United States v. Jorge Juan Restrepo-Rua
815 F.2d 1327
9th Cir.
1987
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UNITED STATES of America, Plaintiff-Appellee, v. Jorge Juan RESTREPO-RUA, Defendant-Appellant.

No. 85-5200.

United States Court of Appeals, Ninth Circuit.

Decided April 30, 1987.

Submitted April 6, 1987.*

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perhaps irreparable consequences; and (3) is the order one that can be effectively challenged only by immediate appeal? The Ninth Circuit adopted this test in

.

, examined the State of Louisiana‘s compliance with a 1976 injunctive court order protecting the rights of mentally retarded, emotionally disturbed, and other handicapped children.
. In 1978 the district court appointed a special master to monitor compliance with the 1976 order; on appeal, the Fifth Circuit held that the interlocutory appointment of a special master was a modification of an injunction under section 1292(a)(1) and therefore appealable.
.

We agree with the Fifth Circuit to the extent that jurisdictional analysis under section 1292(a)(1) should focus on whether the interlocutory order appointing a special master “modifies” the consent decree. The inmates, however, argue that

is distinguishable and not controlling here. In
the district court had previously been requested to appoint a special master as part of the injunction and refused to do so.
Here, neither side raised the issue of a special master in shaping the consent decree. We find the decree implicitly contemplates appointment of a master by retaining authority to “establish procedures” for its compliance. Therefore, unlike
, appointment of the Monitor here is pursuant to, and not a modification of, the original consent decree. The appointing order appealed from does not have the practical effect of the grant or denial of an injunction.

Carson also requires a showing of serious and irreparable harm from the interlocutory order and a showing of no other opportunity for its effective appeal. Here, the Warden made no showing of serious or irreparable harm from the interim appointment of a master. In addition, the Warden has not shown that the appointment of a special master cannot be effectively reviewed when the district court decides whether to adopt the Monitor‘s recommendations.8

Furthermore, the congressional policy against piecemeal appeals is best served by deferring review.

. Appointment of the Monitor facilitates pretrial procedure and our review of the matter at this time would be premature. See

CONCLUSION

The requirements of section 1292(a)(1) have not been met and we find that this court has no jurisdiction to hear the merits of this appeal.

DISMISSED.

Reinhardt, Circuit Judge, filed specially concurring opinion.

James McGinnis, Los Angeles, Cal., for plaintiff-appellee.

Joseph Milchen, San Diego, Cal., for defendant-appellant.

Before ANDERSON, SKOPIL and REINHARDT, Circuit Judges.

PER CURIAM:

Jorge Juan Restrepo-Rua appeals his conviction of possession of cocaine with intent to distribute. 21 U.S.C. § 841(a)(1). Restrepo-Rua was arrested after agents for the Drug Enforcement Administration (DEA) found cocaine and guns in his bedroom pursuant to a search warrant. During the search, DEA agents arrested Jose Restrepo-Rua, Jorge‘s brother, with the aid of a police dog.

Prior to trial, Restrepo-Rua moved to suppress the evidence obtained from the search. The sole basis for defendant‘s motion was that the warrant did not set forth sufficient facts to establish probable cause. The district judge denied the motion. After trial, Restrepo-Rua‘s counsel moved to reopen the suppression hearing, asserting the new ground that the presence of the dog had rendered the search unreasonable. The judge denied this motion as well.

On appeal, Restrepo-Rua contends that the search was “unreasonable” because DEA agents used a police dog. See

(Reinhardt, J., concurring) as amended,
. He states that his brother was attacked and seriously bitten by the dog. The government‘s response is limited to its observation that the “dog was not used to sniff narcotics ... [but] was only used to help secure the arrest of the defendants.”

We do not reach the issue whether the presence of a dog renders a search constitutionally defective, because we determine that Restrepo-Rua waived that issue. Fed.R.Crim.P. 12(b)(3) requires that motions to suppress evidence be made before trial. A failure to raise an objection until after trial constitutes a waiver of the objection. Fed.R.Crim.P. 12(f). See also

. Just as a failure to file a timely motion to suppress evidence constitutes a waiver, so too does a failure to raise a particular ground in support of a motion to suppress. Here, Restrepo-Rua tried to reopen the suppression hearing after the trial was concluded. Not until after he had been convicted did he raise the argument that the use of a dog renders a search unreasonable. In fact, it was only then that he advised the court that a police dog had participated in any way in the search or arrest. Restrepo-Rua‘s failure to raise the police dog issue in a timely manner serves to waive that ground for objection. It is true that the court may in its discretion grant relief from waiver for “cause shown.”
. Here, however, no valid cause has been shown.

Restrepo-Rua also contends that he was denied his Sixth Amendment right to effective assistance of counsel. The record in the trial court, and the record before us, is not adequate to permit us to resolve the question on direct review. Accordingly, we must reject the claim.

cert. denied,
. We do note that Restrepo-Rua remains free to assert his ineffective assistance claim, and to make a proper record, in a proceeding under 28 U.S.C. § 2255. See
.

Finally, Restrepo-Rua contends that there was no probable cause to search his residence and that the failure of the trial court to sever sua sponte the gun count from the narcotics count was error. We find these contentions without merit. There was adequate probable cause for the search. The failure to sever was non-prejudicial. We note that the guns would, in any event, have been admissible into evidence. See

, cert. denied,
. Accordingly, the judgment of the district court is AFFIRMED.

REINHARDT, Circuit Judge, concurring specially:

For the reasons set forth in our per curiam opinion, I concur. I write separately only to emphasize my belief that the use of police dogs in homes is unreasonable and thus unconstitutional. See

(Reinhardt, J., concurring). The government appears to argue that the dog did not participate in the search, but only in the arrest. The use of dogs to arrest suspects in their homes is even worse than the use of dogs to conduct searches of people‘s homes. I think that we should note our strong disapproval of such practices whenever we have the opportunity to do so. I do so here once again.

Notes

8
The Monitor‘s report does not automatically become a final decision of the district court. Rather, the report may be adopted, rejected, or modified.

IT IS FURTHER HEREBY ORDERED that any report of the Monitor shall be adopted as the findings of fact and conclusions of law of the Court unless, within ten days after being served with notice of the filing of the report, either side moves to reject or modify the report. The Court will entertain no objection to any report unless it is shown as a preliminary matter that an identical objection was submitted to the Monitor in the form of a specific written objection in accordance with the preceding paragraph of this Order. In accordance with Federal Rule of Civil Procedure 53(e)(2), the Court shall accept the Monitor‘s findings of fact unless clearly erroneous. Order of Reference at 3-4.

*
The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 3(f) and Fed.R.App.P. 34(a).