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CA10: Waiver of probable cause for issuance of warrant issue in the district court not subject to plain error appellate review

By John Wesley Hall, Jr.

Defendant’s waiver of probable cause for issuance of warrant issue in the district court not subject to plain error appellate review. United States v. Burke, 2011 U.S. App. LEXIS 2082 (10th Cir. February 2, 2011): Burke filed a timely pretrial motion to suppress evidence, and the district court held an evidentiary hearing before denying the motion. The briefs and the oral arguments at the hearing focused exclusively on whether the warrant lacked sufficient particularity to guide the police in their search of Burke’s property. At no time did Burke argue the affidavit was insufficient to provide the magistrate with probable cause. That contention appears for the first time on appeal, and we thus consider it waived. . . . When read alone, both Rule 52(b) and Rule 12 appear applicable to pretrial suppression motions...continue to full post

Full post as published by Fourth Amendment on February 05, 2011 (boomark / email).