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United States of America v. Lomando Mark Scott

November 26, 2012

UNITED STATES OF AMERICA, PLAINTIFF - APPELLANT,
v.
LOMANDO MARK SCOTT, DEFENDANT - APPELLEE.



Appeal from the United States District Court for the District of Nevada Philip M. Pro, District Judge, Presiding D.C. No. 2:10-cr-00430-PMP-RJJ-1

The opinion of the court was delivered by: Bybee, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted September 11, 2012--Las Vegas, Nevada

Before: Morris S. Arnold , Johnnie B. Rawlinson,*fn1 and Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee; Concurrence by Judge Rawlinson

SUMMARY*fn2

Criminal Law

The panel reversed the district court's order suppressing evidence discovered in a warrantless search of the defendant's car.

The panel held that the defendant did not waive or forfeit his argument that the government waived its own argument that the search was permissible under the automobile exception to the warrant requirement. The panel also held that the government did not waive its automobile exception argument.

The panel held that because the police had probable cause to suspect that evidence of a crime would be found in the defendant's car, which had the potential for mobility and was being used as a licensed motor vehicle, the government's warrantless search of the defendant's car was permissible under the automobile exception.

Judge Rawlinson concurred in the result because, and only because, neither the magistrate judge nor the district court judge made a finding that the government had waived its arguments regarding exceptions to the Fourth Amendment warrant requirement.

OPINION

Defendant Lomando Scott was arrested and charged with possession of a controlled substance and a firearm. Scott moved to suppress evidence of these crimes that was discovered in the subsequent warrantless search of his car. After the government failed to file a timely written response to Scott's motion to suppress, raising its substantive arguments for the first time orally during the suppression hearing, the magistrate judge recommended that Scott's motion to suppress be granted. The government again asserted that the search was permissible under the automobile exception to the warrant requirement in its filed objections to the magistrate judge's Report and Recommendation. Nevertheless, the district court adopted the magistrate judge's Report without further comment and granted Scott's motion to suppress. The issues for review are ...


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