Opposition Brief — Jose Amador and Diana Mekaeil, Petitioners v. United States

No. 18-7219

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

JOSE AMADOR AND DIANA MEKAEIL, PETITIONERS

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

BRIAN A. BENCZKOWSKI

Assistant Attorney General

AMANDA B. HARRIS

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether

petitioners’

the

court

argument

of

to

appeals

suppress

was

required

crystal

to

entertain

methamphetamine

and

other evidence seized from their hotel room pursuant to a search

warrant, where that argument was directly contrary to the position

petitioners took in the district court.

(I)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 18-7219

JOSE AMADOR AND DIANA MEKAEIL, PETITIONERS

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-19a) is not

published in the Federal Reporter but is available at 2018 WL

4382199.

The memorandum and order of the district court (Pet.

App. 20a-28a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on September

14, 2018.

Petitions for rehearing were denied on October 26, 2018

(Pet. App. 29a, 30a).

The petition for a writ of certiorari was

filed on December 26, 2018.

The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

2

STATEMENT

Following a guilty plea in the United States District Court

for the District of Kansas, petitioner Jose Amador was convicted

of possessing a firearm in furtherance of a drug trafficking crime,

in violation of 18 U.S.C. 924(c) (2012), and using a communication

facility to facilitate a drug-trafficking offense, in violation of

21 U.S.C. 843(b).

Amador Judgment 1.

He was sentenced to 108

months of imprisonment, to be followed by three years of supervised

release.

Mekaeil

Id. at 2-3.

was

convicted

Following a guilty plea, petitioner Diana

of

using

a

communication

facility

to

distribute a controlled substance, in violation of 21 U.S.C.

843(b).

Mekaeil Judgment 1.

She was sentenced to 48 months of

imprisonment, to be followed by one year of supervised release.

Id. at 2-3.

1.

The court of appeals affirmed.

Pet. App. 1a-19a.

Brianna Hines-Black was a housekeeper at a hotel in

Mulvane, Kansas, attached to a casino.

Pet. App. 2a.

On November

16, 2015, she entered Room 150 of the hotel to clean the room,

after knocking on the door and receiving no response.

Ibid.

When

she entered, she saw “a container of a flammable substance that

she believed might be lighter fluid, two glass pipes that she later

described to law enforcement agents as crack pipes, a scale, a

beaker, and what appeared to be a plastic bag full of crack in an

open drawer.”

Id. at 2a-3a.

3

Hines-Black reported what she had seen to her supervisor.

Pet. App. 3a.

The supervisor contacted the hotel manager, who

contacted Kansas Racing and Gaming Commission agents assigned to

the casino; Agent Craig Pentecost was assigned to respond.

Ibid.

Agent Pentecost called the Mulvane Police Department and asked the

department to send an officer.

to the hotel.

Ibid.

Ibid.

Agent Pentecost also went

When he arrived, he learned from the hotel

manager that Room 150 was rented in the name of Diana Mekaeil, and

Hines-Black told him what she had seen in the room.

The

Bohannon.

Mulvane

Police

Pet. App. 3a.

Department

dispatched

Ibid.

Officer

Brandon

When he arrived, he conferred with Agent

Pentecost; out of concern that Room 150 was being used as a

methamphetamine lab and posed a danger to other occupants of the

hotel, the two decided to enter the room.

Id. at 3a-4a.

Inside

Room 150, the officers observed in plain view “two butane lighters,

a can of acetone, a large box of plastic sandwich bags, two glass

pipes, a plastic measuring cup, a metal measuring spoon, a roll of

cellophane wrap, and a set of digital scales.”

Ibid.

They also

saw “two clear plastic bags containing what appeared to be crystal

methamphetamine” in an open drawer. Id. at 5a (quoting affidavit).

The officers left the room.

Id. at 4a.

Officer Bohannon contacted

his supervisor, Lieutenant Matthew O’Brien, who came to the hotel

and looked inside Room 150.

Ibid.

Lieutenant O’Brien “concluded

that they needed a warrant to search the room.”

Ibid.

4

Meanwhile, another agent reviewed hotel surveillance footage

and identified two suspects as the occupants of Room 150.

App. 5a.

Pet.

Officers arrested the two suspects -- petitioners Amador

and Mekaeil -- when the suspects entered the hotel lobby that

afternoon.

Ibid.

