United States v. Smith

MEMORANDUM **

Appellant Kenneth Smith (“Smith”) seeks review of an issue that he did not *119 raise in the district court: whether California Vehicle Code Section 12801.5(e) renders his arrest unlawful. If the arrest was unlawful, the parties concede that the search incident to the arrest that led to the discovery of a firearm in Smith’s possession was also unlawful, and that Smith would not have pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. § 922 (g)(1).

Section 12801.5(e) provides in relevant part that “a peace officer may not detain or arrest a person solely on the belief that the person is an unlicensed driver.” Cal. Veh.Code § 12801.5(e). Smith contends that he was arrested solely because he was an unlicensed driver, and that his arrest was therefore unlawful. The government argues that the police did not arrest Smith solely because he was unlicensed, and also that section 12801.5(e) is not relevant to whether Smith’s arrest violated the Fourth Amendment.

The parties raised none of these arguments in the district court and ask us to review the district court decision for plain error. We decline to do so. Because Smith never argued the…