                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   April 11, 2013
                                      PUBLISH                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
       v.                                                No. 12-3023
 ABASI S. BAKER,

              Defendant - Appellant.


         APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF KANSAS
                   (D.C. NO. 2:11-CR-20020-CM-1)


Jonathan Sternberg, Jonathan Sternberg, Attorney, P.C., Kansas City, Missouri,
for Defendant - Appellant.

James A. Brown, Assistant United States Attorney, (Barry R. Grissom, United
States Attorney), Topeka, Kansas, for Plaintiff - Appellee.


Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.


HARTZ, Circuit Judge.


      Defendant Abasi Baker was convicted in the United States District Court

for the District of Kansas on seven counts each of robbery affecting commerce,

see 18 U.S.C. § 1951, use of a firearm in relation to a crime of violence, see id.
§ 924(c)(1)(A), and being a convicted felon in possession of a firearm. See id.

§ 922(g)(1). Defendant appeals his convictions, raising two arguments: (1) that

use of a global-positioning-system (GPS) tracking device on his car violated his

Fourth Amendment rights, and (2) that the evidence was insufficient to convict

him on the eight firearms counts associated with the first four robberies. We do

not reach the merits of Defendant’s Fourth Amendment argument because he

waived the argument by failing to raise it before trial. And we reject Defendant’s

argument that the evidence was insufficient for a rational jury to find that he

possessed the identified firearm at the times charged. Exercising jurisdiction

under 28 U.S.C. § 1291, we affirm Defendant’s convictions.

I.    BACKGROUND

      A series of seven armed robberies of retail stores and check-cashing

businesses was carried out in the Kansas City, Kansas, area between January and

March 2011. During investigation of some of the earlier robberies, surveillance-

camera footage led police to believe that the robbers were using a car owned by

Defendant’s girlfriend. Officers placed a GPS tracking device on the car, then

monitored its movements. On March 3, 2011, the GPS surveillance allowed

police to link the car to a just-completed robbery in Overland Park, Kansas.

Defendant was pulled over and arrested along with an accomplice. Cash from the

robbery and a loaded .40 caliber Glock semi-automatic handgun, serial number

EHN890, were taken from the car.

                                         -2-
      The handgun had been lawfully purchased in late 2009 by Enjoli Collier, a

friend of Defendant’s. Each of the counts of the indictment charging use or

possession of a firearm identified the firearm as “a .40 caliber Glock pistol,

Model 27, serial number EHN890.” Aplt. App., Vol. 1 at 16–26. At trial Collier

testified as follows: From the time she purchased the gun until Defendant’s

arrest, she kept the gun in the spare-tire compartment in the trunk of her car. She

had used it on January 1, 2011, but had not seen it since. She would leave the car

unlocked when it was parked in her garage. Defendant paid to stay with Collier

for a couple weeks in February 2011. Before then, however, in January and early

February, he visited her house on multiple occasions and had unrestricted access

to every part of her house while visiting. She never told Defendant where she

kept her handgun or gave him permission to take or use it, but she did tell a

mutual friend of theirs where it was. Also, the government presented evidence

that Defendant’s cell phone received a call from a cell tower serving Collier’s

house on the day of one of the January robberies, meaning that the phone was in

the general vicinity of Collier’s house approximately an hour and a half before the

robbery. And for each robbery a witness testified that the gun used by the robber

looked like Collier’s gun.

II.   DISCUSSION

      A.     The GPS Tracking




                                         -3-
      Defendant argues that the GPS evidence of his location at the time of the

crimes should have been excluded because the GPS device was installed without a

warrant in violation of the Fourth Amendment. He relies on United States v.

Jones, 132 S. Ct. 945 (2012), in which the Supreme Court held that attachment of

a GPS tracking device to monitor movement of a suspect’s car is a search

governed by the Fourth Amendment. Although he did not move to suppress this

evidence in district court, he now asks us to grant relief under the plain-error

doctrine, which allows review of some issues not raised in the lower court. See

Fed. R. Crim. P. 52(b) (“A plain error that affects substantial rights may be

considered even though it was not brought to the court’s attention.”). We hold

that Defendant has waived his right to raise the issue and therefore we deny relief.

