{"id":6314,"date":"2012-01-19T18:20:23","date_gmt":"2011-11-26T00:24:00","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-11-25T13:48:41","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=6314","title":{"rendered":"CA10: If trial testimony affects the denied suppression motion, defendant must seek to reopen in trial"},"content":{"rendered":"

If trial testimony would potentially alter the outcome of a pretrial motion to suppress that was denied, the defendant has the burden to seek to reopen the suppression issue. Without it, the trial evidence cannot be considered. The issue in this case was apparent authority to consent, and the court did not have to decide actual authority if apparent authority exists. United States v. Bass<\/a>, 661 F.3d 1299 (10th Cir. 2011):<\/p>\n

Although Defendant raises some arguments based on evidence elicited at trial, we will consider only the evidence before the district court at the suppression hearing. Because \u201cthe district court should have the first opportunity to correct its mistake,\u201d we ordinarily \u201cwill not consider trial evidence which undermines a district court decision rendered at a pretrial suppression hearing.\u201d United States v. Parra, 2 F.3d 1058, 1065 (10th Cir. 1993). The district court may consider trial testimony if the defendant renews the suppression motion at trial, see id., but the court ordinarily need not do so if counsel fails to alert the court to how the evidence has been altered or supplemented at trial and why the change would affect the ruling. Absent exceptional circumstances that would justify relief for plain error, the court has no responsibility on its own to compare trial evidence with the evidence at the hearing and then analyze whether its prior ruling should stand. See id.; United States v. Humphrey, 208 F.3d 1190, 1204 (10th Cir. 2000) (if trial testimony would support a different legal justification for suppressing evidence, the defendant must inform the trial court of that new justification in renewing suppression motion at trial); cf. United States v. Burke, 633 F.3d 984, 987-88 (10th Cir. 2011) (failure to include a particular argument in a pretrial suppression motion waives the argument on appeal); Sorensen v. City of Aurora, 984 F.2d 349, 355 (10th Cir. 1993) (failure to raise specific objection to district court’s exclusion of evidence precluded review on appeal).<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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