Whether a finding of invited error requires a finding of deliberateness

QUESTION PRESENTED Petitioners Jose Amador and Diana Mekaeil moved to suppress the fruit of law enforcement’s warrantless search of their hotel room. In the motion, they predicted that the government would be unable to bear its burden of establishing an exception to the exclusionary rule. They discussed one exception in particular, but did not fully describe the government’s burden with respect to that exception. But neither did they explicitly urge the district court to hold the government to a lower burden than the law requires. The district court denied the motion in an order that plainly failed to hold the government to its required burden. On appeal, the Tenth Circuit sua sponte held that the petitioners invited the district court’s error by not fully describing the government’s burden, thus precluding appellate review. But the Tenth Circuit did not find that the petitioners deliberately invited error. At least three other circuits require such a finding. The question presented is: Whether a finding of invited error requires a finding of deliberateness.