Feds Flubbed but Won’t Lose Seized Gun & Drugs

(CN) - A federal judge improperly excluded evidence of the gun and cocaine found in a man's car after police already found drugs in the house, the 9th Circuit ruled.

Police in North Las Vegas arrested Lomando Scott, a convicted felon, in 2010 after a constable smelled marijuana and noticed a lot of cash in his house while serving a writ of execution. Investigators found $10,000 in Scott's pockets, and there were drugs in the house.

In their subsequent search of Scott's car, parked in front of the house, police found a Glock handgun and more drugs.

Scott moved to suppress the evidence seized from his car, arguing that the search was illegal.

Prosecutors failed to file a proper written response to Scott's motion, but they staked their ground during oral argument before a magistrate judge. At the hearing, the government said that the automobile exception gave police probable cause to search the car.

"Under the automobile exception to the warrant requirement, police may conduct a warrantless search of a vehicle if there is probable cause to believe that the vehicle contains evidence of a crime," according to precedent.

Finding this inadequate, the magistrate recommended granting Scott's motion and striking the government's arguments as untimely. A federal judge subsequently adopted that recommendation.

The 9th Circuit reversed Monday, finding that the government had done enough to defeat the motion, despite its failure to file an initial written response.

"In the present case ... the government raised its automobile exception argument to the magistrate judge during the evidentiary hearing on the motion to suppress," Judge Jay Bybee wrote for a three-member panel. "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.' 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."

He added: "Moreover, because the police had probable cause to suspect that evidence of a crime would be found in Scott's car, which had the potential for mobility and was being used as a licensed motor vehicle, we hold that the government's warrantless search of Scott's car was permissible under the automobile exception to the warrant requirement. Scott's motion to suppress should not have been granted."

Concurring, Judge Rawlinson pointed out that prosecutors got a bit of a break in the case.

"Had either the magistrate judge or the District Court judge found a waiver of the government's arguments, we would be hard pressed to disagree," he wrote. "The government has dodged a bullet."

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