US v. Guerrero, No. 17-50384 (4-22-19)(Per curiam w/Wallace, Tashima, & Robreno).  This is a chilling per curiam.  In it, the panel forecloses raises supposedly a new theory on appeal on a bad stop suppression issue.  There is also a circuit split on the standard of review.

The defendant was convicted of being a prohibited possessor.  The police stopped the car in which the defendant was a passenger.  He had a gun and ammunition.  He challenged the stop – supposedly for failure to signal a turn – by arguing that the driver had in fact signaled.  The court credited the officer. 

On appeal, defendant argued that California state law only requires a signal if it affected movement of another vehicle.  No affect, no violation.  The 9th deemed this a new argument, and a new ground for suppression.

In such a case, what should be the standard for review? “Good cause,” holds the 9th . The 9th looks at the 2014 amendments to Fed R Crim P 12 which states that an untimely motion requires “good cause.” See US v. Keesee, 358 F.3d 1217, 1220 (9th Cir 2004). This displaces the “plain error” standard. And yet, sister circuits disagree.  Three circuits – 5th, 6th, and 11th – review for plain error under Rule 52(b). The 9th is sympathetic to the “plain error,” musing that if they were writing on a “blank slate,” they “might be inclined to follow” plain error.  Alas, though, this is a three judge panel and “may not forge our own path” in this instance. 

Here, no “good cause” was shown and the defendant did not challenge the ruling on the ground raised.  Thus, the denial of the motion is affirmed.

Kudos to Gia Kim of the FPD Cal Central (Los Angeles) for arguing this issue.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/04/22/17-50384.pdf