Thursday, October 26, 2006

Failure to Raise Particular Argument for Inapplicability of Good Faith Exception Constitutes Waiver of that Specific Argument

United States v. Pope, No. 04-51008 (5th Cir. Oct. 17, 2006) (Jolly, Wiener, Dennis)

This is the second opinion in this case, which involves an appeal from the district court's denial of Pope's motion to suppress evidence obtained during the execution of two separate search warrants at her home. The pivotal issue is the applicability of the Leon good faith exception to the first warrant. (The second warrant was based on information obtained during the execution of the first one.)

The first time around, the court of appeals agreed with Pope that the good faith exception did not apply because the supporting affidavit was recklessly false. See 452 F.3d 338. That holding drew a sharp dissent, which accused the panel majority of taking liberties with, misrepresenting, and exaggerating the record to make a factual finding on an issue that the district court never even considered. (The majority disputed that, of course.)

The panel reconsidered the case sua sponte, and now holds that Pope waived the argument regarding reckless falsehood by not raising it in the district court. The court observed that Leon identified four situations in which the good faith exception would not apply (exceptions to the exception, if you will). The court concludes that Pope only argued for one of them in the district court, and it was not the one on which the first opinion granted relief (she argued that there was no objectively reasonable reliance on the warrant, rather than reckless falsehood in the supporting affidavit). The court holds that even though Pope moved to supress evidence and disputed the applicability of the good faith exception, she waived the specific argument on which she relied on appeal (reckless falsehood) by not raising that specific argument in the district court. It further held that the good faith exception did apply because the officer's reliance on the warrant was objectively reasonable.

To state the court's waiver holding another way, there are four exceptions to the Leon good faith exception: A, B, C, D. Pope only argued A in the district court, but she argued both A and B on appeal. Because Pope did not argue B in the district court, she waived that argument and the court of appeals could not consider it. (The court also held that even if the failure to raise the argument was treated as a forfeiture rather than a waiver, it wouldn't constitute plain error.) And A didn't apply.


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