concurring in part, dissenting in part, and concurring in the judgment.
I join in the dissents of Judge Beam and Judge Riley to the extent they conclude part II of the Court’s analysis is flawed. But I concur in the Court’s judgment affirming the district court’s denial of Lucas’s motion to suppress the evidence found at Lucas’s primary residence because, in my judgment, while the administrative warrant was invalid, the Leon8 *784good-faith exception to the exclusionary-rule saves the evidence. Finally, I concur in part III of the Court’s opinion, which addresses the remainder of the issues raised in this appeal.
I
The majority contends “the [Government has never claimed that Lucas had a reasonable expectation of privacy in Scaife’s apartment” and therefore did not waive “its right to argue that he lacked a reasonable expectation of privacy.” Ante at 779 n. 5. Why would the government ever argue a defendant had a reasonable expectation of privacy? Such an argument would be raised by a defendant challenging a warrantless search, not by the government where the government claims the search was executed pursuant to a valid warrant.
In fact, Lucas argued, in his pre-trial briefing prior to the suppression hearing, that he had “standing to challenge the officers’ warrantless entry of the residence to effect his arrest” based on his status as an overnight guest at his girlfriend’s house. Def.’s Br. Support Mot. Suppress at 2. Did the Government challenge this claim of standing? No. Instead, the Government responded: “A valid arrest warrant ‘carries with it the authority to enter the residence of the person named in the warrant in order to execute the warrant so long as the police have a reasonable belief that the suspect resides at the place to be entered and that he is currently present in the dwelling.’ ” Gov’t Br. Opposition Mot. Suppress at 5 (quoting United States v. Clayton, 210 F.3d 841, 843 (8th Cir.2000)). The Government also argued in the alternative that Lucas’s girlfriend had given consent to search the premises, quoting United States v. Matlock, 415 U.S. 164, 170, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974): “[T]he consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.” Far from leaving open the door that Lucas lacked a reasonable expectation of privacy at the residence, the focus of the testimony elicited by the Government at the suppression hearing went to show law enforcement officers arrested Lucas at his primary residence — proof that supported the Government’s position the law enforcement officers had a reasonable belief Lucas resided there, which, coupled with a valid arrest warrant, would make the search of the premises valid. In other words, all along, the premise underpinning the Government’s defense of the search was that Lucas’s standing to challenge a warrantless search (which was accepted by the Government) was irrelevant because officers possessed a valid arrest warrant and possessed a reasonable belief he was at the premises searched.
At oral argument before the panel in this case, the Government conceded it had never before argued Lucas lacked a reasonable expectation of privacy due to his escapee status:
Judge Beam: As an escapee from custody, was a warrant necessary?
Government: Well, your honor, at this point in time that is, that’s an issue and—
Judge Beam: It, well, it wasn’t an issue that you raised, was it?
Government: No. It wasn’t.
The Government further volunteered at oral argument before the panel that the only issues raised concerning the suppression issue were (1) whether the arrest warrant was valid, and (2) if not valid, whether the officers relied on the warrant in good faith. The record demonstrates the Government presented its Johnny-come-lately theory — in essence, that the Director of Correctional Services is detached and neutral enough for the purposes of issuing an arrest warrant because *785an escapee lacks a reasonable expectancy of privacy anywhere — for the first time in its petition for rehearing en banc.
