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SCOTUS Decision After Sentencing Won't Save You From Waiver

By William Peacock, Esq. on April 11, 2013 | Last updated on March 21, 2019

Abasi Baker's Fourth Amendment rights were probably violated. He was convicted of seven counts of robbery, the use of a firearm in relation to a crime of violence, and of being a convicted felon in possession of a firearm. The conviction was made possible after investigating officers, without a warrant, put a GPS tracker on his girlfriend's car.

He has an interesting suppression argument - especially in light of United States v. Jones, a SCOTUS decision that held that the attachment of a GPS device to a suspect's car is a search governed by the Fourth Amendment.

Too damn bad. He just got 12(b)(3)'d.

Federal Rule of Criminal Procedure 12(b)(3) requires that certain motions, including suppression motions, be made before trial. Rule 12(e) states that any motions not brought at the proper time are waived. The Tenth Circuit has also previously ruled that suppression motions raised for the first time on appeal are waived absent a showing of good cause.

What amounts to good cause? An easier question is what doesn't amount to good cause? The Tenth Circuit once again cited the Fourth Circuit's previous holding that "good cause was lacking when ''[t]he record show[ed] that sufficient information was available to defense counsel before trial that would have enabled him to frame his [argument for] suppression.'"

But wait - SCOTUS didn't announce their decision until 2012, which was after Baker was sentenced. He ain't Miss Cleo.

It doesn't matter. He knew about the GPS monitoring. To be sure, it was an unsettled question of law, but defendants "need not, and often do not, await a Supreme Court precedent directly in point before raising a constitutional challenge ..." Other circuit courts had heard, discussed, and decided (favorably, at least in D.C.) the issue that he failed to raise.

In other words - constitutional challenges are like objections at a wedding - speak now or forever hold your peace. Unless the issue was incomprehensible, and there was no way for the defendant to know that it would become an issue, it can't be brought for the first time on appeal.

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