      Federal Rule of Criminal Procedure 12(b)(3) provides: “Motions That

Must Be Made Before Trial. The following must be raised before trial: . . . (C) a

motion to suppress evidence . . . .” Rule 12(c) permits district courts to set

deadlines for pretrial motions. And Rule 12(e) provides that “[a] party waives

any Rule 12(b)(3) defense, objection, or request not raised by the deadline the

court sets under Rule 12(c) or by any extension the court provides. For good

cause, the court may grant relief from this waiver.” We have held that Rule 12

dictates that “a suppression argument raised for the first time on appeal is waived

(i.e., completely barred) absent a showing of good cause for why it was not raised

before the trial court.” United States v. Burke, 633 F.3d 984, 988 (10th Cir.

                                         -4-
2011). We identified several reasons why it is appropriate to bar defendants from

raising suppression arguments on appeal that were never presented to the district

court:

         First, because the exclusionary rule was crafted more to benefit
         society at large by deterring overzealous police conduct than to
         personally benefit defendants, the exclusionary rule should be used
         sparingly in instances where its deterrent effect on police violations
         is minimal (as with appellate review for plain error). Furthermore,
         in most circumstances fairness concerns militate in favor of a waiver
         rule because although the government can appeal an adverse ruling
         on a suppression motion prior to trial, it cannot do so once jeopardy
         has attached. Moreover, if a defendant has not raised a suppression
         issue before the district court, the Government (under an assumption
         that its proffered evidence was admissible) may plausibly conclude
         during trial that it does not need to accumulate and introduce
         additional evidence to prevail. Finally, allowing a defendant to
         challenge the inclusion of evidence on appeal places the government
         in the difficult position of defending itself based on a potentially
         meager record.

Id. at 989–90 (citations and internal quotation marks omitted).

         In construing Rule 12(e) we have held that the “good cause” necessary to

avoid waiver must be a cause why the defendant “failed to raise the argument

below.” Id. at 988 (internal quotation marks omitted). We cited with approval

the Fourth Circuit’s ruling 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.’” Id.

(quoting United States v. Wilson, 115 F.3d 1185, 1191 (4th Cir. 1997)).




                                           -5-
       There is no doubt that Defendant knew about the GPS monitoring soon

enough to raise a timely suppression motion. His sole argument is that he did not

know that there had been a violation of the Fourth Amendment because Jones was

not decided until he had been sentenced. We reject the argument. Defendants

need not, and often do not, await a Supreme Court precedent directly in point

before raising a constitutional challenge to a search or seizure. Indeed, the very

argument unpressed by Defendant had been raised in other circuits before his trial

and, most notably, had prevailed in the D.C. Circuit in United States v. Maynard,

615 F.3d 544 (D.C. Cir. 2010). There was not good cause justifying Defendant’s

failure to raise his issue before trial.

       Defendant nevertheless argues that our consideration of the merits of his

Fourth Amendment claim is compelled by retroactivity doctrine. He points to the

Supreme Court’s statement that “a new rule for the conduct of criminal

prosecutions is to be applied retroactively to all cases, state or federal, pending on

direct review or not yet final, with no exception for cases in which the new rule

constitutes a ‘clear break’ with the past.” Griffith v. Kentucky, 479 U.S. 314, 328

(1987). In Defendant’s view the holding of Griffith “mandates application of the

‘good cause’ ‘safety valve’ in Rule 12(e) . . . and trumps Rule 12(e)’s ordinary

waiver principles in applying Jones to this case.” Reply Br. at 12.

       Defendant reads too much into Griffith’s holding. To say that Jones should

be the governing law on this direct appeal is to say no more than that it should be

                                           -6-
treated the same as law that had been settled years earlier. And arguments based

on years-ago decisions certainly can be forfeited and waived (otherwise nothing

could be waived under Rule 12(e)), even though there could be no dispute that

those decisions “apply” to cases on appeal. In Griffith no question of waiver or

forfeiture arose because the defendant had preserved at trial his claim of

constitutional error. See Griffith, 479 U.S. at 317.

