"Waiver" of an Argument Easily Occurs, Hard to Overcome

United States v. Fernandez, 20 F.4th 1298 (10th Cir. 2021): The panel’s decision illustrates how broadly and exacting 'waiver' is interpreted. When officers first boarded a Greyhound bus in Albuquerque it was empty for a brief layover. In a nonpublic area and, with no one watching, one officer pulled Fernandez’s bag off the rack and held it “for 30 seconds” to gauge how “heavy it was” and to “observe all sides” before passing it to another officer to do the same. Because the officers testified by handling the bag they could glean its apparent contents, Fernandez argued they illegally searched it. He asked the court to suppress the methamphetamine they later found inside. The district court denied Fernandez’s request. In its view, the officers had not searched the bag because neither “squeezed or manipulated the bag.” It also said the officers’ handling of the bag was no different from what one could reasonably expect from another passenger: it would not be unusual for passengers to “push, move, and even momentarily remove an item from a common luggage area” to make room for their own bag. On appeal, Fernandez again argued that the officers’ handling of his bag went beyond how one would reasonably expect another to interact with his bag. In his argument he emphasized the aggregate circumstances had to be considered which included that the officers were alone on the bus and that each examined the bag in their hands for at least 30 seconds. [NOTE: the government solicited from the officers that each held the bag for at least 30 seconds. And the court solicited from them that they were alone on the bus.] The panel declined to address the issue because it said was waived. During argument in the district court, Fernandez did not stress the time in which the officers held the bag. Because he made the time a component of his argument on appeal, he waived the argument. The panel said, "there was no reason to believe that the court was even thinking about how long the officers held the bag . . . " [Apparently, how long they held the bag was not part of the 'totality of the circumstances' the court considered in its deliberations.] Given the circuit's unfortunate precedent, United States v. Bowline, 917 F.3d 1227 (10th Cir. 2019), plain error review does not apply. Besides said the panel, Fernandez did not ask for plain error review. [NOTE: The fact that Fernandez did argue the court should review for plain error, if it believed the government’s waiver argument, did not matter to the panel. There is an entrenched circuit split on whether plain error review is available for issues deemed 'waived.'] Fernandez also argued that he did not abandon his bag when he answered ‘no’ to the officer’s question, 'do you have luggage on the bus with us?' To begin with, his answer was not untruthful, because ‘luggage’ as it is commonly understood means suitcase. Fernandez had only a small travel bag. Additionally, the officer’s question was not specific enough for him to have renounced his property and privacy rights in the bag. In Byrd v. United States, the Court emphasized that lawful possession is characterized primarily by “the right to exclude others.” 138 S.Ct. at 1527. Fernandez still retained a superior property right in the bag and at any point before the officer grabbed the bag, Fernandez could have gotten up and taken it to his seat. The panel was unmoved. It said none of its prior decisions require a more specific question than the one asked here. The officer asked Fernandez repeatedly if he had any luggage and he answered no each time. According to the panel, Fernandez abandoned the bag. Regarding Fernandez’s argument that the district court should have questioned the officer in camera regarding his informants at Greyhound, the panel said the court’s ruling was correct. It did not matter to the panel that the district court sustained the government’s privilege objection when Fernandez asked whether the officer paid the informants. Nothing in the record showed that Fernandez could not have asked the officer questions about his informers’ duties. Besides Fernandez could not prove the officer’s informants were the reason that Greyhound did not produce video from the restricted areas in which the officers boarded the bus to ‘pre-search’ luggage.