concurring:

I concur in the result reached by the majority.

I am confident that were the issue before the district judge on proper evidence, he would find that the California Highway Patrol truck scales are part of the San Clemente fixed checkpoint. I am even more confident that we would affirm that determination on appeal. However, the issue was not presented to the district judge. As the majority observes, United States v. Patrin, 575 F.2d 708, 712 (9th Cir. 1978), recognizes only a narrow exception to the general principle that federal appellate courts do not consider an issue not passed upon in the trial court. Ante at 832.

United States v. Patrin, supra, 575 F.2d at 712 (citations omitted). I do not find that this issue comes within that narrow exception. 1

In holding that the scales are part of the fixed checkpoint stop as a “matter of law,” the majority relies on facts in the record. Ante at 832. A holding relying on facts in the record falls within the Patrin exception only if the record has been fully developed. I am not convinced that the record has been so developed or that there could be no prejudice to Gabriel and Palmer by considering this issue first on appeal. Because the issue was not raised in the district court, they did not have reason to attempt to rebut the evidence relied upon by the majority. Certainly Gabriel and Palmer are not required to anticipate and lay a factual foundation to counter every possible issue a prosecutor could raise on appeal. While they were clearly not prejudiced by the introduction of the evidence upon which the majority relies, they may have been prejudiced by the fact that they did not introduce evidence to rebut the fixed checkpoint theory at the suppression hearing.

Even if the record were fully developed and there were no prejudice to Gabriel and Palmer, the consideration of the new theory on appeal is discretionary. Where, as here, the government offers no reason for not raising the issue in the district court, I would not exercise this court’s discretion to consider it on appeal.

Although I would not consider the fixed checkpoint issue, I come to the result reached by the majority in this case. The finding of founded suspicion by the district judge is obvious as to Gabriel, and I conclude that it was not clearly erroneous as to Palmer. See United States v. Cortez, 595 F.2d 505, 507 (9th Cir. 1979), cert. grant.-U.S.-, 100 S.Ct. 2983 , 65 L.Ed.2d-.

. Nor is the issue (1) one recently come to light during the pendency of the appeal because of an interim change in the law, United States v. Patrin, 575 F.2d 708, 712 ; (2) jurisdictional, In re U. S. Financial, Inc., 594 F.2d 1275, 1282 (9th Cir. 1979); (3) one which will result in a manifest miscarriage of justice if review is not granted, Roberson v. United States, 382 F.2d 714 , 718 n.2 (9th Cir. 1967); or (4) a significant question of general importance, Krause v. Sacramento Inn, 479 F.2d 988, 989 (9th Cir. 1973).