At the time of his arrest, Amador was carrying

a backpack that contained a stolen handgun, approximately .25

pounds of cocaine, 1.5 pounds of methamphetamine, “an unspecified

quantity of black tar heroin, and prescription pills.” Ibid. Both

petitioners also possessed keys to Room 150.

Ibid.

After the arrest, Lieutenant O’Brien prepared a detailed

affidavit for a warrant to search Room 150.

Pet. App. 5a-6a.

The

affidavit reported that Officer Bohannon had responded to a call

at the hotel and had spoken with Hines-Black, who “stated that she

was servicing [R]oom 150, when she observed in plain view on a

table a scale, meth pipe, Ziploc sandwich bags, acetone, and other

items.”

Id. at 5a (quoting affidavit).

The affidavit further

reported that officers entered Room 150 and saw the items HinesBlack had described, as well as “two clear plastic bags containing

what appeared to be crystal methamphetamine.”

Ibid. (quoting

affidavit).

Additionally, the affidavit explained that Room 150

was

to

rented

Mekaeil;

that

male

and

female

suspects

later

identified as Mekaeil and Amador were observed on surveillance

footage exiting Room 150; that Amador was carrying the contraband

described above when he was arrested; and that keys to Room 150

5

were found on both Amador and Mekaeil when they were arrested.

See id. at 6a.

Finally, the affidavit noted that Mekaeil had

previously been arrested for possessing drugs and that Amador “had

several arrests for burglary and one for firearms possession.”

Ibid. (quoting affidavit).

A state judge granted the search warrant application on the

evening of the incident, and officers returned to Room 150 to

execute it. Pet. App. 23a. Among other things, officers recovered

multiple plastic bags of methamphetamine from the room.

2.

Ibid.

A grand jury in the District of Kansas charged each

petitioner with one count of conspiring to distribute and possess

with intent to distribute 500 grams or more of a mixture and

substance containing a detectable amount of methamphetamine, in

violation of 21 U.S.C. 846.

Indictment 1-2.

The grand jury also

charged Amador with three counts of possession of a firearm by a

felon, in violation of 18 U.S.C. 922(g).

Indictment 3-4.

Petitioners moved under Rule 12(b)(3) of the Federal Rules of

Criminal Procedure to suppress the evidence obtained from Room

150.

Pet. App. 23a; D. Ct. Doc. 36, at 1 (Apr. 10, 2016).

Their

written memorandum in support of the Rule 12 motion consisted of

two parts.

The first part argued that the officers’ warrantless

entry into Room 150 was unlawful.

10,

2016)

(Suppression

Mem.).

D. Ct. Doc. 37, at 3-12 (Apr.

The

second

part

argued

that,

“[w]ithout the observations of [the] officers/agents during the

6

unlawful search, the warrant affidavit would not have contained

sufficient evidence for the court to conclude that there was

probable cause to issue the warrant.”

altered).

Id. at 13 (capitalization

In particular, petitioners invoked the Tenth Circuit’s

decision in United States v. Sims, 428 F.3d 945 (2005), which they

summarized as providing that, “when a search is made based on a

warrant that contains illegally obtained information, the [c]ourt

must consider whether the warrant affidavit, with the challenged

information excised, still established probable cause to issue the

warrant.”

Suppression Mem. 14.

In their view, that rule required

suppression here because the affidavit in support of the search

warrant lacked sufficient information to demonstrate the “veracity

or reliability of the house keeper, Ms. Hines-Black.”

Ibid.; see

id. at 15-16 (arguing that, without the officers’ observations

from their warrantless entry into Room 150, “the magistrate was

left with nothing [in the affidavit] but the wholly unsubstantiated

allegations of this virtually unknown Source of Information”).

After

an

evidentiary

hearing,

petitioners’ motion to suppress.

the

district

court

Pet. App. 20a-28a.

denied

The court

agreed with petitioners that the officers’ initial search of Room

150 was unlawful because no exigent circumstances existed to

justify a warrantless search.

suppression

of

the

unwarranted

because

evidence

the

Id. at 24a-25a.

obtained

affidavit

But the court found

from

for

the

Room

150

search

to

be

warrant

7

“contained sufficient

* * *

untainted evidence” to show probable

cause even without the portions of the affidavit traceable to the

officers’ initial search.

954).

Id. at 25a (quoting Sims, 428 F.3d at

In particular, the court noted that the affidavit described

Hines-Black’s “explicit and detailed” observations of “a scale,

meth pipe, ziplock sandwich bags, acetone, and other items” in

Room 150 and contained sufficient information for a judge to credit

those observations -- including identifying Hines-Black by name

and describing the first-hand basis of her knowledge.

