United States v. Lomando Scott
2012 U.S. App. LEXIS 24232
| 9th Cir. | 2012Background
- Constable executing writ at Scott's North Las Vegas residence smelled marijuana and observed Scott stuffing cash into plastic bags.
- Officers arrested Scott after a background check revealed prior drug/gun felonies and address registration violations; searches of person and residence revealed cash and drugs.
- Scott had moved items between the house and his car prior to arrest; a dog sniff did not indicate drugs in the car, yet the car was searched.
- A handgun and about 250 grams of cocaine base were found in the car during the warrantless search.
- Scott was indicted on drug distribution and firearm charges; he moved to suppress the car seizure evidence, arguing Fourth Amendment violation.
- The magistrate judge denied relief for untimely government briefing and suggested suppression; district court adopted the report and granted suppression; the government appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver claim on government’s failure to timely brief | Scott argues government waiver of arguments is timely and valid. | Government contends waiver or forfeiture rules apply; not waived here. | Government arguments preserved; not waived. |
| Whether the government waived its automobile exception argument | Scott argues the automobile exception argument was not properly raised in writing and thus waived. | Government asserts it raised the automobile exception at the hearing and in objections, preserving the argument. | Automobile exception argument preserved. |
| Whether the warrantless search of the car was permissible under the automobile exception | Scott contends lack of warrant invalidates the search. | Government asserts probable cause and mobility justify the automobile exception. | Search permissible under the automobile exception; suppression denied. |
Key Cases Cited
- United States v. Mendoza-Ortiz, 262 F.3d 882 (9th Cir. 2001) (mixed question of law and fact on search/seizure)
- United States v. Olano, 507 U.S. 725 (Supreme Court 1993) (defining waiver vs forfeiture)
- United States v. Castillo, 496 F.3d 947 (9th Cir. 2007) (en banc discussion of waiver/forfeiture context)
- United States v. Sparks, 265 F.3d 825 (9th Cir. 2001) (preservation of arguments raised to magistrate judge)
- United States v. Vasquez, 858 F.2d 1389 (9th Cir. 1988) (adequate cause to relieve waiver)
- United States v. Tekle, 329 F.3d 1108 (9th Cir. 2003) (merits-based ruling can excuse waiver)
- California v. Carney, 471 U.S. 386 (Supreme Court 1985) (automobile exception rationale based on mobility)
- United States v. Hawkins, 249 F.3d 867 (9th Cir. 2001) (probable cause for vehicle search; mobility considerations)
- United States v. Davis, 530 F.3d 1069 (9th Cir. 2008) (upholding search of legally parked car after arrest)
- United States v. Hatley, 15 F.3d 856 (9th Cir. 1994) (vehicle search following arrest)