United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 6, 2015 Decided January 21, 2016 

No. 13-3031 

UNITED STATES OF AMERICA, 

APPELLEE

v. 

EDDIE P. BURROUGHS, 

APPELLANT

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:12-cr-00033-1) 

Sandra G. Roland, Assistant Federal Public Defender, 

argued the cause for appellant. With her on the briefs was 

A.J. Kramer, Federal Public Defender. Tony Axam Jr., 

Assistant Federal Public Defender, entered an appearance. 

Lauren R. Bates, Assistant U.S. Attorney, argued the 

cause for appellee. With her on the brief were Vincent H. 

Cohen, Acting U.S. Attorney, and Elizabeth Trosman, George 

Eliopoulos, and David B. Goodhand, Assistant U.S. 

Attorneys. 

Before: GRIFFITH, MILLETT and PILLARD, Circuit Judges. 

Opinion for the Court filed by Circuit Judge PILLARD. 
2 

PILLARD, Circuit Judge: Eddie Burroughs appeals the 

district court’s denial of his motion to suppress drug-related 

evidence police discovered in his home. District of Columbia 

police officers initially arrested Burroughs for carjacking. 

They searched Burroughs incident to the carjacking arrest and 

discovered evidence implicating him in a robbery. As part of 

their investigation of the robbery, officers searched 

Burroughs’s home pursuant to a warrant and found drugs. 

The United States then prosecuted and convicted Burroughs 

of three counts of possession of illegal drugs with intent to 

distribute them. Burroughs was never prosecuted for 

carjacking; in a preliminary hearing after his warrantless 

arrest, the Superior Court of the District of Columbia found 

that the police lacked probable cause for that arrest. 

Burroughs contends that because the police lacked probable 

cause for the arrest that led to the search warrant, the district 

court should have suppressed the drug evidence as the fruit of 

an illegal arrest. 

Burroughs makes two arguments in support of 

suppression. First, he argues that the district court was bound 

by the superior court’s no-probable-cause determination. 

Because Burroughs did not raise that issue before the trial 

court and did not demonstrate good cause for that failure, we 

assume that plain-error review applies and find none. Second, 

Burroughs argues that the district court clearly erred in 

finding that Burroughs was one of four suspects who fled 

from the stolen car. That finding was not clearly erroneous, 

for it was supported by testimony from an officer whose 

credibility Burroughs does not contest. The district court’s 

finding supplied probable cause for Burroughs’s arrest. 

 
3 

I. 

Just after midnight on November 26, 2011, Officer James 

Haskel of the Metropolitan Police Department flew in a police 

helicopter in pursuit of a suspected stolen car. He tracked the 

car to a parking lot (“the upper parking lot”) in a block in 

southeast Washington.1

 Officer Haskel watched from the air 

as four men bailed out of and fled the car. He gave clothing 

descriptions for three of the four fleeing suspects and directed 

officers on the ground toward them. He reported over the 

radio that all the men were running southeast toward a wood 

line and that one of them made it to another parking lot within 

the block (“the lower parking lot”), which lies southeast of 

where the car had stopped. That man was attempting to walk 

nonchalantly in the lower parking lot. 

Police officers on the ground soon arrested three men 

within the block: Burroughs, Cody Hartsfield, and a juvenile. 

The juvenile was arrested in the woods between the upper and 

lower parking lots. Burroughs was arrested in the lower 

parking lot. Hartsfield was arrested east of the upper parking 

lot in front of a building identified as either 3425 Sixth Street 

or 3425 Fifth Street (the precise street is not relevant). Haskel 

facilitated two of the three arrests—that of the juvenile and 

one other—by shining light on the suspects from the 

helicopter and directing officers on the ground to stop them. 

The parties dispute whether the second person Officer Haskel 

tracked was Burroughs or Hartsfield. The parties do not 

dispute that if Haskel continuously observed Burroughs, the 

police had probable cause to arrest Burroughs for carjacking. 

 

1

 We grant the government’s motion to take judicial notice of a 

Google map. It is a “source[] whose accuracy cannot reasonably be 

questioned,” at least for the purpose of identifying the area where 

Burroughs was arrested and the general layout of the block. Fed. R. 

Evid. 201(b). 
4 

II. 