Id. at 26a.

The district court also noted that the affidavit described

the drugs, stolen gun, and room keys recovered from petitioners

when they were arrested.

to

suppress

that

Pet. App. 27a.

evidence,

although

Petitioners had not moved

they

had

argued

at

the

suppression hearing that the arrest was also tainted by the earlier

warrantless search of Room 150.

Id. at 27a n.17; see 6/13/16

Suppression Hearing Tr. 117-118.

In declining to suppress the

evidence obtained from Room 150, the district court also explained

that, “[t]o the extent [petitioners] challenge their arrest,” the

arrest was lawful because it was based on “sufficient information

from a reasonably trustworthy source [i.e., Hines-Black] to give

the officers probable cause to believe that an offense had been or

was being committed” by petitioners.

Petitioners

subsequently

Pet. App. 27a n.17.

pleaded

guilty

while

preserving

their right to appeal the district court’s order denying their

8

motion to suppress.

Pet. App. 2a.

Amador pleaded guilty to one

count of possessing a firearm in furtherance of a drug trafficking

crime, in violation of 18 U.S.C. 924(c) (2012), and one count of

using a communication facility to facilitate a drug-trafficking

offense, in violation of 21 U.S.C. 843(b).

Amador Judgment 1.

He

was sentenced to 108 months of imprisonment, to be followed by

three years of supervised release.

Id. at 2-3.

Mekaeil pleaded

guilty to one count of using a communication facility to distribute

a controlled substance, in violation of 21 U.S.C. 843(b).

Judgment 1.

She was sentenced to 48 months of imprisonment, to be

followed by one year of supervised release.

3.

Mekaeil

Id. at 2-3.

The court of appeals affirmed in an unpublished and non-

precedential decision.

Petitioners

Pet. App. 1a-19a.

contended

that

the

district

court

committed

“legal error” by applying the Tenth Circuit decision petitioners

themselves had relied on in their motion to suppress, United States

v. Sims, supra, to conclude that the search warrant contained

sufficient evidence of probable cause even absent the “tainted”

information obtained from the officers’ warrantless entry into

Room 150. Mekaeil C.A. Br. 19; see Amador C.A. Br. 40. Petitioners

argued that the district court should instead have considered

whether “the agents’ decision to seek the warrant was prompted by

what they had seen during the initial entry.”

Mekaeil C.A. Br. 17

(quoting Murray v. United States, 487 U.S. 533, 542 (1988)).

The

9

government argued, among other things, that petitioners had failed

to preserve that argument for appeal because they had failed to

raise it in their Rule 12 motion to suppress the evidence.

17-

3135 Gov’t C.A. Br. 36-37; 17-3018 Gov’t C.A. Br. 36-37; see Fed.

R. Crim. P. 12(c)(3).

The court of appeals determined that petitioners’ claim did

not provide a basis for reversing their convictions.

The court

observed that petitioners, “consistent with [the court’s] decision

in Sims, asked the district court to resolve their suppression

simply by examining the search warrant application and deciding

whether, absent the observations made by the law enforcement

officers in Room 150, it contained sufficient information to

provide probable cause for issuance of the search warrant.”

App. 17a.

Pet.

And the court of appeals noted that the district court

had “applied the precise analytical framework that defendants

argued in their motion to suppress should be applied.”

15a.

Id. at

The court of appeals thus found, “[i]n light of these

circumstances,” that petitioners’ claim that the district court

had legally erred in doing so was not properly before it, labeling

the issue one of “invited error.”

Id. at 19a; see id. at 16a-19a.

The court of appeals also “readily agree[d] with the district court

that the officers had probable cause to conduct [the] warrantless

arrest of Amador,” based on Hines-Black’s observations inside Room

10

150 and the hotel surveillance footage connecting Amador to Room

150.

Id. at 12a.

ARGUMENT

Petitioners contend (Pet. 12-16) that the court of appeals

erred in finding their claim -- that the district court should not

have applied the legal rule petitioners asked the court to apply

-- not to be properly raised on appeal.

merit.

