When the government objects to a Magistrate Judge’s R&R, it cannot raise new issues; here, standing. United States v. Turvin, 2006 U.S. Dist. LEXIS 75579 (D. Alaska July 18, 2006):<\/p>\n
The government argues in its objections for the first time that Cunningham lacks standing to object to the suppression of evidence. It is undisputed that the truck was being driven by Turvin, and Cunningham was a passenger. The government argues that Cunningham lacked a reasonable expectation of privacy in the vehicle to make a Fourth Amendment challenge to the search of the truck. The government offers no authority permitting it to raise a legal argument for the first time in objections to the Recommendation. The government filed a written opposition to the motion to suppress and did not oppose the joinder by defendant Cunningham. The government did not raise standing before or during the presentation of evidence at the suppression hearing. Nor did the government argue standing in its summation after the evidence was closed. Legal arguments not made when the issue is presented are waived in the absence of extraordinary circumstances which are not here alleged. An argument based on standing is not jurisdictional and may be waived. United States v. Deluca,<\/em> 269 F.3d 1128, 1135 (10th Cir. 2001).<\/p><\/blockquote>\n
Defendant failed to show he had standing in a vehicle search just because he had the keys to another’s car, but he still had standing to challenge the stop and subsequent detention. Here, the stop was valid for an obscured temporary tag, and defendant was extremely nervous and the odor of fabric softener was strong. The videotape showed that the conversation was normal, but it did not show defendant nodding his head in agreement. Since defendant did not testify, the court credits the officer’s testimony that consent was valid. A defendant’s affidavit alone is not enough because it avoids cross-examination. United States v. Nazario-Rivera, 2006 U.S. Dist. LEXIS 75578 (D. Kan. October 17, 2006).<\/p>\n","protected":false},"excerpt":{"rendered":"
b2evGMco.b2evALnk.b2WPAutP.b2evSmil Continue reading