IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-40182

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN FERNANDO CHAVEZ-VALENCIA,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the

Southern District of Texas, McAllen

_________________________________________________________________ June 11, 1997

Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Juan Fernando Chavez-Valencia appeals his conviction,

contending that certain evidence should have been suppressed at

tria l. We hold that because Chavez failed to file a pretrial

motion to suppress in accordance with Rule 12(b)(3) of the Federal

Rules of Civil Procedure, he has waived the point for appeal and we

are barred from considering it. Chavez also contends that he

received in effective assistance of counsel. Again he failed to

raise the claim at trial. Chavez’s conviction is therefore

affirmed.

I

Two border patrol agents, who were spending thei r early

morning shift watching for undocumented workers, spotted a Suburban2

being driven on a rural road. The agents were approximately 9

miles south and 8 miles west of the Falfurrias, Texas border

checkpoint. The agents' suspicions were aroused because the

veh icle was driving in the early morning on a road that allows

vehicles to b ypass the border checkpoint. After the vehicle

appeared to stop, the agents drove towards it. The vehicle began

to move again, and when it passed th e border patrol agents, one

a gent believed he recognized it from a previous encounter

.

Although the agents could not see the driver, or determine whether

there were any passengers, they pulled over the vehicle. One of

the agents recognized the driver, Chavez, and remembered that an

arrest warrant for Chavez was outstanding.

The agents brought Chavez to the Falfurrias checkpoint, and a

search revealed several items, including a money order and personal

notes, that supported the agents' conclusion that Cha vez was

smuggling people into the United States. This evidence was

eventually used to convict Chavez. The agents then returned to

inspect the Suburban. In the back of the vehicle was fresh mud and

a small bag of women's clothes. After inspecting the vicinity

where the Suburban had stopped, they found a fresh set of

footprints. A search located five persons. All were foreign

nationals illegally in this country. Chavez was convicted of

conspiracy to illegally bring foreign nationals into the United

States in violation of 18 U.S.C. § 371.3 II

On appeal, Chavez mai ntains that the border agents did not

have probable cause to stop his v ehicle, and, therefore, all

evidence found as a result of this stop must be suppressed.

Chavez, however, failed to raise this claim in a pretrial motion,

as required by Fed. R. Crim. P. 12(b)(3) and 12(f). He also failed

to raise the issue at anytime during the trial. Nonetheless,

Chavez maintains that he may raise his suppression claim for the

first time on appeal. The government contends the defendant's

failure t o raise properly his suppression claim at trial

constituted a waiver and bars the issue on appeal.

We find that the plain language of Rules 12(b)(3) and 12(f),

the history of the rules relating to motions to suppress, the

relevant Fifth Circuit case law and sound policy considerations all

dictate that the failure to raise a suppression issue at trial

forecloses a defendant from raising the issue for the first time on

appeal.1 Rule 12(b) provides:

(b) Pretrial Motions. Any defense, objection, or

request which is capable of determination with out the

trial of the general issue may be raised before trial by

motion. Motions may be written or oral at the discretion

of the judge. The following must be raised prior to

trial:

(1) Defenses and objections based on defects

in the institution of the prosecution; or

(2) Defenses and objections based on defects

in the indictment or information (other than

that it fails to show jurisd i ction in the

court or to charge an offense which objections

shall be noticed by the court at any time

during the pendency of the proceedings); or

(3) Motions to suppress evidence; or

(4) Requests for discovery under Rule 16; or

(5) Requests for a severance of charges or

defendants under Rule 14.

2 Rule 12(f) provides:

(f) Effect of Failure To Raise Defenses or Objections.

Failure by a party to raise defenses or objections or to

make requests which must be made prior to trial, at the

time set by the court pursuant to subdivision (c), or

prior to any extension thereof made by the court, shall

constitute waiver thereof, but the court for cause shown

may grant relief from the waiver.

4 III

Rule 12(b)(3) requires that motions to suppress evidence

“must” be raised before trial. 1 Rule 12(f) provides that failing

to raise a 12(b)(3) motion prior to trial "shall constitute waiver

thereof, but the court for cause shown may grant relief from the

waiver." 2 Fed. R. Crim. P. 12(f)(emphasis added).5

We have held that once a right is waived at trial, it may not

be resurrected on appeal. S ee Douglass v. United Services Auto.

