                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA ,                        No. 11-10529
               Plaintiff - Appellant,
                                                     D.C. No.
                     v.                           2:10-cr-00430-
                                                    PMP-RJJ-1
 LOMANDO MARK SCOTT ,
            Defendant - Appellee.
                                                     OPINION


        Appeal from the United States District Court
                 for the District of Nevada
          Philip M. Pro, District Judge, Presiding

                  Argued and Submitted
           September 11, 2012–Las Vegas, Nevada

                    Filed November 26, 2012

     Before: Morris S. Arnold*, Johnnie B. Rawlinson,
             and Jay S. Bybee, Circuit Judges.

                  Opinion by Judge Bybee;
               Concurrence by Judge Rawlinson




 *
   The Honorable Morris S. Arnold, Senior Circuit Judge for the Eighth
Circuit, sitting by designation.
2                   UNITED STATES V . SCOTT

                           SUMMARY**


                           Criminal Law

    The panel reversed the district court’s order suppressing
evidence discovered in a warrantless search of the
defendant’s car.

    The panel held that the defendant did not waive or forfeit
his argument that the government waived its own argument
that the search was permissible under the automobile
exception to the warrant requirement. The panel also held
that the government did not waive its automobile exception
argument.

    The panel held that because the police had probable cause
to suspect that evidence of a crime would be found in the
defendant’s car, which had the potential for mobility and was
being used as a licensed motor vehicle, the government’s
warrantless search of the defendant’s car was permissible
under the automobile exception.

     Judge Rawlinson concurred in the result because, and
only because, neither the magistrate judge nor the district
court judge made a finding that the government had waived
its arguments regarding exceptions to the Fourth Amendment
warrant requirement.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 UNITED STATES V . SCOTT                     3

                         COUNSEL

    Nadia Janjua Ahmed & Adam M. Flake, United States
Attorney’s Office District of Nevada, Las Vegas, Nevada, for
the appellant.

   Alina M. Shell & Brenda Weksler, Federal Public
Defender’s Office, Las Vegas, Nevada, for the appellee.


                         OPINION

BYBEE, Circuit Judge:

    Defendant Lomando Scott was arrested and charged with
possession of a controlled substance and a firearm. Scott
moved to suppress evidence of these crimes that was
discovered in the subsequent warrantless search of his car.
After the government failed to file a timely written response
to Scott’s motion to suppress, raising its substantive
arguments for the first time orally during the suppression
hearing, the magistrate judge recommended that Scott’s
motion to suppress be granted. The government again
asserted that the search was permissible under the automobile
exception to the warrant requirement in its filed objections to
the magistrate judge’s Report and Recommendation.
Nevertheless, the district court adopted the magistrate judge’s
Report without further comment and granted Scott’s motion
to suppress. The issues for review are whether the
automobile exception argument has been waived, and, if not,
whether the government’s search of Scott’s automobile was
permissible under the automobile exception to the warrant
requirement. We reverse.
4                 UNITED STATES V . SCOTT

    I. FACTS AND PROCEDURAL BACKGROUND

    In the afternoon hours of August 11, 2010, a constable
arrived to execute a writ of execution at the North Las Vegas
residence occupied by Lomando Scott. After entering the
house, the constable smelled marijuana and saw Scott stuff
four or five stacks of cash into plastic bags, at which point the
constable promptly called the police. The responding officers
also smelled marijuana, and after conducting a background
check that revealed that Scott had prior felony convictions
involving drugs and guns and had failed to update his address
in violation of state registration requirements, the officers
arrested Scott. Searches of Scott’s person and the
residence—which was owned by Wells Fargo—revealed
$10,000 cash in Scott’s pockets and significant quantities of
drugs and drug paraphernalia in the residence.

    The officers were aware that prior to his arrest Scott had
gone back and forth between the house and his car, loading it
with personal items from inside the house. Although a dog
“sniff-test” did not indicate that there were drugs in the car,
the officers nevertheless searched the automobile, finding a
9mm Glock 17 handgun and approximately 250 grams of
cocaine base.

    Scott was indicted in the District of Nevada for
Possession of a Controlled Substance With Intent to
Distribute, 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii); Felon in
Possession of a Firearm, 18 U.S.C. §§ 922(g)(1), 924(a)(2);
Possession of a Firearm During and in Relation to a Drug
Trafficking Crime, 18 U.S.C. § 924(c); and Possession of a
Controlled Substance With Intent to Distribute, 18 U.S.C.
§§ 841(a)(1), (b)(1)(C). Scott filed a motion to suppress the
handgun and cocaine seized from his car, alleging that the
                 UNITED STATES V . SCOTT                     5

police’s warrantless search of his car violated his Fourth
Amendment rights.