      Those questions did arise, however, in Powell v. Nevada, 511 U.S. 79

(1994). The defendant had sought on direct appeal to take advantage of a United

States Supreme Court opinion postdating his arrest that required warrantless

arrests to be followed by a judicial determination of probable cause within 48

hours. See id. at 83. Nevada’s highest court had ruled that the Supreme Court’s

opinion did not apply to Powell’s earlier arrest. Powell reversed and remanded,

holding that the 48-hour rule did apply to the arrest because the case was on

direct appeal and not yet final. But it continued:

             It does not necessarily follow, however, that Powell must be
      set free or gain other relief, for several questions remain open for
      decision on remand. In particular, the Nevada Supreme Court has
      not yet closely considered the appropriate remedy for a delay in
      determining probable cause (an issue not resolved by [the 48-hour
      case]), or the consequences of Powell’s failure to raise the federal
      question, or the district attorney’s argument that introduction at trial
      of what Powell said on November 7, 1989, was “harmless” in view of
      a similar, albeit shorter, statement Powell made on November 3,
      prior to his arrest. Expressing no opinion on these issues, we hold
      only that the Nevada Supreme Court erred in failing to recognize that
      Griffith v. Kentucky calls for retroactive application of [the] 48-hour
      rule.

                                         -7-
Id. at 84–85 (emphasis added) (citations, footnote, and internal quotation marks

omitted). Powell thus clearly forecloses Defendant’s argument that Griffith’s rule

“trumps Rule 12(e)’s ordinary waiver principles.” Reply Br. at 12.

      Finally, Defendant argues that appellate courts have routinely engaged in

plain-error review when Supreme Court decisions have been issued while a case

was on direct review, and he cites several such cases applying the doctrine of

Apprendi v. New Jersey, 530 U.S. 466 (2000) (sentence upper limit is set by facts

found by jury). But those cases did not involve issues subject to the waiver

requirement of Rule 12(e). Our decision in Burke, 633 F.3d at 988, ended any

doubt in this circuit that plain-error review under Fed. R. Crim. P. 52(b) is not

available when an issue has been waived under Rule 12(e).

      Thus, we hold that Defendant’s Fourth Amendment claim was waived and

cannot provide a basis for disturbing his conviction.

      B.     Sufficiency of the Evidence

      Defendant challenges the sufficiency of the evidence for conviction on the

eight counts charging possession or brandishing of a gun in connection with the

robberies on January 6, 10, 12, and 16, 2011. He contends that the government

failed to prove that he possessed and used the specific gun charged in those

counts (namely, Collier’s gun). Our review of the sufficiency of the evidence is

de novo. See United States v. Smith, 641 F.3d 1200, 1204 (10th Cir. 2011). “We

view the evidence in the light most favorable to the verdict to ascertain whether

                                         -8-
any rational trier of fact could have found the defendant guilty beyond a

reasonable doubt.” Id. at 1204–05.

       The evidence established that Defendant had the gun when he was arrested

in March 2011, and witnesses to each of the robberies described him as having a

gun resembling Collier’s. Defendant acknowledges that there was adequate

circumstantial evidence that he possessed the gun during the robberies that

occurred after he took up residence at Collier’s house on February 14. But he

argues that a juror could only speculate that Defendant had the gun before

February 14 because there was no evidence that he could have known of the gun

or its location before he moved in with Collier.

       We are not persuaded. It is undisputed that Collier never told Defendant

where the gun was. Yet he possessed it when arrested; so he must have learned of

its location without Collier’s help. And the date that Defendant moved into

Collier’s residence is not determinative, because he had free access to her home

in January and early February, before he moved in. Also, Defendant overlooks

Collier’s testimony that she had told a friend of Defendant’s where the gun was.

We reject Defendant’s challenge to the sufficiency of the evidence.

III.   CONCLUSION

       We AFFIRM Defendant’s convictions.




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