Ass'n

, 79 F.3d 1415, 1418 (5th Cir. 1996) (en banc); United States

v. Calverley , 37 F.3d 160, 162 (5th Cir. 1994), cert. denied , 115

S.Ct. 1266 (1995); see also

, United States v. Olano

, 507 U.S. 725,

732, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993). Therefore, if

the words used in Rules 12(b)(3) and 12(f), particularly the word

“waiver,” are to be given their generally accepted m eaning, a

defendant who fails to present a timely pretrial motion to suppress

evidence is foreclosed from raising the issue on appeal.

Normally, our analysis would stop here with the unmistakable

language of the rule, except for a sort of definitional paradox.

The term waiver ordinarily suggests the intentional relinquishment

or abandonment of a known right. S ee, e.g.

, Calverley

, 37 F.3d at

162. Practically speaking, however, a defendant’s failure to

follow Rule 12 usually is not an intentional abandonment of the

right of suppression. Surely today, we have no basis on the record

before us to conclude that such is the case with Chavez.

Therefore, in the following pages we carefully examine whether the

use of the word “waiver,” as applied to motions to suppress in Rule

12, must be interpreted to have its usual legal consequences. This

analysis leads us to the conclusion that a defendant who fails to

make a timely suppression motion cannot raise the claim for the

first time on appeal. As we will show, this conclusion is

supported by the language, history and structure of Rules 12(b)(3)3 Nonetheless, some Fifth Circuit cases have suggested that

even under the old Rule 41(e), failure to raise a timely

suppression motion results in wavier. S ee, e.g.

, Garcia v. United

States , 315 F.2d 133 (1963)(holding that when defendant failed to

raise a timely suppression motion on Rule 41(e), "he waived any right he might have had to assert that the evidence against him was obtained by illegal search and seizure."); but see

, United States

v. Love , 472 F.2d 490, 497 (5th Cir. 1973)(quoting, in dicta, 3

6 and 12(f), by Fifth Cir cuit precedent, by the case law of our

sister circuits, and by sound policy considerations.

IV

The history of the rule relating to suppression of evidence

supports giving the term “waiver” its usual meaning. Originally,

suppression motions were addressed in Fed. R. Civ. P. 41, entitled

“Search and Seizure.” Rule 41(e) provided that "[a] person

aggrieved by an unlawful search and seizure may move the district

court

. . . to suppress [unlawfully obtained evidence]. The motion

shall be made before trial or hearing unless opportunity therefor

did not exist or the defendant was not aware of the ground for the

motion, but the court in its discretion may entertain the motion at

the trial or hearing."

Rule 41(e) did not explicitly identify the penalty of “waiver”

for failing to make a proper pretrial suppression motion.

Ordinarily, in the absence of explicit language or reasons to the

contrary, the failure to claim a right at trial constitutes a

forfeiture, not a waiver, of that right for the purposes of appeal.

Thus at the outset a failure to move to suppress evidence

o rdinarily would have been treated as a “forfeiture.” 3 There is,Wright, Federal Practice & Procedure, § 856: "Even without either

a pretrial motion or an objection at trial, the appellate court may

consider whether evide nce was illegally obtained if it is clear

from the record that plain error was committed.")

7 of course, a significant difference between the two: A defendant

who has forfeited a claim may appeal, but the claim is subjected to

plain error review. See Olano , 507 U.S. 725, 113 S.Ct. 1770. In

contrast, a claim that is waived is barred on appeal. Id.

The suppression rule did not, however, remain static. In

1972, the rule was moved to Rule 41 (f), which provided in its

entirety: “A motion to suppress evidence may be made in the court

of the district of trial as provided in Rule 12.” This amendment

meant that suppression mo tions became governed by Rule 12(b)(1).

This rule, however, simpl y provided that “[a]ny defense or

objection which is capable of det ermination without the trial of

the general issue may be raised before the trial by motion.”

(Emphasis added.) Thus under the 1972 amendment, suppression

motions were not yet placed under Rule 12(b)(2), which addressed

motions that were required to be raised prior to trial, on penalty

of waiver. After the 1972 amendment, only two motions were

governed by this section: objections based on defects in the

institution of the prosecution and objections based on defects in

the indictment.

In 1974, the Rules were again revised. These revisions

resulted in the current Rule 12. The rule for filing a suppression

motion was moved from 41(f) to Rule 12. Furthermore, suppression4 The comments to the amendment note:

[Rule 12] (b) is changed to provide for some additional

motions and requests which must be made prior to trial.

Subdivisions (b)(1) [relating to defects in the

institution of the pros ecution] and (2) [relating to

defenses and object ions based on defects in the

indictment] are restatements of the old rule.

Subdivision (b)(3) makes clear that objections to

eviden ce on the ground that it was illegally obtained

must be raised prior to trial.