That contention lacks

The court of appeals correctly determined that petitioners

had relinquished the argument they sought to present for the first

time on appeal, and its unpublished decision does conflict with

any decision of another court of appeals.

would

be

an

unsuitable

vehicle

for

Furthermore, this case

addressing

the

question

petitioners seek to present, because the district court’s decision

denying petitioners’ motion to suppress would have been affirmed

on appeal even if petitioners’ appellate argument had been reviewed

under the plain-error standard that they contend the Ninth Circuit

would have applied.

1.

The court of appeals correctly rejected petitioners’

effort to “change [their] position on the way from the district

court to the court of appeals,” United States v. Wells, 519 U.S.

482, 488 (1997).

Petitioners asked the district court to apply

the Tenth Circuit’s decision in United States v. Sims, 428 F.3d

945 (2005), and thereby relinquished any argument that the district

court erred by applying Sims.

11

a.

Federal Rule of Criminal Procedure 12(b)(3) provides

that a motion to suppress evidence “must be raised by pretrial

motion if the basis for the motion is then reasonably available

and the motion can be determined without a trial on the merits.”

Rule 12(c)(3) in turn provides that, when a defendant fails to

make a timely pretrial motion under Rule 12(b)(3), the district

court may consider “the defense, objection, or request” only upon

a showing of good cause.

Fed. R. Crim. P. 12(c)(3).

Under Rule 12(c)(3), therefore, suppression claims that are

not made before trial “may not later be resurrected

* * *

in the

absence of the showing of ‘cause’ which that Rule requires.” Davis

v.

United

States,

411

U.S.

233,

242

(1973)

(interpreting

a

predecessor version of Rule 12); see Wainwright v. Sykes, 433 U.S.

72, 84 (1977) (“[W]e concluded [in Davis] that review of [a claim

waived under Rule 12] should be barred

* * *

on direct appeal,

absent a showing of cause for the noncompliance and some showing

of actual prejudice resulting from the alleged constitutional

violation.”).

And Rule 12(c)(3) “applies not only to the failure

to make a pretrial motion, but also to the failure to include a

particular argument in the motion.”

United States v. Burke, 633

F.3d 984, 987 (10th Cir.) (quoting United States v. Dewitt, 946

F.2d 1497, 1502 (10th Cir. 1991)), cert. denied, 563 U.S. 951

(2011); see, e.g., United States v. Oquendo-Rivas, 750 F.3d 12, 17

(1st Cir. 2014); United States v. Green, 691 F.3d 960, 964-966

12

(8th Cir. 2012); United States v. Rose, 538 F.3d 175, 184-185 (3d

Cir. 2008); United States v. Caldwell, 518 F.3d 426, 430-431 (6th

Cir.), cert. denied, 554 U.S. 929 (2008).

b.

Petitioners failed to preserve, in a timely pretrial

Rule 12 motion, the suppression argument they sought to raise for

the first time on appeal.

See 17-3135 Gov’t C.A. Br. 36-37; 17-

3018 Gov’t C.A. Br. 36-37.

In the district court, petitioners

relied on Sims to argue that “when a search is made based on a

warrant that contains illegally obtained information, the [c]ourt

must consider whether the warrant affidavit, with the challenged

information excised, still established probable cause to issue the

warrant.”

Suppression Mem. 14 (citing Sims, 428 F.3d at 954).

They further argued that the warrant affidavit at issue here would

“lack[] probable cause” when considered “[w]ithout the unlawful

observations of [the] agents and officers.”

Id. at 15.

In Sims, law enforcement officers conducted two warrantless

searches (later found to be unlawful) and obtained warrants to

search the defendant’s office, computer, and computer disks, based

in part on information obtained from those warrantless searches.

428 F.3d at 950, 954.

a

warrant

is

The court of appeals explained that, “[w]hen

tainted

by

some

unconstitutionally

obtained

information, [a court] nonetheless uphold[s] the warrant if there

was probable cause absent that information.”

Id. at 954 (citing

United States v. Cusumano, 83 F.3d 1247, 1250 (10th Cir. 1996) (en

13

banc)); see United States v. Snow, 919 F.2d 1458, 1460 (10th Cir.

1990) (“An affidavit containing * * * unconstitutionally obtained

information invalidates a warrant if that information was critical

to

establishing

probable

cause.

If,

however,

the

affidavit

contained sufficient accurate or untainted evidence, the warrant

is nevertheless valid.”) (citing United States v. Karo, 468 U.S.

705, 719 (1984)).

