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CA3: Gov't waived a justification for the search and exclusionary rule by not arguing it below

By John Wesley Hall, Jr.

The government waived the argument presented on appeal by not first presenting the issue to the District Court. Also, citing a case for one proposition does not include any other argument that might flow from it. United States v. Dupree, 2010 U.S. App. LEXIS 16310 (3d Cir. August 6, 2010): As the Government recognized at oral argument, simply citing a case in the District Court is not sufficient to raise all arguments that might flow from it. See Nee, 261 F.3d at 86. To preserve the argument that it now makes on appeal, the Government had to do more than broadly reference Hodari D. Instead, it had to give the District Court the opportunity to consider the argument it now makes, i.e., whether the policies underlying the exclusionary rule demonstrate that it should apply where, as here, an illegally seized defendant breaks free and discards evidence while fleeing...continue to full post

Full post as published by Fourth Amendment on August 09, 2010 (boomark / email).