After Burroughs was arrested for carjacking but before he 

was charged with federal drug offenses, he appeared with 

fellow arrestee Hartsfield for a preliminary hearing before a 

magistrate judge of the Superior Court of the District of 

Columbia. The government’s only witness at that hearing 

was Officer Karane Williams, one of the officers who 

responded to the suspected carjacking. (She did not testify at 

the later suppression hearing in district court.) Officer 

Williams did not personally observe Burroughs’s arrest, but 

she testified that the suspects’ clothing matched the 

descriptions of the suspects Officer Haskel had given from the 

helicopter, and that another officer had seen Hartsfield jump 

over a fence just before he stopped him. The superior court 

found that the police had probable cause to arrest Hartsfield, 

but not Burroughs. 

Burroughs contends that the federal district judge should 

not have decided anew whether there was probable cause for 

Burroughs’s arrest because the superior court judge’s finding 

that the police lacked probable cause was binding on the 

district court. He invokes collateral estoppel and law of the 

case. The government argues that Burroughs failed to 

preserve any such argument and that therefore we may not 

consider it. 

We agree that Burroughs did not preserve his preclusion 

and law of the case arguments, but take no position on the 

consequence of that failure. Whether we are wholly barred 

from reviewing unpreserved suppression arguments absent a 

showing of good cause or whether we may review them for 

plain error is an open question. We need not resolve that 

question here, however, because Burroughs has made no 

attempt at showing good cause, and even assuming plain-error 
5 

review is available, Burroughs has not established that 

denying preclusive effect to the superior court’s determination 

was plain error. 

A. 

 Burroughs did not timely assert that the district court 

was bound by the superior court’s decision. “We have held 

that, ‘while a pretrial motion need not state explicitly the 

grounds upon which a motion is made, it must contain facts 

and arguments that make clear the basis of defendant’s 

objections.’” United States v. Hewlett, 395 F.3d 458, 460 

(D.C. Cir. 2005) (quoting United States v. Mitchell, 951 F.2d 

1291, 1296 (D.C. Cir. 1991)). In the district court, Burroughs 

did not argue, much less “make clear,” that the superior 

court’s probable-cause determination should be accorded 

binding effect. Burroughs characterized his disagreement 

with the government as one based on facts, not law. As he 

put it, “[t]he government does not disagree on the law 

asserted by Mr. Burroughs to support his motion to suppress 

based upon an illegal stop. Instead, the government asserts 

facts in evidence to support probable cause.” See Reply to 

Opposition to Motion to Suppress at 1, United States v. 

Burroughs, No. 1:12-cr-00033-JEB-1 (D.D.C. Oct. 31, 2012), 

ECF No. 52. Burroughs’s counsel contested the probable 

cause for the carjacking arrest by re-canvassing the facts and 

asserting that: Burroughs matched only a general suspect 

description; at the time Burroughs moved to suppress, no 

officer had seen him either in or exiting the stolen car; he did 

not behave suspiciously; and he was not in close physical 

proximity to the stolen car when he was arrested.

It is true that Burroughs and his counsel mentioned the 

superior court’s probable-cause determination in each of their 

three filings (including Burroughs’s supplemental, pro se
6 

reply), but never did they mention “collateral estoppel,” 

“issue preclusion,” “law of the case,” or any of the elements 

of those doctrines, or otherwise suggest that the superior 

court’s probable-cause determination bound the federal 

district court. The closest Burroughs came to asserting 

preclusion was urging the district court to reach the same 

conclusion as the superior court—that there was insufficient 

evidence to support probable cause. He stated, for instance, 

“[t]here was no more probable cause to arrest him on the day 

he was arrested than there was on the day of his preliminary 

hearing.” See Reply to Opposition to Motion to Suppress at 

3. He also stated, “[t]here is no need to revisit the probable 

cause determination and the government still have not m[et] 

the standards for probable cause in their response.” 

Supplemental Pro Se Reply Motion to Suppress at 8, United 

States v. Burroughs, No. 1:12-cr-00033-JEB-1 (D.D.C. Oct. 

31, 2012), ECF No. 53, ex. 1. Those statements make plain 

that Burroughs pointed to the superior court’s conclusion as 

potentially persuasive; he did not argue that it was preclusive. 

B. 

It is not settled whether Burroughs’s failure to raise the 

preclusion argument in his suppression motion bars us 

altogether (in the absence of good cause) from reviewing it on 

appeal, or whether we may give it limited review for plain 

error. We have not expressed a consistent position on the 

standard of review of unpreserved claims, such as this one, 

that come within the ambit of Federal Rule of Criminal 

Procedure 12. Rule 12 requires parties to make certain 

motions in advance of trial, including motions identifying 

defects in an indictment (e.g., multiplicity) or instituting a 

prosecution (e.g., venue, delay), or motions seeking to 

suppress evidence. We have declined to review suppression 

arguments that defendants had not raised before trial when 
7 

defendants failed to show good cause for their failure to do so. 

