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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. 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.
Document Info
Docket Number: 11-10529
Citation Numbers: 705 F.3d 410, 2012 U.S. App. LEXIS 24232, 2012 WL 5907476
Judges: Rawlinson, Bybee
Filed Date: 11/26/2012
Precedential Status: Precedential
Modified Date: 11/5/2024