United States v. Lomando Scott

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…

Opinion by Judge BYBEE; Concurrence by Judge RAWLINSON.

OPINION

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,…

concurring:

I concur in the result reached by the majority because, and only because, neither the magistrate judge nor the district court judge made a finding that the government had waived its arguments regarding exceptions to the Fourth Amendment warrant requirement. See Taylor v. United States, 821 F.2d 1428, 1433 (9th Cir.1987) (observing that whether waiver of an issue has occurred “is a question of federal law under the Federal Rules of Civil Procedure”). Had either the magistrate judge or the district court judge found a waiver of the government’s arguments, we would be hard pressed to disagree. See, e.g., United States v. Helbling, 209 F.3d 226, 237 (3d Cir.2000) (addressing the waiver of the applicable statute of limitations and relying on the findings made by the district court); North Am. Specialty Ins. Co. v. Debis Fin. Servs., Inc., 513 F.3d 466, 470 (5th Cir.2007) (affirming the district court’s finding that the insurer waived “the defense of unseaworthiness”). The only difference between those cases and this case is that the trial court in those cases made a finding of waiver. The government has dodged a bullet.