United States v. Casper , 332 F. App'x 222 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 14, 2009
No. 06-11381
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRIAN KEITH CASPER,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Texas, Fort Worth
On Remand from the
Supreme Court of the United States
Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
The facts and proceedings are set forth in this panel’s initial opinion,
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 06-11381
United States v. Casper, 536 F.3d 409 (5th Cir. 2008), vacated and remanded,
129 S. Ct. 2156 (2009). The remand was for further consideration in light of Ari-
zona v. Gant, 129 S. Ct. 1710 (2009).
Before this panel heard oral argument on remand, we requested letter
briefs on the impact of Gant. The government responded in part as follows:
In Gant, the Supreme Court narrowed the scope and applicability
of automobile searches incident to arrest. On remand, this Court
should affirm the judgment of the district court in all respects. Not-
withstanding the holding in Gant, the district court did not err in
denying Casper’s motion to suppress, as the good faith exception to
the exclusionary rule applies under the facts of the case. In the al-
ternative, the Court should remand the case for an evidentiary hear-
ing on the government’s claim of inevitable discovery previously as-
serted in the district court.
The government further recognized that “the May 2005 search of Casper’s vehi-
cle is not authorized as a search incident to arrest under Gant.” It requests that,
if this court decides that the good faith exception to warrantless searches does
not apply, the case be remanded for an evidentiary hearing on the government’s
claim of inevitable discovery.
In his supplemental letter brief, Casper argues for reversal under Gant.
“Alternatively, he respectfully prays that this Court remand for an evidentiary
hearing regarding the legality of all evidence seized May 11, 2005.” In a letter
replying to the government’s letter, however, Casper argues that the government
has waived a hearing for failure to request one initially in the district court.
Casper’s waiver argument has no merit. The government argued all along
that the evidence would inevitably have been discovered, so the argument is
properly preserved. See R. 105-10.
The applicability of the good faith exception is far from obvious. We need
not decide that question now, however, because that issue becomes irrelevant if
it is determined that the evidence in question would have been inevitably discov-
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No. 06-11381
ered. We remand for an evidentiary hearing and decision by the district court
on whether the evidence seized on May 11, 2005, would have been inevitably dis-
covered. This is a limited remand, and we retain jurisdiction.1
This matter is therefore REMANDED for the district court to conduct an
evidentiary hearing and whatever other proceedings it deems appropriate for a
determination of the issue of inevitable discovery.
1
See United States v. Runyan, 275 F.3d 449, 466-67 (5th Cir. 2001) (“We retain juris-
diction . . . and make a limited remand . . . to the district court to make findings of fact addres-
sing: (1) whether the police would have sought the warrants . . . and (2) whether the magis-
trate judge would have issued the warrants . . . .”); United States v. Delancey, 190 F. App’x 376
(5th Cir. 2006) (per curiam) (retaining jurisdiction while remanding for reasons for sentencing
departure); United States v. Arnold, 8 F.3d 21 (5th Cir. 1993) (table) (retaining jurisdiction
while remanding for determination of excusable neglect in filing). See also United States v.
Parker, 722 F.2d 179, 185 (5th Cir. 1983) (ordering remand for evidentiary hearing to decide
applicability of independent source exception or inevitable discovery exception), overruled on
other grounds by United States v. Hurtado, 905 F.2d 74, 75-76 (5th Cir. 1990) (en banc).
3