See Hewlett, 395 F.3d at 460-61; see also United States v. 

Peyton, 745 F.3d 546, 551-52 (D.C. Cir. 2014) (describing 

this practice). But we have also considered whether 

unpreserved claims involve any plain error. See, e.g., United 

States v. Eiland, 738 F.3d 338, 350 (D.C. Cir. 2013). Our 

treatment of other issues under Rule 12 has also been 

inconsistent. For instance, sometimes we have reviewed for 

plain error claims, not raised before trial, that a defendant was 

impermissibly charged more than once for the same offense, 

see, e.g., United States v. Kelly, 552 F.3d 824, 829 (D.C. Cir. 

2009) (reviewing unpreserved double jeopardy challenge for 

plain error), but at other times we have refused to do so, see

e.g., United States v. Weathers, 186 F.3d 948, 952-58 (D.C. 

Cir. 1999) (reading Rule 12’s reference to “waiver” as 

effectuating waiver rather than forfeiture of an unpreserved 

multiplicity challenge). We are not the only circuit to have 

struggled with Rule 12 in this way. See United States v. Soto, 

794 F.3d 635, 649 & n.8 (6th Cir. 2015) (citing cases) (“Rule 

12(e) caused great confusion among circuit courts about how 

the rule restricts appellate review. Prior to the 2014 rule 

revision, we were inconsistent as well.”). 

Rule 12 was recently amended in a manner that may 

affect appellate review. Until 2014, Rule 12 stated that “[a] 

party waives” pretrial motions covered by the rule by not 

raising them before the court’s deadline for those motions. 

Fed. R. Crim. P. 12(e) (effective until Dec. 1, 2014). In such 

a situation, “the court” was permitted to “grant relief from the 

waiver” only for “good cause.” Id. The current version of 

Rule 12, which governs this appeal,2

 no longer uses the term 

 

2

 The new version of Rule 12 applies to Burroughs’s case because 

his case was pending when the new rule took effect. See Supreme 

Court Order Amending Fed. R. Crim. P. 12 (Apr. 25, 2014) (“[T]he 

foregoing amendments to the Federal Rules of Criminal Procedure 
8 

“waiver.” It states instead: “If a party does not meet the 

deadline for making a Rule 12(b)(3) motion, the motion is 

untimely. But a court may consider the defense, objection, or 

request if the party shows good cause.” Fed. R. Crim. P. 

12(c)(3). 

Some circuit courts have read the newly amended version 

of Rule 12—in particular, the deletion of the reference to 

“waiver”—to permit plain-error review when a defendant did 

not intentionally relinquish a claim within Rule 12’s ambit, 

even if the defendant has not offered good cause for his or her 

failure to timely raise it. See United States v. Sperrazza, 804 

F.3d 1113, 1118-21 (11th Cir. 2015); Soto, 794 F.3d at 647-

56. Other circuits review unpreserved Rule 12 issues only 

when the defendant has made a showing of good cause, 

regardless of whether the defendant intentionally declined to 

raise those issues. See United States v. Daniels, 803 F.3d 335, 

351-52 (7th Cir. 2015); United States v. Anderson, 783 F.3d 

727, 741 (8th Cir. 2015). Here, we need not decide which 

standard applies. Under the waiver-absent-good-cause 

standard, Burroughs has made no showing of good cause that 

would allow us to reach his argument. See United States v. 

Williams, 773 F.3d 98, 105 n.3 (D.C. Cir. 2014). And even if 

Rule 12 does permit us, absent good cause, to review 

Burroughs’s unpreserved preclusion argument for plain error, 

Burroughs would have to show that the error was plain. 

C. 

 Burroughs has not carried his burden to establish that the 

district judge plainly erred in finding probable cause for the 

same arrest after the superior court found that there was none. 

 

shall take effect on December 1, 2014, and shall govern in all 

proceedings in criminal cases thereafter commenced and, insofar as 

just and practicable, all proceedings then pending.”). 
9 

It is not “clear” or “obvious,” United States v. Olano, 507 

U.S. 725, 734 (1993), that the district court was precluded by 

either law of the case or collateral estoppel from evaluating 

anew whether the police had probable cause to arrest 

Burroughs for carjacking. 