The

district

court

addressed

petitioners’

argument

by

applying Sims, as petitioners had asked it to do, and determined

that the search warrant affidavit contained sufficient untainted

evidence of probable cause -- principally in the form of HinesBlack’s detailed and first-hand observations of what appeared to

be illegal drugs and drug paraphernalia in Room 150 -- without the

information derived from the officers’ warrantless search of Room

150.

Pet. App. 26a-27a; see pp. 6-7, supra.

On appeal, however,

petitioners switched course and argued that “Sims, a traditional

‘tainted’ warrant case, did not provide the applicable standard

here,” because in Sims the officers had not sought a warrant to

search the same location they had previously searched without a

warrant.

Mekaeil C.A. Br. 19-20; see Amador C.A. Br. 40-41

(arguing that “Sims is analytically distinguishable” because “the

fruit of the original unlawful search of Room 150 and the fruit of

the execution of the search warrant at Room 150 are the same”).

Petitioners contended that, under the circumstances, this Court’s

14

decision in Murray v. United States, 487 U.S. 533 (1988), required

the district court to consider not only whether the affidavit for

the search warrant contained sufficient untainted evidence of

probable cause but also whether “the officers’ decision to seek

the warrant was prompted by what they had seen during their

initial, unlawful entry.”

Mekaeil C.A. Br. 19; see Amador C.A.

Br. 38.

Rule 12 precluded petitioners from identifying a new basis

for their challenge for the first time on appeal.

Petitioners

never presented their argument on appeal to the district court in

a timely Rule 12 motion; as a result, the case was framed very

differently there.

The district court understood the case to

concern the question whether evidence collected pursuant to a

warrant, which would presumptively be admissible, was instead

inadmissible

because

the

warrant

unlawfully collected evidence.

affidavit

was

tainted

by

The district court would not have

understood petitioners to be challenging the lawfulness of the

decision to seek the warrant, and it therefore did not address

that issue.

Petitioners never suggested that Sims was inapposite

-- indeed, quite the contrary -- and never asked the district court

to make any factual findings regarding whether the officers would

have sought a search warrant based on Hines-Black’s observations

of Room 150, even without the officers’ own observations during

their warrantless search. Rule 12 required petitioners to identify

15

their arguments in the district court, and petitioners never

identified

any

good

cause

for

being

excused

from

that

rule.

Indeed, the absence of any relevant factual findings would impede,

if

not

preclude,

circumstances,

meaningful

petitioners

appellate

were

review.

properly

Under

those

foreclosed

from

“resurrect[ing],” Davis, 411 U.S. at 242, on appeal a suppression

argument they failed to make in a timely manner under Rule 12.

c.

The unpublished decision below reached that result under

the doctrine of “invited error,” rather than by applying Rule

12(c)(3), as the government had urged.

Pet. App. 15a-19a; see 17-

3135 Gov’t C.A. Br. 36-37; 17-3018 Gov’t C.A. Br. 36-37.

Invited

error is a “‘species of waiver’ that ‘precludes a party from

arguing against a proposition the party willingly adopted’ before

the district court.”

Pet. App. at 16a (quoting United States v.

Rodebaugh, 798 F.3d 1281, 1304 (10th Cir. 2015)); see Wells, 519

U.S. at 488 (describing invited error as the rule that “a party

may not complain on appeal of errors that he himself invited or

provoked the district court

. . .

to commit”) (brackets and

citation omitted); cf. Johnson v. United States, 318 U.S. 189, 201

(1943) (“We cannot permit an accused to elect to pursue one course

at the trial and then, when that has proved to be unprofitable, to

insist on appeal that the course which he rejected at the trial be

reopened to him.”).

16

Petitioners urged the district court to apply Sims, with no

suggestion that Sims was inapposite or otherwise incomplete.

Pet. App. 16a-17a.

See

“In light of these circumstances,” the court

of appeals reasonably determined that any error in applying Sims

to the facts of this case was an error petitioners themselves

“invited” the district court to make and therefore could not

challenge on appeal.

2.

Petitioners

Id. at 19a.

contend

(Pet.

8-11)

that

the

courts

of

appeals are divided on the question whether an invited error must

be “deliberate.”

review.

That contention does not warrant this Court’s

The putative disagreement petitioners identify is not

significant and, in any event, is not implicated here.

As explained above, invited error is a form of waiver.

p. 15, supra.

See

It rests on the premise that a party who invites

the district court to take some action may not challenge that

action as a basis for reversal on appeal.

See Pet. App. 16a

(“[H]aving induced the [district] court to rely on a particular

erroneous proposition of law or fact, a party

a later stage

. . .

