United States v. Bruce A. Mulder

We set forth the facts of this novel and unique matter in United States v. Mulder, 808 F.2d 1346, 1347-49 (9th Cir.1987). On the basis of probable cause developed prior to and independently of the first unlawful testing, a warrant was applied for and obtained in February 1988 permitting a chemical test of the tablets found in Mulder’s suitcase. Mulder appeals the denial of his motion to suppress the results of the second test.

DISCUSSION

I. WAIVER

Mulder argues for the first time on appeal that the affidavit supporting the request for a search warrant was prejudicial because it informed the magistrate of the results of the earlier warrantless testing and of our decision in Mulder I. Under most circumstances, a failure to raise a particular ground in a motion to suppress before trial constitutes waiver, in the absence of “cause shown.” United States v. Restrepo-Rua, 815 F.2d 1327, 1329 (9th Cir.1987). See also United States v. Houser, 804 F.2d 565, 570 (9th Cir.1986) (evidentiary questions cannot be raised for the first time on appeal in the absence of plain error). Although Mulder failed to raise these exact grounds before the district court, his claims are not waived because…