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9 F3d 1554 United States v. Lewis

9 F.3d 1554

UNITED STATES of America, Plaintiff-Appellee,
v.
Allen Ray LEWIS, Defendant-Appellant.

No. 92-50378.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 20, 1993.*
Decided Oct. 27, 1993.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: BEEZER, KOZINSKI and KLEINFELD, Circuit Judges.

1

MEMORANDUM*

2

Allen Ray Lewis appeals his conviction, following a jury trial for conspiracy and possession with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 846. Lewis contends the district court erred by denying his motion to suppress evidence because the police officers lacked reasonable suspicion to stop the vehicle he was driving. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

3

Fed.R.Crim.P. 12(b)(3) requires defendants to move for suppression of evidence before trial, and failure to do so constitutes a waiver. United States v. Restrepo-Rua, 815 F.2d 1327, 1329 (9th Cir.1987). Furthermore, "[j]ust as a failure to file a timely motion to suppress evidence constitutes a waiver, so too does a failure to raise a particular ground in support of a motion to suppress." Id.

4

Here, Lewis timely moved to suppress evidence on the grounds that the police did not have probable cause to search the car he was driving. Lewis' failure to assert the unreasonableness of the detention before the district court, however, served to waive that ground for objection. See id. Therefore, we do not reach the issue.

5

Anticipating this outcome, Lewis asserts that he was denied effective assistance of counsel because his counsel failed to raise the detention issue. Because the record before us does not adequately permit resolution of this question, we decline to address it on direct review. See United States v. Bosch, 951 F.2d 1546, 1549 (9th Cir.1991), cert. denied, 112 S.Ct. 2975 (1992); see also Restrepo-Rua, 815 F.2d at 1329.

6

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3