8 motions were no longer included among motions that may be raised at

trial; they were listed as mo tions under 12(b) that m ust be made

before trial. 4 Rule 12(f) specifically provides that the failure

to raise an objection that must be made before trial is waived.

Consequently, under the current Rule 12, motions to suppress

are now given identical treatment as motions based on defects in

the institution of the prosecution and motions based on defects in

the indictment. As noted above, these two claims historically have

been foreclosed on appeal if not first raised in the district

court. It therefore seems to us that the intent of the drafters to

give the term “waiver” its ordinary meaning as it applies to

motions to suppress is pellucid.

V

Fifth Circuit case law also suggests that a suppression claim

not properly raised in the district court cannot be raised on

appeal. We have recognized that a district court may reject a

tardy suppression motion solely on the grounds of its untimeliness

.

In United States v. Knezek , 964 F.2d 394, 397-399 (5th Cir. 1992)9

a defendant moved for suppression of evidence after the d eadline

for pretrial motions, but three days before the start of the trial.

The district court ruled that the defendant had waived his right to

challenge evidence. In K nezek we held that a "district court does

not abuse its discretion under Rule 12(f) in denying a suppression

motion solely on the grounds that the defendant failed to comply

with pretrial procedures." Id. at 397 (emphasis added).

In United States v. Marx

, 635 F.2d 436, 440-42 (5th Cir. Unit

B 1981), a district court exercised its authority to hear a tardy

suppression motion un der Rule 12(f). In affirming the district

court's denial of the suppression motion, we observed that "the

district court would not have abused its discretion under Rule

12(f) if it had denied the motion s olely on the ground of

appellants' non-compliance with pre-trial procedure." I d.

(emphasis added). S ee also

, United States v. Bullock

, 590 F.2d

117, 120 (5th Cir. 1979)(noting "the district court would not have

abused its discretion under Rule 12(f) if it had denied defendant's

various suppression motions relying solely on defendant's failure

to comply with pretrial procedures.").

These cases indicate that it is within the power of the

district court to bar our review on the merits of a motion to

suppress solely on the basis of a defendant’s failure to comply

with Rule 12. We have therefore established the rule in this

circuit that the failure to follow the procedural requirements of5 See

, Elkins v. United States

, 3 64 U.S. 206, 217, 80 S.Ct.

1437 (1960) (exclusionary rule "is calculated to prevent, not to

repair"); see also

, Stone v. Po well , 428 U.S. 465, 486, 96 S.Ct.

3037, 3048, 49 L.Ed.2d 1067 (1976) (exclusionary rule "is not a

personal constitutional right"); United States v . Calandra , 414

U.S. 338, 347-48, 1261, 94 S.Ct. 613, 619-20, 38 L.Ed.2d 561 (1974)

(exclusionary rule is not "a personal constitutional right of the

party aggrieved").

10 Rule 12 can result in barring the court of appeals from considering

the merits of the suppression claim.

VI

In addition to the rule’s precise language, the history of the

rule, the support from our precedent and policy considerations all

militate in favor of precluding a defendant from raising a

suppression issue not properly ra ised in the district court.

First, we note that suppression of evidence is not devised so much

a personal right of the defendant, but, instead, as an incentive to

protect the public against an ove r -aggressive police force. 5

Consequentially, the Supreme Court has r efused to apply the

exclusionary rule for Fourth Amendment violations where the costs

of its implementation outweighs the benefit gained by deterrence of

future violations. U nited States v. Leon

, 468 U.S. 897, 104 S.Ct.

3405, 82 L.Ed. 29 677 (1984).

Allowing appellate review of suppression claims not raised in

the district court inflicts a significant cost on the criminal

justice process. If, at trial, the government assumes that a

defendant will not seek to suppress certain evidence, the

government may justifiably conclude that it need not introduce the11

quality or quantity of evidence needed otherwise to prevail. Also,

on appeal the government will be forced to rely on an

underdeveloped record in defending itself.

Moreover, if a suppression motion is made before trial, the

government may appeal an adverse ruling. In contrast, if the court

considers suppression motions after jeopardy attaches, the

government loses this right. The Eleventh Circuit has recently

emphasized the importance of this point. In U nited States v. Ford

,

34 F.3d 992, 994 n.2 (11th Cir. 1994), the defendant, Ford, "argued

[his suppression motion] for the first time in court, after the

jury had been sworn. Had the district court entertained

Ford's . . . arguments at that time, after jeopardy had attached,

the government would have lost its right to appeal an adverse

ruling on suppression." I d. The court therefore held that the

defendant's motion was untimely and not preserved for appeal. S ee

also

, United States v. Nunez , 19 F.3d 719, 723 (1st Cir. 1994).