Indeed, quite the opposite is true when it comes to law of 

the case. That doctrine holds that a “legal decision made at 

one stage of litigation, unchallenged in a subsequent appeal 

when the opportunity to do so existed, [governs] future stages 

of the same litigation, and the parties are deemed to have 

waived the right to challenge that decision at a later time.” 

United States v. Thomas, 572 F.3d 945, 949 (D.C. Cir. 2009) 

(quoting Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739 

(D.C. Cir. 1995)) (alterations in original). As the government 

correctly notes, Burroughs is seeking to bind the courts across 

different cases. Thomas makes clear that the law of the case 

doctrine only applies within the same case. See id. 

 The question whether collateral estoppel applies to the 

superior court’s probable-cause determination is more 

difficult. Burroughs cites no case from this court or the 

Supreme Court confirming that a probable-cause 

determination in a preliminary hearing is entitled to preclusive 

effect in an ensuing criminal prosecution. That does not 

doom Burroughs’s effort, for errors can be plain even in the 

absence of binding case law. See In re Sealed Case, 573 F.3d 

844, 851 (D.C. Cir. 2009). But Burroughs does not succeed 

here because there is no “absolutely clear legal norm,” id.

(quotation marks omitted), establishing his claim. Neither the 

District of Columbia’s rule nor the federal rule expressly 

gives preclusive effect to probable-cause determinations. See

D.C. Sup. Ct. Crim. R. 5(d); Fed. R. Crim. P. 5.1(f). Criminal 

collateral estoppel is generally “an integral part of the 

protection against double jeopardy guaranteed by the Fifth 
10 

and Fourteenth Amendments.” Harris v. Washington, 404 

U.S. 55, 56 (1971) (per curiam). Given that jeopardy had not 

yet attached when Burroughs was before the superior court 

for a determination of probable cause, see Martinez v. Illinois, 

134 S. Ct. 2070, 2074 (2014) (per curiam), it is unclear 

whether any estoppel effect would have yet materialized. We 

need not and do not say for sure whether it had; it suffices that 

it is not plain that a probable-cause determination made in a 

preliminary hearing binds a judge in a subsequent criminal 

proceeding. 

III. 

Burroughs also contends that, in any event, the district 

court erred in finding that the police had probable cause to 

arrest him. “We review the district court’s ‘findings of 

historical fact only for clear error and . . . give due weight to 

inferences drawn from those facts,’ as well as to the district 

court’s determination of witness credibility.” United States v. 

Bookhardt, 277 F.3d 558, 564 (D.C. Cir. 2002) (quoting 

Ornelas v. United States, 517 U.S. 690, 699 (1996)). We 

review de novo the district court’s legal determination that 

there was probable cause. Ornelas, 517 U.S. at 697, 699. 

The district judge denied Burroughs’s motion to suppress 

the evidence found in the search of his home, because the 

police had probable cause to arrest Burroughs for carjacking. 

The court made a factual finding that Burroughs was one of 

the men who had fled the stolen car. Key to that finding was 

the district judge’s determination that Officer Haskel 

“testified very credibly” that he never lost sight of a man who 

exited the stolen car and ran from the upper parking lot 

through the woods to the lower parking lot where Burroughs 

was arrested. Hr’g Tr. 153. 
11 

At the hearing, Officer Haskel traced on a map the path 

he observed one suspect take from the upper parking lot to the 

lower parking lot. He testified that he shined his light on the 

suspect, “directed the officers to stop that guy,” and saw the 

officers “put their hands on him.” Hr’g Tr. 37. When Officer 

Haskel was asked, “did you ever lose sight of [the man 

stopped in the lower parking lot] between the bailout and the 

time he was stopped,” he answered, “[n]o.” Hr’g Tr. 65. A 

different officer, Jeffrey Wade, testified that Burroughs was 

detained in the lower parking lot, right where Officer Haskel 

had indicated he saw the suspect stopped. Officer Wade 

testified that he had learned from other officers that 

Burroughs had been stopped as he was walking away from the 

woods shortly after the bailout. The district judge found that 

Officer Haskel’s testimony was further corroborated by the 

helicopter radio recording, in which Haskel described seeing a 

suspect run southeast through the woods to a parking lot and 

then walk nonchalantly into the parking lot. 

