CA9: Govt didn’t waive argument by not filing written response to motion to suppress where it came up at the suppression hearing

Defendant filed a motion to suppress and the government didn’t respond in writing, but it did respond at the suppression hearing. The government did not waive its automobile exception argument, and it was squarely before the district court by defendant’s own submission and the arguments of the parties before the USMJ. The district court erred in finding the automobile exception did not apply. United States v. Scott, 705 F.3d 410 (9th Cir. 2012):

B. The Government Has Not Waived Its Automobile Exception Argument

Under Federal Rule of Criminal Procedure 12(e), “[a] party waives any Rule 12(b)(3) defense, objection, or request not raised by the deadline the court sets under Rule 12(c) or by any extension the court provides.” Fed. R. Crim. P. 12(e). Raising a theory to the magistrate judge “during the evidentiary hearing on the motion to suppress” preserves that theory for appeal. United States v. Sparks, 265 F.3d 825, 830 n.1 (9th Cir. 2001), overruled on other grounds by United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc). In Sparks, although the defendant did not raise the argument specifically to the district court, it was sufficient that the defendant “raised the issue to the magistrate judge and engaged him in a colloquy about the theory.” Id. Because the defendant “placed the issue in the record, the district court had the opportunity to consider and decide this claim.” Id. Even where a waiver argument may be available, [w]hen a court rules on the merits of an untimely suppression motion, it implicitly concludes that there is adequate cause to grant relief from a waiver of the right to seek suppression.” United States v. Vasquez, 858 F.2d 1387, 1389 (9th Cir. 1988). In order to “rule[] on the merits,” the district court must not merely rule on whether good cause for relief from waiver has been made; it must determine whether “seized evidence should have been suppressed.” United States v. Tekle, 329 F.3d 1108, 1112 (9th Cir. 2003).

In the present case, as in Sparks, the government raised its automobile exception argument to the magistrate judge during the evidentiary hearing on the motion to suppress. Because the government raised the automobile exception both orally and in its filed objections to the magistrate judge’s report and recommendation, the “district court had the opportunity to consider and decide the claim.” Sparks, 265 F.3d at 830 n.1 (noting that Sparks’ argument was preserved despite the fact that it was only raised orally). Moreover, even if Sparks were not applicable, the magistrate judge’s Report and Recommendations implicitly forgives any waiver that may have occurred by reaching the merits of the government’s allegedly untimely objection to the suppression motion, finding that “the inventory search was a ruse” and therefore that “[n]o warrant exception applies here.” Therefore, under Vasquez and Tekle, the magistrate judge’s Report—adopted by the district court—implicitly concludes either that there was no waiver, or that “there is adequate cause to grant relief from” any waiver that may have occurred. Vasquez, 858 F.2d at 1389. Because it cannot be that the government’s automobile exception argument, but not its simultaneously-raised inventory search argument, was waived, we conclude that the government has not forfeited its automobile exception argument or, alternatively, that its forfeiture was excused.¹

1 We do not, however, in any way condone the government’s policy of deliberately disregarding the filing deadlines to incorporate facts raised during the hearing into its briefs. As the magistrate judge noted, filing deadlines serve an important judicial function, and permitting this sort of strategic disrespect for the rules will disadvantage both defendants and the court.