Finally, little deterrence of unacceptable police conduct

is lost by refusing to review suppression claims not raised in the

district court. As Judge Wiley, of the D.C. Court of Appeals, once

wrote, "[to allow an suppression motion to be considered for the

first time on appeal,] we would have to imagine a policeman tempted

to make an unconstitutional search or seizure pausing to think and

then being dissuaded by the consideration t hat the prospective

defendant, if he is so unlucky as to have a lawyer who commits

plain error in failing to file a timely pretrial suppression6 This interpretation of Rule 12 is further supported by Rule

12(e), which provides "[a] motion made before trial shall be

det ermined before trial unless the court, for good cause, orders

that it be deferred for determination at the trial of the general

issue or until after verdict, but no such determination shall be

deferred if a party's right to appeal is adversely affected."

12 mot ion, will have another bite at the apple." U nited States v.

Brown

, 663 F. 2d 229, 238 (D.C. Cir. 1981)(en banc)(Wiley, J.

concurring). 6

VII

Finally, our holding today is consistent with a majority of

other circuits that have addressed this question, notwithstanding

some intra-circuit conflicts that will be noted below:

United States v. McDowell

, 918 F.2d 1004, 1009 (1st Cir. 1990)

(failure to file pretrial suppression motion resulted in waiver,

and therefore merits will not be considered on appeal); see also

,

U nited States v. Nunez , 19 F.3d 719, n.10 (1st Cir.

1994)(commenting “[f]ew courts have squarely considered whether a

Rule 12(f) waiver obviates 'plain error' review under Rule 52(b).

A number of c ourts have proceeded with 'plain error' review,

however, without discussing the impact of Rule 12(f) waiver.

. . .

In any event, our precedent does not require 'plain error' review

in circumstances where reliable review has been rendered impossible

by inadequate development at the district court level.

. . .").

United States v. Ulloa

, 882 F.2d 41, 43 (2d Cir. 1989) ("The

Federal Rules of Criminal Procedure and our cases make clear that

a motion to suppress evidence must be made before trial and failure13

to make such a motion constitutes waiver

. . . . The lawfulness of

the seizures is therefore not available for consideration on

appeal" (internal citations omitted)). United States v. Randolf

,

27 F.3d 564 (4th Cir.)(failure to raise timely pretrial suppression

motion resulted in waiver), cert. denied

, 513 U.S. 942 (1996);

United States v. Badwan

, 624 F.2d 1228, 1231 (4th Cir. 1980)(same).

United States v. Vincent

, 20 F.3d 229, 234 (6th Cir. 1994)(applying

plain error standards to a claim that was raised for the first time

on appeal, but refusing to consider a suppression issue that was

not raised below: "under Federal Rule of Criminal Procedure

12(b)(3), defendant was required to raise suppression issues prior

to trial, and because failure to do so constituted a waiver of this

claim, Fed.R.Crim.P. 12(f), we are precluded from considering his

claim on appeal."); U nited States v. Obiuk wu , 17 F.3d 816, 819

(6th Cir. 1994)(holding that failure to file a timely suppression

motion constitutes waiver, and therefore refusing to address merits

of claim); but see

, United States v. Buchanon , 72 F.3d 1217 (6th

Cir. 1995)(noting that although a defendant did raise a suppression

issue because he did not argue it with sufficient specificity it

was "forfeite d"; nevertheless, the court applies plain error

review, citing Olano , 507 U.S. 725). United States v. Kimberlin

,

805 F.2d 210 (7th Cir. 1986)(refusing to rule on the merits of a

Rule 12(b)(2) motion, noting the right to raise the issue was

waived when defendant failed to fil e pretrial motion); b ut see

,

United States v. Wesson

, 33 F.3d 788, 794 (7th Cir. 1994)(noting14

that plain error is to be applied when a defendant fails to raise

a suppression issue prior to trial), cert. denied

, Steel v. United

States

, 513 U.S. 1100 (1995). U nited States v. Moore

, 98 F.3d 347,

351 (8th Cir. 1996) (court applies plain error standard, however,

the case is ambiguous, and it is possible that the defendants

argued the suppression issue at trial). U nited States v. RestrepoRua

, 815 F.2d 1327, 1329 (9th Cir. 1987)(failing to reach the

merits of a defendant's argument, noting "[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"); United States v.

