir.2006); United States v. Evans, 131 F.3d 1192 (7th Cir. 1997); In re Galvan, 92 F.3d 582 (7th Cir.1996)." 507 F.3d at 1096. We return to this topic at the end of the opinion. For now......
  • U.S. v. Suescun, No. 99-14311
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • January 8, 2001
    ...court may consider whether the defendant had cause to raise on appeal a defense waived under Rule 12(f). See United States v. Evans, 131 F.3d 1192, 1193 (7th Cir. 1997). Because Suescun has not asked us to grant him relief from his waivers, we do not have to decide whether we have the autho......
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14 cases
  • A.M. v. Butler, No. 02-2882.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 2, 2004
    ...on the offending lawyer, including a public rebuke and fine. See, e.g., In re Galvan, 92 F.3d 582 (7th Cir.1996); United States v. Evans, 131 F.3d 1192 (7th Cir.1997). Although we will not dismiss this appeal, when we finish our work we will return to the question of an appropriate Finally,......
  • United States v. Mageno, No. 12–10474.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 11, 2014
    ...object to, or brief, those statements. This is the approach [762 F.3d 954]taken by some of our sister circuits. United States v. Evans, 131 F.3d 1192, 1193 (7th Cir.1997) (refusing to address an issue raised by defendant for the first time in a reply brief, because the defendant “may presen......
  • Kunz v. Defelice, No. 06-3827.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 14, 2008
    ...certify compliance under Circuit Rule 30(d). E.g., United States v. White, 472 F.3d 458, 465-66 (7th Cir.2006); United States v. Evans, 131 F.3d 1192 (7th Cir. 1997); In re Galvan, 92 F.3d 582 (7th Cir.1996)." 507 F.3d at 1096. We return to this topic at the end of the opinion. For now, we ......
  • U.S. v. Suescun, No. 99-14311
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • January 8, 2001
    ...court may consider whether the defendant had cause to raise on appeal a defense waived under Rule 12(f). See United States v. Evans, 131 F.3d 1192, 1193 (7th Cir. 1997). Because Suescun has not asked us to grant him relief from his waivers, we do not have to decide whether we have the autho......
  • Request a trial to view additional results

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