U.S. v. Scott, No. 11-10529 (11-26-12) (Bybee with Arnold (Sr. CJ 8th Cir); concurrence by Rawlinson).
This case revolves around whether the government waived its argument for an automobile exception. The 9th found it had not, and reversed the district court's suppression as there was probable cause and the automobile exception applied. The defendant was served a writ of execution on his home by a constable. Unfortunately for the defendant, the constable smelled marijuana and saw the defendant with a lot of cash, and he called the police. The police responded, and found cash and drugs. The police were aware that the defendant had been going back and forth to his car in the driveway and so the police searched it and found a firearm and cocaine. The defendant filed a motion to suppress. The government failed to respond to the issue on its merits, although at the suppression hearing before the magistrate, the government did address the car exception orally and subsequently filed objections to the magistrate's suppression order. The district court adopted the suppression recommendation. On appeal, the 9th held that the government had not waived its objection, and the defendant had not waived its waiver argument. On the merits, the 9th held that the automobile exception applied, and there was ample probable cause for a search. Rawlinson, concurring, did so to stress that the government dodged a bullet: if the court had addressed the waiver issue, and held the government had waived, then the government likely would have been out of luck.