Government’s failure to certify that appeal is not taken for purpose of delay presents non-jurisdictional question of whether appeal should be heard

APPELLATE PRACTICE/SEARCH & SEIZURE United States v. Lopez, No. 07-3159, ___ F.3d ___ (10th Cir. Mar. 4, 2008)(Kansas). Government appeal of district court order suppressing drug evidence. HELD: Government’s failure to certify that appeal of adverse suppression decision was not taken for purpose of delay, and that suppressed evidence was substantial proof of material fact, does not deprive court of appeals of jurisdiction. Rather, government’s failure presents court with discretionary question of whether appeal should be heard. Purpose of certification requirement is to ensure that government attorneys conduct thorough and conscientious analysis of case before deciding to appeal. Where uncontested affidavits showed that several government attorneys considered and discussed case over extended period of days and showed further that written memorandum analyzing appeal was prepared, government did in fact undertake reasoned pre-appeal analysis of proposed appeal and thereby acted in substantial compliance with certification rule. Read the opinion here.