                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                      UNITED STATES COURT OF APPEALS                  April 2, 2009
                                   TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                      Clerk of Court


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 07-2173
 v.                                               (D.C. No. CR-04-2242-BB)
                                                          (D.N.M.)
 JOSE PEDRO GARCIA,

          Defendant - Appellant.




                              ORDER AND JUDGMENT *


Before O’BRIEN, TYMKOVICH, and HOLMES, Circuit Judges.


      Jose Pedro Garcia was convicted by a jury of being a felon in possession of

a firearm and ammunition. He appeals the denial of his motion to suppress the

weapon and ammunition. In his motion, he argued that there were insufficient

grounds to stop, investigate, and arrest him. At the suppression hearing, the

district court heard testimony from a police detective who testified as to what two

individuals told him, which ultimately led the police to Mr. Garcia. At the



      *
              This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
hearing, Mr. Garcia made no objection to this testimony, but now argues that it

violated his Sixth Amendment right to confront witnesses against him.

      The district court entered judgment against Mr. Garcia. Mr. Garcia timely

filed his notice of appeal. Exercising our jurisdiction under 28 U.S.C. § 1291, we

AFFIRM.

                                 BACKGROUND

      Mr. Garcia was charged with being a felon in possession of a firearm and

ammunition. He filed a motion to suppress this evidence, arguing that there were

“insufficient grounds upon which to stop, investigate and to subsequently arrest”

him. R., Vol. I, Doc. 75, at 1 (Mot. to Suppress, filed Jan. 18, 2007). The district

court conducted a hearing on this motion.

      At the suppression hearing, a then-retired detective testified about an

investigation into another individual (“Suspect A”) for selling narcotics. He

explained that officers were working with a confidential informant (“CI”), who

had arranged to purchase narcotics from Suspect A. The police decided to

conduct this buy and supplied money to the CI for the purchase. Suspect A told

the CI that the purchase would be conducted through two females, and the CI

gave these women the money.

      Suspect A instructed the women to drive to an apartment complex to

complete the transaction, and the officers followed the women to the complex to

observe the transaction. The officers saw a man driving an SUV arrive, enter and

                                        -2-
exit the women’s vehicle, and then drive off. The women went to a pay phone,

and the officers contacted the CI to determine what had occurred. The CI

informed the officers that the women had been robbed. The officers approached

the women and identified themselves as police officers. The women admitted that

they were there to buy drugs, had been in contact with Suspect A, and had been

robbed of the money.

      The officers then took both women to a police substation. The detective

testified that, at the substation, the women indicated that Mr. Garcia was involved

in the robbery and described him as a young, Hispanic man with a shaved head

and tattoo on his neck. Approximately two hours after the women left the

substation, one of them called the detective and told him that Mr. Garcia would

soon be at her apartment complex and described his vehicle. The officers went to

the apartment complex to wait for Mr. Garcia. When Mr. Garcia arrived, the

officers stopped his car and ordered him to get out. When he got out, officers

observed an assault rifle in the vehicle’s front seat.

      The district court denied Mr. Garcia’s motion to suppress the rifle and

ammunition found in his vehicle. The case proceeded to trial, but the detective

did not testify at trial. Mr. Garcia was convicted and sentenced to 240 months of

imprisonment.

      At the suppression hearing, Mr. Garcia did not object to the detective’s

testimony. He now argues that the portion of his testimony in which the detective

                                          -3-
communicated statements made by the two women was inadmissible at the

suppression hearing because it violated his Sixth Amendment right to confront

witnesses. He asserts that the women’s statements were the “only basis for the

police stopping Mr. Garcia” and were inadmissible hearsay under Crawford v.

Washington, 541 U.S. 36 (2004). Aplt. Br. at 12-14.

                                   DISCUSSION

A.    Standard of Review

      Ordinarily, in reviewing a district court’s denial of a motion to suppress,

we consider the evidence in the light most favorable to the government and accept

the district court’s factual findings unless clearly erroneous. United States v.

Cheromiah, 455 F.3d 1216, 1220 (10th Cir. 2006). The ultimate question of

reasonableness under the Fourth Amendment is reviewed de novo. Id. Here, Mr.

Garcia is challenging whether the district court should have permitted certain

testimony by the detective at the suppression hearing, claiming that the testimony

was inadmissible under Crawford v. Washington. However, Mr. Garcia did not

make this argument before the district court. The government contends that the

argument is waived, or at least forfeited. Therefore, we must first address this

contention.

      Waiver is the “intentional relinquishment or abandonment of a known

right,” while “forfeiture is the failure to make the timely assertion of a right.”

United States v. Carrasco-Salazar, 494 F.3d 1270, 1272 (10th Cir. 2007) (internal

                                          -4-
quotation marks omitted). The dispositive element that differentiates waiver from

forfeiture is intent; forfeiture only requires neglect. See United States v. Zubia-

Torres, 550 F.3d 1202, 1205 (10th Cir. 2008) (discussing “the distinction”

between intent and neglect, as evidenced by the waiver and forfeiture concepts,

and noting that “[w]e typically find waiver in cases where a party has invited the

error that it now seeks to challenge, or where a party attempts to reassert an

argument that it previously raised and abandoned below”), petition for cert. filed,

No. 08-9389 (U.S. Mar. 20, 2009).