. . .

may not at

use the error to set aside the immediate

consequences of the error.”) (quoting United States v. Deberry,

430 F.3d 1294, 1302 (10th Cir. 2005), cert. denied, 549 U.S. 850

(2006)).

The courts of appeals have long recognized such a rule,

which protects against unfair gamesmanship.

See, e.g., United

States v. Quinones, 511 F.3d 289, 321 (2d Cir. 2007), cert. denied,

17

555 U.S. 910 (2008); United States v. Hamilton, 499 F.3d 734, 736

(7th Cir. 2007), cert. denied, 552 U.S. 1129 (2008); Virgin Islands

v. Rosa, 399 F.3d 283, 290-291 (3d Cir. 2005); United States v.

Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc); United States

v. Herrera, 23 F.3d 74, 75 (4th Cir. 1994).

Petitioners

argue

(Pet.

8)

that

the

decision

below

is

inconsistent with the Ninth Circuit’s en banc decision in Perez,

supra.

In Perez, the Ninth Circuit reasoned that the invited-

error doctrine is a form of waiver rather than forfeiture and that

it should require some showing that the defendant “was aware” of

the right he relinquished.

116 F.3d at 845 (citing United States

v. Olano, 507 U.S. 725, 733 (1993)); see id. at 844-845.

The Ninth

Circuit concluded that without such a showing, the defendant has

merely forfeited the claim of error, and plain-error review is

available on appeal.

See id. at 846 (citing Johnson v. United

States, 520 U.S. 461, 465-466 (1997)).

As petitioner observes

(Pet. 8-9), the Second and Third Circuits have likewise stated

that a defendant must have some awareness about the consequences

of the error he induces in order for the invited-error doctrine to

apply.

See United States v. Bastian, 770 F.3d 212, 218 (2d Cir.

2014) (“[T]he invited error doctrine seeks to avoid rewarding

mistakes stemming from a defendant’s own ‘intelligent, deliberate

course of conduct’ in pursuing his defense.”) (citation omitted);

Rosa, 399 F.3d at 292-293 (following Perez, supra).

18

Petitioners err in alleging (Pet. 9-10) a sharp distinction

between those decisions and United States v. Appt, 354 F.3d 1269

(10th Cir. 2004), in which the Tenth Circuit observed that a

defendant need not have been “fully aware of all the possible legal

arguments that could be raised in support of the intentionally

abandoned position” in order to have invited error, id. at 1284

(emphases added).

The Tenth Circuit explained that a waiver does

not ordinarily require such exquisite “specificity,” id. at 1281,

or “lawyerly omniscience,” id. at 1284.

The court did not suggest

that invited error could result from “inadvertent[]” conduct (Pet.

9).

See Appt, 354 F.3d at 1281 (explaining that the defendant’s

stipulation

“intentional

to

the

admission

relinquishment”

of

an

exhibit

of

any

constituted

“challenge

[to]

an

the

[exhibit’s] admissibility”) (emphasis added) (citing Perez, 116

F.3d at 849, 851-852 (Kleinfeld, J., concurring in the judgment));

accord Rodebaugh, 798 F.3d at 1304 (“[I]nvited error precludes a

party from arguing against a proposition the party willingly

adopted.”) (emphasis added).

The Tenth Circuit’s approach is similar to other circuits’.

See United States v. Mariano, 729 F.3d 874, 881 (8th Cir. 2013)

(collecting cases).

To the extent that the Ninth Circuit may take

a narrower view of invited error, that difference in approach does

not

warrant

this

Court’s

review.

Contrary

to

petitioners’

suggestion, any distinction between the Ninth and Tenth Circuits

19

concerns not whether the invitation to error must be deliberate,

but rather what the record must show in order to find that the

defendant acted deliberately.

Petitioners do not explain why such

a distinction would be dispositive in a significant number of

cases.

And the putative disagreement is inapposite here because

this case involves a pretrial suppression issue subject to Rule

12(c)(3),

see

pp.

petitioners rely.

11-15,

supra,

unlike

the

cases

on

which

Although sometimes denominated as a “waiver”

(including in a prior version of Rule 12), Rule 12 “has never

required any determination that a party who failed to make a timely

motion intended to relinquish a defense, objection, or request

that was not raised in a timely fashion.”

