Friday, October 30, 2009

Tenth Addresses Issues of Waiver, Affirms Denial of Suppression Motion

U.S. v. White, 2009 WL 3381528 (10/22/09) (Published) - One defendant signed an appeal waiver that waived any suppression arguments except those raised below. Troublingly, the other defendant waived arguments not raised below because Rule 12(b)(3)(C) says a party who fails to raise an issue regarding a motion to suppress waives that issue. It was not clearly erroneous for the d.ct. to find that the officer had reasonable suspicion to believe the defendant pulled into the lane an unsafe distance ahead of a car in the same lane. Troublingly, the S. Ct. has clearly held "reasonable suspicion" is ultimately a question of law subject to de novo review. See Ornelas v. U.S., 517 U.S. 690 (1996). There was reasonable suspicion to continue the defendants' detention beyond what was necessary to issue the citation based on (1) the defendants' "unusual" nervousness; (2) their improbable travel plans [they had flown to Vegas, spent 4 days there, were driving to Indianapolis so one of them could go to work on Oct. 3 and then they were returning to Vegas on Oct. 4]; (3) one of the defendants had two prior drug-related incidents ["criminal history contributes powerfully"]; and (4) they were coming from a source city and going to a well-known destination point [of minimal significance]. Requiring the suspects to drive the car to the police station parking lot 10 minutes away for a dog sniff in the direction they had been traveling did not constitute an arrest requiring probable cause. The required drive was not highly intrusive and was done for the defendants' convenience.