Hernandez-Ochoa

, 50 F.3d 17 (9th Cir. 1995)(defendant fail ed to

preserve suppression issue for appeal by failing to object in a

pretrial motion). U nited States v. Dirden

, 38 F.3d 1131, 1139 n.10

(10th Cir. 1994) (refusing to hear a suppression claim, even though

a pretrial suppression motion considered other is sues); U nited

States v. Uribe-Galindo

, 990 F.2d 522, 525 (10th Cir.

1993)(refusing to address merits of suppression issue, noting the

failure to raise timely objection to suppression issue constitutes

waiver); but see

, United States v. Dewitt

, 946 F.2d 1497, 1502

(10th Cir. 1991)(holding that waiver applies when defendant failed

to include particular arguments in his pretrial suppression motion,

but also noting that "defendant has not attem pted to demonstrate

plain error")

. Ford , 34 F.3d at 994 n.2 (refusing to hear a

defendant's suppression motion, noting that allowing a late motion

would preclude the government from appealing an adverse decision);15

but see

, United States v. Milian-Rodriguez

, 828 F.2d 679, 683-84

(11th Cir. 1987)(district court held that a suppression motion was

waived as untimely, but ruled in th e alternative that the

suppression motion was without merit; the appellate court held that

the district court's consideration of the merits did not excuse the

waiver, and that the district court's conclusion on the merits was

not plain error. The court provided no explanation or authority

for applying the plain error standard). U nited States v. Sobin

, 56

F.3d 1423, 1427 (D.C. Cir.)(failing to consider merits of

suppression issue after finding the defendant failed to make a

timely motion), cert. denied , 116 S.Ct. 348 (1995); United States

v. Mangieri

, 694 F.2d 1270, 1282 (D.C. Cir. 1982)(same); Brown

, 663

F.2d 229(by failing to file a pretrial motion, the defendant waived

his right to appeal a suppression claim).

VIII

Turning to the second issue raised in this appeal, Chavez also

argues that his trial counsel rendered ineffective assist ance by

failing to file a proper pretrial suppression motion. "As a

general rule, Sixth Amendment claims of ineffective assistance of

counsel cannot be litigated on direct appeal, unless they were

adequately raised in the district court." U nited States v. Gibson

,

55 F.3d 173, 179 (5th Cir. 1995); United Stat es v. Phillips , 664

F.2d 971, 1040 (5th Cir. 1981). Chavez failed to object to trial

counsel's performance at the district court. Nevertheless, this

court may consider a claim regarding competency of trial counsel if16

the record provides sufficient detail about the attorney's conduct

to allow the court to make a determination of the merits of the

claim. I d. ; United States v. Saenz-Forero

, 27 F.3d 1016, 1019 (5th

Cir. 1994)(record sufficiently detailed to allow review); Phillips

,

664 F.2d at 1040 (5th Cir. 1981)(record sufficiently detailed where

after the com pletion of the trial, defendant objected to

effectiveness of counsel, and counsel provided a "point-by-point"

rebuttal of defendant's charge); United States v. Brown , 591 F.2d

307, 310 (5th Cir. 1979)(holding that the defendant waived his

right to counsel, but also noting, in dicta, that the record was

sufficiently detailed to all the court to find defendant received

adequate counsel).

Failure to file a suppression motion does not constitute per

se ineffective assistance of counsel. Kimmelman v. Morrison , 477

U.S. 365, 384, 106 S.Ct. 2574, 2587-88 (1986). It may be that the

failure to raise the suppression issue was a strategic decision.

Defense counsel "is not required automatically to file a

suppression motion in every case involving evidence or statements

obtained after a search; rather, counse l must use 'professional

discretion in deciding whether there are sufficient grounds' for

such a motion." United States v. Aulet , 618 F.2d 182, 187-88 (2d

Cir. 1980). Without knowing the reason for failing to file a

pretrial motion, this court is not positioned to review the

competency of representation Chavez received. Therefore, Chavez’s7 B ecause we do not reach the merits of either of Chavez’s

claims, we dismiss his motion to notice certain facts as moot.

17 app eal on this ground is DENIED without prejudice to collateral

review. 7

IX

In conclusion , the plain language of Rule 12(b) and Rule

12(f), the histor y of the rules relating to suppression motions,

Fifth Circuit case law, case law from the majority of our sister

circuits, and sound policy considerations convince us that

appellate review is barred when a defendant does not raise a

suppression claim in accordance with the Federal Rules of Criminal

Procedure. In view of the undeveloped record, we also decline to

review the appellant’s contention t hat he received ineffective

assistance of counsel.

For the reasons noted above, the judgment of the district

court is

A F F I R M E D.