      Here, there is no indication from the record that Mr. Garcia intentionally

relinquished or abandoned his Crawford argument before the district court.

Because Mr. Garcia simply “fail[ed] to make a proper objection,” this argument

should be considered forfeited and not waived. Carrasco-Salazar, 494 F.3d at

1272 (internal quotation marks omitted). Thus, plain error review applies.

      To establish plain error, Mr. Garcia must establish that the district court (1)

committed error, (2) that was plain, and (3) that affected his substantial rights.

United States v. Dazey, 403 F.3d 1147, 1174 (10th Cir. 2005). If he demonstrates

that all three conditions are met, he must then show that an exercise of the court’s

discretion is appropriate because the error affects the integrity, fairness, or public

reputation of judicial proceedings. Id. at 1174, 1178. If Mr. Garcia demonstrates

that the alleged error is constitutional error, “we relax our analysis on the

remaining elements of plain error review.” Id. at 1174.

                                          -5-
B.    Plain Error Analysis

      We need not resolve whether Crawford’s protection of an accused’s Sixth

Amendment confrontation right applies to suppression hearings, because even if

we were to assume this protection does apply, we would conclude that the district

court’s error cannot be adjudged “plain.” For an error to be plain, it must be

“clear or obvious under current, well-settled law.” Id. (internal quotation marks

omitted).

      There is no binding precedent from the Supreme Court or this court

concerning whether Crawford applies to pretrial suppression hearings. To the

extent that we can divine clues from our case law concerning the resolution of

this issue, they do not benefit Mr. Garcia. See United States v. Miramonted, 365

F.3d 902, 904 (10th Cir. 2004) (decided after Crawford, but without citing it,

holding that “hearsay [testimony] is admissible at a hearing on a motion to

suppress and should have been considered by the district court”); cf. United States

v. Bustamante, 454 F.3d 1200, 1202 (10th Cir. 2006) (“Crawford concerned the

use of testimonial hearsay statements at trial and does not speak to whether it is

appropriate for a court to rely on hearsay statements at a sentencing hearing.”

(emphasis added)).

      Moreover, apparently few federal courts have squarely addressed the issue.

See, e.g., United States v. Morgan, 505 F.3d 332, 338 (5th Cir. 2007) (“[T]he

Fifth Circuit has not decided whether Crawford applies to pretrial proceedings

                                        -6-
and determinations . . . .”); Francischelli v. Potter, No. 1:03-CV-6091-ENV, 2007

WL 776760, at *10 (E.D.N.Y. Mar. 12, 2007) (“[T]he Court can find no authority

applying Crawford to a suppression hearing.”). And Mr. Garcia can find little

solace in the rulings of those courts that have definitively spoken. See, e.g.,

Washburn v. United States, No. 3:05-CV-774 RM, 2006 WL 3715393, at *4 (N.D.

Ind. Dec. 14, 2006) (noting that Crawford’s applicability to pretrial suppression

hearings is “an issue of first impression” in the Seventh Circuit and finding that

defendant’s “reliance on Crawford is misplaced”); United States v. Thompson,

No. 4:05CR00161 HEA(AGF), 2005 WL 3050634, at *6 (E.D. Mo. Nov. 14,

2005) (rejecting Crawford’s alleged applicability to a pretrial suppression

hearing, noting “Crawford does not change the long-standing prior precedent that

permits the use of hearsay in preliminary proceedings dealing with the

admissibility of evidence”). 1

      Accordingly, we cannot conclude that any error by the district court in

failing to apply Crawford in Mr. Garcia’s suppression hearing is “clear or obvious


      1
             The Thompson court observed:

                    There is nothing in the Crawford opinion that suggests
             an intent to change this long-standing principle permitting the
             admission of hearsay at a suppression hearing. Nor is there
             any such suggestion in the cases that followed the March 2004
             Crawford decision. To the contrary, the cases after Crawford
             reaffirm the admissibility of hearsay at suppression hearings.

2005 WL 3050634, at *5.

                                         -7-
under current, well-settled law.” Dazey, 403 F.3d at 1174 (internal quotation

marks omitted); see United States v. Johnson, 183 F.3d 1175, 1179 (10th Cir.

1999) (“Because only one court has addressed this issue and reached a result

contrary to Defendant’s position on appeal, he fails to make the necessary [plain

error] showing [that the error was clear and obvious].”). Mr. Garcia, therefore,

cannot establish the second prong of the plain error test and his appellate

challenge must fail.

                                  CONCLUSION

      For the foregoing reasons, we AFFIRM the district court’s judgment.



                                               Entered for the Court



                                               Jerome A. Holmes
                                               Circuit Judge




                                         -8-
