{"id":4380,"date":"2010-12-29T07:29:30","date_gmt":"2010-07-02T06:14:24","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-07-02T06:14:24","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4380","title":{"rendered":"CA8: On remand, the gov’t can raise independent source for the first time"},"content":{"rendered":"

USMJ\u2019s findings that the officers would have applied for a search warrant other than finding drug ledgers taped to the wall of the defendant\u2019s premises was supported by the evidence. This was on remand, and the government was free to raise the independent source doctrine for the first time on remand. United States v. Castellanos<\/a>, 608 F.3d 1010 (8th Cir. 2010)*:<\/p>\n

Although parties should present alternative arguments whenever sound strategy dictates, the government in this case was not required to anticipate every possible outcome on appeal and formulate a responsive argument for each alternative. “[T]he principle that a party who failed to raise an argument in its initial appeal is held to have waived its right to raise that argument on remand or on a second appeal. … must be limited to issues appropriate to be raised on appeal.” Robinson v. Johnson, 313 F.3d 128, 141 n.5 (3d Cir. 2002). “It does not require a party to raise an issue that had not been previously treated or even raised in the district court.” Id. “Issues that arise anew on remand are generally within the scope of the remand.” Husband, 312 F.3d at 251 n.4; ….<\/p>\n

Under the facts of this case, the application of the independent source doctrine was an argument arising for the first time on remand. … In Castellanos I, we explicitly directed the district court to engage in further proceedings consistent with our opinion. Implicit in that order was an expectation that the district court would consider arguments raised by both parties as to how the exclusion of the information obtained during the illegal search of the bedroom would impact the validity of the search warrant. The government raised the independent source doctrine at the earliest practicable time, and did not waive the application of the independent source doctrine on remand. The district court did not err in relying upon the independent source doctrine when denying Castellanos’s supplemental motion to suppress.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-4380","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/4380","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=4380"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/4380\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=4380"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=4380"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=4380"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}