Generally, both the government and defendants are barred from raising Fourth Amendment arguments for the first time on appeal. See, e.g., United States v. Alvarez-Sanchez, 511 U.S. 350, 360 n. 5, 114 S.Ct. 1599, 128 L.Ed.2d 319 (1994) (“Finding no exceptional circumstances that would warrant reviewing a claim that was waived below, we adhere to our general practice and decline to address respondent’s Fourth Amendment argument.”); Giordenello v. United States, 357 U.S. 480, 487, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958) (finding, where the government defended the legality of the petitioner’s arrest “by relying entirely on the validity of the warrant,” to allow the government to argue for the first time before the Supreme Court that even a warrantless arrest would have been valid “would unfairly deprive petitioner of an adequate opportunity to respond”); United States v. Nee, 261 F.3d 79, 86 (1st Cir.2001) (holding, by failing to raise it to the district court, the government waived its argument the subjective intent of the officers was irrelevant for establishing probable cause); United States v. 22249 Dolorosa St., 167 F.3d 509, 512 (9th Cir.1999) (holding the government waived its argument on appeal that the defendant did not have standing to challenge a search when it failed to raise the argument to the district court); United States v. Gonzales, 79 F.3d 413, 419 (5th Cir.1996) (per curiam) (holding the government waived its standing argument when it was put on notice the defendant would claim a privacy interest).
As Judge Beam explains in his dissent, in Steagald v. United States, the Supreme Court determined that the government had waived its right to raise a standing issue in circumstances similar to those presented here. 451 U.S. 204, 208-11, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). In reaching its conclusion, the Steagald Court stated:
the Government was initially entitled to defend against petitioner’s charge of an unlawful search by asserting that petitioner lacked a reasonable expectation of privacy in the searched home.... The Government, however, may lose its right to raise factual issues of this sort before this Court when it has made contrary assertions in the courts below, when it has acquiesced in contrary findings by those courts, or when it has failed to raise such questions in a timely fashion during the litigation.
Id. at 209-10, 101 S.Ct. 1642, quoted with approval and applied in United States v. Morales, 737 F.2d 761, 764 (8th Cir.1984). Here, the Government referenced case law and facts at the suppression hearing and in defense of the magistrate’s report and recommendation that show its theory of the case was Lucas lived at the house entered and it was his “primary residence.” The Government arguably benefited from similar testimony at trial in linking Lucas to the drugs and firearm found at the residence (as opposed to Lucas’s theory that someone else had placed the firearm in the residence). The Government also made no objection to the district court’s finding Lucas was a co-occupant of the residence. Moreover, the Government acquiesced in the magistrate and district court’s winnowing of the issues to two: (1) the validity of the warrant; and (2) in the absence of a valid warrant, the applicability of the Leon good-faith exception. Finally, as noted above, the Government expressly conceded at oral argument before the panel it never argued below, as it now does, that Lucas’s escapee status justified a warrantless (or warrant-light) search of the premises. In light of the above, and in the absence of exceptional circumstances, it is my view the Government waived the right to challenge Lucas’s standing to challenge the *786validity of the search.9 Thus, I respectfully dissent from part II of the Court’s opinion for the reasons articulated in Judge Beam’s dissent.
II
The now-vacated panel decision in this case noted the Leon good-faith exception exists because the exclusionary rule is not meant to deter magistrate judge errors — it is meant to curb overzealous law enforcement officials. I agree. Because the panel found the Nebraska Director of Correctional Services was too intertwined with Nebraska law enforcement officials and the state executive branch to be “detached and neutral,” the panel concluded the Leon good-faith exception did not apply. Similarly, in his dissent, Judge Beam contends the Leon good-faith exception is “inapplicable” because the warrant was not issued by a neutral magistrate. This conclusion is at odds with the Supreme Court’s interpretation of Leon in Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987).
Less than three years after deciding Leon, the Supreme Court handed down Krull. The Krull Court described the question in the case as “whether a good-faith exception to the Fourth Amendment exclusionary rule applies when an officer’s reliance on the constitutionality of a statute is objectively reasonable, but the statute is subsequently declared unconstitutional.” 480 U.S. at 342, 107 S.Ct. 1160. The Illinois statute in question required licensed automobile dealers to permit state officials to inspect vehicle records “at any reasonable time during the night or day” and to allow “examination of the premises of the licensee’s established place of business for the purpose of determining the accuracy of required records.” Id. at 343, 107 S.Ct. 1160. Pursuant to the statute, a Chicago police officer entered a licensee’s property and asked to see certain records. The officer then requested and received permission to search cars on the property.10 The officer determined some of the cars had been reported stolen, seized the cars, and placed an employee of the licensee under arrest. The holder of the license was later arrested and charged with criminal violations of Illinois motor vehicle statutes.
