CA5: Defendant did not waive suppression issue where he did not have all the facts on it until trial

Defendant did not waive his suppression issue where the facts were not available to the defense before evidence developed at trial. He loses on the merits, however. United States v. Moody, 2009 U.S. App. LEXIS 7166 (5th Cir. April 6, 2009):

For two reasons, Hines has not waived the issue for appeal. First, the government never argued that he waived the issue, so the government has waived its potential waiver argument. Second, in advance of trial the government misstated which police officer had searched Hines’s car, information that was necessary for the pre-trial suppression motion. After defense counsel recognized that error, the court held a full suppression hearing outside the jury’s presence. Therefore, because Hines did not have all the necessary information, and the issue was eventually fully litigated, the suppression issue was not waived.

Defendant well knew at the time he wrote his own consent form that his computer was subject to being forensically examined with software to recover deleted files which he told the officers was on his computer. After the seizure by consent, a search warrant was obtained for the computer. United States v. Luken, 560 F.3d 741 (8th Cir. 2009).*

Officers on the premises with a search warrant for drugs could properly seize evidence of a robbery because it was evidence in plain view. Items with latent prints were properly seized. United States v. Rose, 321 Fed. Appx. 324 (4th Cir. 2009) (unpublished). (Note: For those of you who have argued lack of fingerprinting of a CD was significant, here a latent was recovered from a CD.)