Tenth Reverses Earlier Decision on Late Filing of Notice of Appeal; Affirms Lawfulness of Truck Search

U.S. v. Mitchell, 2008 WL 542130 (2/29/08) (Published) - After getting a remand from the Supreme Court, the defendant wins the jurisdictional battle, but loses the suppression war. The 10th Circuit follows the recent holding in U.S. v. Garduno, 506 F.3d 1287 (10th Cir. 2007), that the notice-of-appeal time limit rule is a claim-processing rule, not a jurisdictional rule. So, the government, as here, can forfeit its right to enforcement of that rule, if it doesn't argue the district court wrongly granted an extension of time to appeal. After much discussion, the 10th holds that it can sua sponte raise the time limit issue. This is so because the rule serves societal and judicial administration interests, such as finality, that are not just the interests of the parties. But, ordinarily the 10th should rely on the adversary to raise the time bar and only rarely invoke the rule itself. It should not be invoked, where, as here, judicial resources are not implicated and the delay has not been inordinate [here, one day].

Dissenting Judge Lucero maintains that the 10th should almost always invoke the time bar, absent extraordinary circumstances, because otherwise parties would be ignoring the time limits willy nilly.

With respect to the merits, the 10th applies its prior holding in U.S. v. Vasquez-Castillo, 258 F.3d 1207 (10th Cir. 2001), that New Mexico's regulatory scheme allowing for inspections of commercial trucks at port of entries is constitutional. That holding is a legal holding that does not vary with the facts of any particular case. The officers had the right to inspect the defendant's truck trailer, even though he told them he had no cargo.