The state trial court found the warrant-less administrative search of licensees unconstitutional and suppressed the evidence seized. The Appellate Court of Illinois held the officer’s good-faith reliance on the statute might be relevant and remanded the matter to the trial court. On remand, the state trial court adhered to its original decision and found the good faith of an officer is relevant only when he acts pursuant to a warrant. The government appealed the trial court’s decision directly to the Supreme Court of Illinois which affirmed. The Supreme Court of Illinois held the statute unconstitutional because it vested too much discretion in state officials to decide who, when, and how long to search. The court also held the good-faith exception did not apply to a procedural statute directly authorizing warrantless searches.
The United States Supreme Court reversed the Supreme Court of Illinois decision. The Krull Court stated the Leon exception applies where an officer’s reli-*787anee on a judge-issued warrant is objectively reasonable, even though the warrant is ultimately found to be defective. The Krull Court noted Leon created the exception because (1) the exclusionary rule was historically designed to deter police misconduct rather than punish the errors of judges, (2) there was no evidence judges were inclined to subvert or ignore the Fourth Amendment, and (3) “of greatest importance to the Court, there was no basis ‘for believing that exclusion of evidence seized pursuant to a warrant [would] have a significant deterrent effect on the issuing judge or magistrate.’ ” Krull, 480 U.S. at 348, 107 S.Ct. 1160. In considering these factors, the Krull Court first concluded suppressing evidence obtained pursuant to an invalid statute “would have as little deterrent effect on the officer’s actions as would the exclusion of evidence when an officer acts on a warrant.” Id. at 349, 107 S.Ct. 1160. Second, the Krull Court also declared: “although [judges and legislators] clearly serve different functions in the criminal justice system .... legislators, like judicial officers, are not the focus of the rule.” Id. at 350, 107 S.Ct. 1160. The Krull Court found no evidence the legislators in question were inclined to subvert the Fourth Amendment and stated: “Although legislators are not ‘neutral judicial officers,’ as are judges and magistrates, neither are they ‘adjuncts to the law enforcement team.’ ” Id. at 35-51, 107 S.Ct. 1160. Third, the Krull Court found the greatest deterrent to the enactment of such legislation was not to exclude evidence in a particular case but to invalidate the statute itself. The Krull Court stated: “[T]o the extent that application of the exclusionary rule could provide some incremental deterrent, that possible benefit must be weighed against the ‘substantial social costs exacted by the exclusionary rule.’ ” Id. at 352-53, 107 S.Ct. 1160 (citing Leon, 468 U.S. at 907, 104 S.Ct. 3405).
In addition, the Krull Court noted Leon had set forth two situations in which the good faith exception would not apply: where the issuing magistrate wholly abandoned his judicial role or where the warrant was so facially deficient the executing officers could not have reasonably presumed it to be valid. Similarly, the Krull Court found evidence seized pursuant to a statute later invalidated would not qualify for the good-faith exception if the legislature (1) “wholly abandoned its responsibility to enact constitutional laws,” or (2) if the statute’s “provisions are such that a reasonable officer should have known that the statute was unconstitutional.” Id. at 355, 107 S.Ct. 1160. The Krull Court found neither of these factors present in its review of the Illinois statute. To the extent the statute vested too much discretion in state officials to decide who, when, and how long to search, the Krull Court found “the additional restrictions on discretion that might have been necessary are not so obvious that an objectively reasonable police officer would have realized the statute was unconstitutional without them.” Id. at 359-60, 107 S.Ct. 1160. Therefore, the Krull Court concluded that the officer had “relied, in objective good faith, on a statute that appeared legitimately to allow a warrantless administrative search of [the licensee’s] business.”11 Id. at 359, 107 S.Ct. 1160.
