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CA5: Defendant did not waive suppression issue where he did not have all the facts on it until trial

By John Wesley Hall, Jr.

Defendant did not waive his suppression issue where the facts were not available to the defense before evidence developed at trial. He loses on the merits, however. United States v. Moody, 2009 U.S. App. LEXIS 7166 (5th Cir. April 6, 2009): For two reasons, Hines has not waived the issue for appeal. First, the government never argued that he waived the issue, so the government has waived its potential waiver argument. Second, in advance of trial the government misstated which police officer had searched Hines's car, information that was necessary for the pre-trial suppression motion. After defense counsel recognized that error, the court held a full suppression hearing outside the jury's presence. Therefore, because Hines did not have all the necessary information, and the issue was eventually fully litigated, the suppression issue was not waived...continue to full post

Full post as published by Fourth Amendment on April 10, 2009 (boomark / email).