    The magistrate judge set a date for an evidentiary hearing
and established a briefing schedule that called for the
government’s response. Instead of filing a brief addressing
Scott’s motion to suppress, the government filed a one-
paragraph response, stating that “facts in dispute require this
Court to make a determination in order to rule on legal issues
regarding the search Defendant has challenged,” and
requesting the opportunity to “brief the legal issues following
the evidentiary hearing and witness testimony on this matter.”
The magistrate judge denied this request. The magistrate
judge held two evidentiary hearings, at which the government
orally advocated for the inventory search and automobile
exceptions to the warrant requirement. The government also
requested permission to file a written response after the
hearing, a request that was denied by the court. The
government nevertheless filed a motion for leave to file a late
response to Scott’s motion to suppress.

    After conducting the evidentiary hearings, the magistrate
judge issued a Report and Recommendation, recommending
that the government’s late response be stricken and that
Scott’s motion to suppress be granted. In reaching these
conclusions, the court considered the merits of the
government’s arguments with respect to the inventory search
but not the automobile exception. The government filed its
objections to the Report, raising, once again, both the
inventory search and automobile exceptions to the warrant
requirement.

    The district court adopted the magistrate judge’s
recommendations without comment and granted Scott’s
6                UNITED STATES V . SCOTT

motion to suppress. The government timely appealed,
arguing that its warrantless search of Scott’s automobile was
supported by probable cause and was therefore permissible
under the automobile exception to the warrant requirement.
Scott argues in reply that the government waived the
automobile exception argument by failing to raise it in a
written filing by the deadline. The government, in turn,
claims that Scott has waived any claim to waiver by failing to
assert it before the magistrate judge or district court.

                     II. DISCUSSION

    We review the lawfulness of a search and seizure—a
mixed question of law and fact—de novo. United States v.
Mendoza-Ortiz, 262 F.3d 882, 885 (9th Cir. 2001). The
district court’s underlying findings of fact are reviewed for
clear error. Id.

A. Scott Has Not Waived or Forfeited His Waiver Claim

    Waiver is “the intentional relinquishment or abandonment
of a known right,” whereas forfeiture is “the failure to make
the timely assertion of [that] right.” United States v. Olano,
507 U.S. 725, 733 (1993) (internal quotation marks omitted);
see United States v. Castillo, 496 F.3d 947, 952 n.1 (9th Cir.
2007) (en banc). In general, a party may waive waiver
expressly. United States v. Garcia-Lopez, 309 F.3d 1121,
1122-23 (9th Cir. 2002) (finding that a waiver claim was
waived where the government wrote in its answering brief
“the Government . . . now waives the argument . . . that this
appeal was barred by the appeal waiver in Garcia-Lopez’s
plea agreement”); see also United States v. Doe, 53 F.3d
1081, 1083 (9th Cir. 1995) (holding that the waiver argument
was waived when “counsel for the government at oral
                  UNITED STATES V . SCOTT                      7

argument specifically urged the Court to reach the merits of
th[e] appeal”). A party who fails to assert a waiver argument
forfeits—and therefore implicitly waives—that argument.
Norwood v. Vance, 591 F.3d 1062, 1068 (9th Cir. 2009); see
also Tokatly v. Ashcroft, 371 F.3d 613, 618 (9th Cir. 2004)
(holding that an implicit waiver occurred when the party
failed to “argue waiver [and] instead elected to address the
issue on the merits”); Chicano Educ. & Manpower Servs. v.
U.S. Dep’t of Labor, 909 F.2d 1320, 1328 & n.5 (9th Cir.
1990) (holding that waiver was forfeited when “the
Department [did not] make the waiver argument to the
Secretary”).