Burroughs contends that Officer Haskel’s testimony does 

not support the district court’s factual finding that Burroughs 

was one of the men in the stolen car because that finding is 

contradicted by other evidence suggesting that Officer Haskel 

facilitated Hartsfield’s arrest rather than Burroughs’s. 

Burroughs points to the fact that Officer Haskel can be heard 

in a recording of the helicopter’s radio telling someone to 

“[s]top that guy right there,” seconds before an officer on the 

ground known only as “Officer 750” stated, “3425, I got one 

stopped.” J.A. 116. It is not disputed that Hartsfield was 

arrested near a building numbered 3425. The only 

permissible conclusion that follows from that excerpt of the 

recording, says Burroughs, is that the man Haskel testified he 

was watching was not him, but Hartsfield. 
12 

Burroughs does not, however, contest the district court’s 

finding that Officer Haskel testified credibly that he aided in 

Burroughs’s arrest. See Oral Arg. Tr. 11:16-11:38 (“[Judge 

Griffith:] So you just have to disbelieve Haskel. Your version 

of events, you just can’t believe Haskel. [Counsel for 

Burroughs:] No, our argument, our version of events is that 

the government failed to explain this discrepancy and it was 

their burden to do so.”); see also id. at 6:20-6:43 (“[Judge 

Pillard]: Do we have to, in order to find for your client, hold 

that...the district judge was clearly erroneous to the extent 

that he found that Haskel was watching Burroughs the whole 

time? [Counsel for Burroughs]: No you don’t.”). The court’s 

finding that Officer Haskel credibly and accurately testified 

that he tracked Burroughs from bailout to arrest suffices to 

support probable cause. 

The district judge acknowledged that Officer Haskel’s 

testimony that he facilitated Burroughs’s arrest was “difficult” 

to “square” with the part of the radio recording that can be 

understood to suggest that Officer Haskel instead assisted in 

Hartsfield’s arrest. Hr’g Tr. 152. That recording, however, 

was reconcilable with Officer Haskel’s testimony. Indeed, the 

district judge offered examples of how. The district judge 

observed, for example, that Officer Haskel and Officer 750 

may not have been talking to each other about the same arrest. 

He explained, 

[Y]ou’ve got a number of people on the air with each 

other, they’re not exactly speaking to each other, it’s 

not a clear conversation. And therefore, maybe when 

[Officer 750 says], “3425 I got one stopped,” [he] is 

not responding to Haskel’s “Stop that guy right 

there,” but [to] a different stop, [to] the stop of Mr. 

Hartsfield.... 
13 

Id. at 152-53. 

Burroughs contends that the evidence does not support 

the district court’s explanation. According to Burroughs, the 

government did not resolve “critical evidentiary 

contradictions” about which arrest Officer Haskel aided—

contradictions he asserts the government could not resolve 

without calling as witnesses the officers who arrested 

Burroughs and Hartsfield. Appellant Br. 30-31. 

We disagree. The government carried its burden to 

establish probable cause by eliciting what was, in the district 

court’s view, credible and persuasive testimony that Officer 

Haskel facilitated the arrest of the suspect Officer Wade 

identified as Burroughs. Officer Haskel’s testimony, coupled 

with Officer Wade’s identification, furnished adequate 

support for the district court’s ultimate factual finding that 

Burroughs was one of the four men who fled the stolen car. 

That finding is bolstered by the radio recording in which 

Officer Haskel described the flight of a suspect toward the 

lower parking lot where Burroughs was arrested. 

Burroughs is right that it is possible to read other parts of 

the radio recording and conclude that Officer Haskel could 

have assisted only in either Burroughs’s or Hartsfield’s arrest, 

but not both, and that the arrest he assisted was Hartsfield’s. 

But it is also possible to conclude from the record—including 

Officer Haskel’s testimony, which the district court 

credited—that Officer Haskel facilitated Burroughs’s arrest. 

“Where there are two permissible views of the evidence, the 

factfinder’s choice between them cannot be clearly 

erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564, 

574 (1985). 

 
14 

IV. 

 For the foregoing reasons, we hold that Burroughs did 

not establish good cause for not raising his preclusion 

argument before the district court and, assuming plain-error 

review applies, the district court did not plainly err by failing 

to give preclusive effect to the superior court’s probable-cause 

determination. And because the district court’s probablecause determination rested on a factual finding that was not 

clearly erroneous, we affirm the district court’s denial of 

Burroughs’s motion to suppress. 

 So ordered.