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Tenth Addresses Issues of Waiver, Affirms Denial of Suppression Motion

By Shari Allison

U.S. v. White, 2009 WL 3381528 (10/22/09) (Published) - One defendant signed an appeal waiver that waived any suppression arguments except those raised below. Troublingly, the other defendant waived arguments not raised below because Rule 12(b)(3)(C) says a party who fails to raise an issue regarding a motion to suppress waives that issue. It was not clearly erroneous for the d.ct. to find that the officer had reasonable suspicion to believe the defendant pulled into the lane an unsafe distance ahead of a car in the same lane. Troublingly, the S. Ct. has clearly held "reasonable suspicion" is ultimately a question of law subject to de novo review. See Ornelas v. U.S., 517 U.S. 690 (1996). There was reasonable suspicion to continue the defendants' detention beyond what was necessary to issue the citation based on (1) the defendants' "unusual" nervousness; (2) their improbable travel plans [they had flown to Vegas, spent 4 days there, were driving to Indianapolis so one of them could go to work on Oct...continue to full post

Full post as published by Tenth Circuit Blog on October 30, 2009 (boomark / email).