    Scott has neither waived nor forfeited his waiver
argument. Rather, Scott devoted several pages of his
argument before the magistrate judge to the issue of the
government’s untimely response, specifically indicating at the
discussion’s conclusion that he “wanted to put [his
arguments] on the record.” In his argument, Scott noted both
that “[t]he sanction for failure to file a response is dismissal”
and that permitting the U.S. Attorney to file a response after
the deadline would put “the Defendant and the Court at a
disadvantage.” Moreover, taken in this context, Scott’s
statement that although “[t]he sanction for failure to file a
response is dismissal,” he was “not asking the Court for
dismissal” does not constitute an explicit waiver; the whole
of his argument indicates his intention to prohibit the
government from putting “the Defendant and the Court at a
disadvantage.” Ultimately, the magistrate judge agreed that
permitting an untimely response would prejudice Scott, a
finding noted favorably in Scott’s Response to Government’s
Objections to Report & Recommendation of United States
Magistrate Judge, filed with the district court. Scott has not
waived or forfeited his waiver argument; rather, he has placed
8                 UNITED STATES V . SCOTT

the issue squarely before both the magistrate judge and the
district court.

B. The Government Has Not Waived Its Automobile
   Exception Argument

    Under Federal Rule of Criminal Procedure 12(e), “[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.” Fed. R. Crim. P. 12(e).
Raising a theory to the magistrate judge “during the
evidentiary hearing on the motion to suppress” preserves that
theory for appeal. United States v. Sparks, 265 F.3d 825, 830
n.1 (9th Cir. 2001), overruled on other grounds by United
States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc). In
Sparks, although the defendant did not raise the argument
specifically to the district court, it was sufficient that the
defendant “raised the issue to the magistrate judge and
engaged him in a colloquy about the theory.” Id. Because the
defendant “placed the issue in the record, the district court
had the opportunity to consider and decide this claim.” Id.
Even where a waiver argument may be available, [w]hen a
court rules on the merits of an untimely suppression motion,
it implicitly concludes that there is adequate cause to grant
relief from a waiver of the right to seek suppression.” United
States v. Vasquez, 858 F.2d 1387, 1389 (9th Cir. 1988). In
order to “rule[] on the merits,” the district court must not
merely rule on whether good cause for relief from waiver has
been made; it must determine whether “seized evidence
should have been suppressed.” United States v. Tekle,
329 F.3d 1108, 1112 (9th Cir. 2003).

    In the present case, as in Sparks, the government raised its
automobile exception argument to the magistrate judge
                     UNITED STATES V . SCOTT                              9

during the evidentiary hearing on the motion to suppress.
Because the government raised the automobile exception both
orally and in its filed objections to the magistrate judge’s
report and recommendation, the “district court had the
opportunity to consider and decide the claim.” Sparks,
265 F.3d at 830 n.1 (noting that Sparks’ argument was
preserved despite the fact that it was only raised orally).
Moreover, even if Sparks were not applicable, the magistrate
judge’s Report and Recommendations implicitly forgives any
waiver that may have occurred by reaching the merits of the
government’s allegedly untimely objection to the suppression
motion, finding that “the inventory search was a ruse” and
therefore that “[n]o warrant exception applies here.”
Therefore, under Vasquez and Tekle, the magistrate judge’s
Report—adopted by the district court—implicitly concludes
either that there was no waiver, or that “there is adequate
cause to grant relief from” any waiver that may have
occurred. Vasquez, 858 F.2d at 1389. Because it cannot be
that the government’s automobile exception argument, but
not its simultaneously-raised inventory search argument, was
waived, we conclude that the government has not forfeited its
automobile exception argument or, alternatively, that its
forfeiture was excused.1




 1
    W e do not, however, in any way condone the government’s policy of
deliberately disregarding the filing deadlines to incorporate facts raised
during the hearing into its briefs. As the magistrate judge noted, filing
deadlines serve an important judicial function, and permitting this sort of
strategic disrespect for the rules will disadvantage both defendants and the
court.
10                UNITED STATES V . SCOTT

C. The Warrantless Search Was Permissible Under the
   Automobile Exception

     The Fourth Amendment guarantees “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.” U.S.
Const. amend. IV. Any “place to be searched, and the
persons or things to be seized” must be particularly described,
and be supported by oath or affirmation and probable cause
shown before a warrant may issue. Id. Searches conducted
without a warrant, thus, “are per se unreasonable under the
Fourth Amendment—subject only to a few specifically
established and well-delineated exceptions.” Katz v. United
States, 389 U.S. 347, 357 (1967). The burden of proving that
a warrantless search or seizure falls within an exception to the
warrant requirement is on the government. United States v.
Hawkins, 249 F.3d 867, 872 (9th Cir. 2001). Because the
government has met its burden here, the evidence discovered
in Scott’s automobile should not be suppressed.