Fed. R. Crim. P. 12

Advisory Committee Notes (2014 Amendments) (emphasis added); see

United States v. Anderson, 472 F.3d 662, 668-669 (9th Cir. 2006)

(explaining

that

Rule

12

“does

not

require

the

voluntary

or

intentional relinquishment of a known right” in order to bar an

untimely claim).

3.

Finally, review of petitioners’ question presented is

not warranted on the facts of this case because the issue made no

difference

to

the

outcome.

If

petitioners

forfeited

the

suppression argument at issue, rather than relinquishing it, the

court of appeals would still review the argument only for plain

error.

See Perez, 116 F.3d at 844.

To show plain error, a

defendant must establish (i) error that (ii) was “clear or obvious,

20

rather than subject to reasonable dispute,” (iii) “affected [his]

substantial rights, which in the ordinary case means he must

demonstrate that it ‘affected the outcome of the district court

proceedings,’”

and

(iv)

“‘seriously

affect[ed]

the

fairness,

integrity or public reputation of judicial proceedings.’”

Puckett

v. United States, 556 U.S. 129, 135 (2009) (citations omitted);

see Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904-1905

(2018); United States v. Dominguez Benitez, 542 U.S. 74, 81-82

(2004).

The district court did not commit plain error in denying

petitioners’ motion to suppress.

Petitioners assert (Pet. 16) that this Court’s decision in

Murray, supra, required suppression of the crystal methamphetamine

and other evidence found in petitioners’ hotel room unless “no

information

gained

from

the

illegal

entry

affected

law

enforcement’s decision to seek the warrant.” In Murray, this Court

held

that,

under

the

“independent

source”

doctrine,

evidence

seized pursuant to a search warrant may be admissible even when

that evidence had previously been discovered during an illegal

search. 487 U.S. at 536-541. In applying the “independent source”

doctrine to the facts at hand, the Court stated that “[t]he

ultimate question

* * *

is whether the search pursuant to warrant

was in fact a genuinely independent source of the information and

tangible evidence at issue here.”

Id. at 542.

“This would not

have been the case,” the Court continued, (1) “if the agents’

21

decision to seek the warrant was prompted by what they had seen

during the initial entry,” or (2) “if information obtained during

that

entry

was

presented

to

the

decision to issue the warrant.”

Magistrate

and

affected

his

Ibid. (footnote omitted).

Declining to suppress the evidence obtained from Room 150 was

not plain error under Murray.

The district court determined --

and petitioners do not dispute -- that the affidavit contained

sufficient probable cause even without the information derived

from

the

officers’

warrantless

search.

Pet.

App.

25a-26a.

Petitioners thus appear to acknowledge that the second rationale

for suppression identified in Murray, regarding whether unlawfully

obtained information affected the magistrate’s decision to issue

the warrant, is absent here.

See Pet. 5; see also Pet. App. 19a.

And

suggests,

let

alone

entitled

to

suppression

nothing

petitioners

in

the

would

record

have

been

plainly,

had

that

the

district court considered Murray’s first suppression rationale,

regarding whether unlawfully obtained information prompted the

decision to seek a warrant.

To the contrary, the record suggests

that the officers would have sought a search warrant even without

the information they obtained in their warrantless entry.

They

had ample reason and basis to do so, in light of Hines-Black’s

detailed

and

credible

description

of

the

drugs

and

drug

paraphernalia she observed in plain view when she entered Room 150

to clean it.

Cf. Murray, 487 U.S. at 543 (describing the relevant

22

inquiry as whether “the agents would have sought a warrant if they

had not earlier entered the warehouse” without a warrant).

In

addition to that, when the officers applied for a warrant, they

had already arrested petitioners (an action petitioners no longer

challenge) and had found significant quantities of drugs on Amador,

along with petitioners’ keys to Room 150.

See p. 4, supra.

Officers had also already connected petitioners to Room 150 with

surveillance footage. Ibid. At a minimum, therefore, the district

court did not commit plain error in denying petitioners’ motion to

suppress on these facts. *

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Solicitor General

BRIAN A. BENCZKOWSKI

Assistant Attorney General

AMANDA B. HARRIS

Attorney

MARCH 2019

Review is unwarranted as to petitioner Amador for the

additional reason that any error regarding the suppression was

harmless. His conviction does not rest on evidence obtained from

Room 150, but rather on the gun found on his person when he was

arrested and his use of a cellphone to arrange drug sales. See

17-3018 Gov’t C.A. Br. 40-41; Amador Plea Agreement 2.

*