    “Under the automobile exception to the warrant
requirement, police may conduct a warrantless search of a
vehicle if there is probable cause to believe that the vehicle
contains evidence of a crime.” United States v. Brooks,
610 F.3d 1186, 1193 (9th Cir. 2010). In determining whether
probable cause exists, this court evaluates the totality of the
circumstances. Id. Because this exception is justified by the
exigency created by the inherent mobility of vehicles as well
as the relatively minimal expectation of privacy that exists
with respect to automobiles, California v. Carney, 471 U.S.
386, 391 (1985), the applicability of the automobile exception
does not turn on whether the car’s owner or driver has already
been taken into custody or the risk of mobility has otherwise
been eliminated, see United States v. Johns, 469 U.S. 478,
                  UNITED STATES V . SCOTT                    11

487-88 (1985) (upholding a search of packages seized from
automobiles where the search occurred three days after police
had arrested the automobile’s occupant); Michigan v.
Thomas, 458 U.S. 259, 261 (1982) (noting that “the
justification to conduct such a warrantless search does not
vanish once the car has been immobilized”); Chambers v.
Maroney, 399 U.S. 42, 52 (1975) (holding, for an impounded
car, that “[t]he probable-cause factor still obtained at the
station house and so did the mobility of the car”); United
States v. Davis, 530 F.3d 1069, 1084 (9th Cir. 2008)
(upholding search of legally parked car that followed the
arrest of that car’s driver); United States v. Hatley, 15 F.3d
856, 858, 860 (9th Cir. 1994) (upholding vehicle search
conducted after police stopped defendant in his vehicle and
returned him to his residence). Thus, if the vehicle is “readily
mobile by the turn of an ignition key, [even if it is] not
actually moving,” and is being “use[d] as a licensed motor
vehicle subject to a range of police regulation inapplicable to
a fixed dwelling,” then “the overriding societal interests in
effective law enforcement justify an immediate search before
the vehicle and its occupants become unavailable,” so long as
there is probable cause. Carney, 471 U.S. at 392-93.

     The government has met its burden of establishing that
the automobile exception to the warrant requirement applies
in this case. Scott has accepted the magistrate judge’s finding
that “law enforcement had probable cause to believe his
vehicle may have contained evidence of a crime,” a finding
that, on this record, has ample support. Moreover, there is no
dispute that the vehicle appeared to be readily mobile and was
being used as a “licensed motor vehicle subject to a range of
police regulation.” Carney, 471 U.S. at 392-93. Accordingly,
the government’s search of Scott’s car was permissible under
the automobile exception to the warrant requirement.
12                UNITED STATES V . SCOTT

                    III. CONCLUSION

    The government presented its substantive arguments
orally at the suppression hearing and in its written response
to the magistrate judge’s Report, and therefore we hold that
those arguments were preserved for appeal. Moreover,
because the police had probable cause to suspect that
evidence of a crime would be found in Scott’s car, which had
the potential for mobility and was being used as a licensed
motor vehicle, we hold that the government’s warrantless
search of Scott’s car was permissible under the automobile
exception to the warrant requirement. Scott’s motion to
suppress should not have been granted.

     REVERSED.



RAWLINSON, Circuit Judge, concurring:

     I concur in the result reached by the majority because, and
only because, neither the magistrate judge nor the district
court judge made a finding that the government had waived
its arguments regarding exceptions to the Fourth Amendment
warrant requirement. See Taylor v. United States, 821 F.2d
1428, 1433 (9th Cir. 1987) (observing that whether waiver of
an issue has occurred “is a question of federal law under the
Federal Rules of Civil Procedure”). Had either the magistrate
judge or the district court judge found a waiver of the
government’s arguments, we would be hard pressed to
disagree. See, e.g., United States v. Helbling, 209 F.3d 226,
237 (3d Cir. 2000) (addressing the waiver of the applicable
statute of limitations and relying on the findings made by the
district court); North Am. Specialty Ins. Co. v. Debis Fin.
                  UNITED STATES V . SCOTT                    13

Servs., Inc., 513 F.3d 466, 470 (5th Cir. 2007) (affirming the
district court’s finding that the insurer waived “the defense of
unseaworthiness”). The only difference between those cases
and this case is that the trial court in those cases made a
finding of waiver. The government has dodged a bullet.