*788Given the broad language used in Krull, even though, in my judgment, the Nebraska statute at issue here, Neb.Rev.Stat. § 83-173, is unconstitutional (at least as applied in this case to search the house of the escapee named in the arrest warrant where the Government does not contest the escapee’s standing to challenge a war-rantless search), the seizure of evidence incident to Lucas’s arrest — based on an arrest warrant issued pursuant to the invalid statute — resulted from the officers’ objectively reasonable reliance on the statute which required the issuance of the warrant. The administrative warrant in question specifically references § 83-173 for its authority. In § 83-173(11), the Nebraska legislature has mandated: “The Director of Correctional Services shall ... [Tissue or authorize the issuance of a warrant for the arrest of any person committed to the department who has escaped from the custody of the department.” No deterrent effect would result from suppressing the evidence discovered as a result of the execution of the administrative arrest warrant at issue, which affords no discretion to the Director of Correctional Services (which is another reason why he is not neutral or detached as set forth in Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972)). If this court invalidated the warrant, Nebraska law enforcement officers would continue to rely on other warrants authorized by other statutes. Krull, 480 U.S. at 349, 107 S.Ct. 1160 (“Penalizing the officer for the [legislature’s] error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.” (alteration in original) (paraphrasing Leon, 468 U.S. at 921, 104 S.Ct. 3405)). And there is no evidence here the Nebraska legislature was trying to subvert the Fourth Amendment in authorizing the administrative arrest warrant for escapees. Further, if the statute or warrant were ruled invalid, the Nebraska Legislature would be sent a strong message to more carefully craft legislation in the future.
Finally, I submit it is not apparent from the face of the statute the administrative warrant is invalid. The Supreme Court has held warrantless arrests of escapees are valid if the arrest is made in public. United States v. Watson, 423 U.S. 411, 423-24, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). Thus, had the statute authorized the warrantless arrest of an escapee in a public space, it would have been valid (albeit unnecessary). It is unreasonable to expect an officer to know, because the statute instead added the additional step of having an executive branch officer issue the arrest warrant, the warrant would be invalid where used to enter a private residence. Further, there are a host of “retake” state statutes and at least one federal statute authorizing the Attorney General to issue arrest warrants (arrest warrants for aliens pending deportation under 8 U.S.C. § 1226(a)) that authorize nonjudicial arrest warrants. Thus, despite my position the search of Lucas’s primary residence was conducted pursuant to an invalid administrative warrant, I conclude it was objectively reasonable for officers, in arresting Lucas in his primary residence, to rely on the statute that authorized the issuance of the arrest warrant. As a result, I disagree with Judge Beam’s view that the good-faith exception was inapplicable in this case. See, e.g., United States v. Hunt, 893 F.2d 1028, 1031-32 (9th Cir.1990) (holding the Leon good-faith excep*789tion applied to save evidence seized as part of the execution of an arrest warrant issued by the Oregon Department of Corrections pursuant to its authority under an Oregon statute and citing the Krull decision in support), opinion withdrawn in part on other grounds, 925 F.2d 1181 (9th Cir.1991). I would apply the exception to save the evidence seized from Lucas’s residence. Thus, like the majority, I would affirm the district court but for the very different reasons articulated in this concurrence.
. United States v. Leon, 468 U.S. 897, 913, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).
. Our case law suggests plain error review is inapplicable under these circumstances. See United States v. Harrison, 393 F.3d 805, 806 (8th Cir.2005) ("Waiver extinguishes a potential 'error' under [Federal Rule of Criminal Procedure] 52(b)."). In any case, I would decline such review because any failure to consider the Government's belated argument does not "seriously affect[] the fairness, integrity, and public reputation of judicial proceedings.” United States v. Montanye, 996 F.2d 190, 193 (8th Cir.1993) (enbanc).
. Consent was an issue early on in the case but was not an issue before the Supreme Court.
. The Krull Court noted in a footnote: “The answer to this question might well be different when police officers act outside of the scope of the statute, albeit in good faith.” Krull, 480 U.S. at 360, 107 S.Ct. 1160. It is arguable the officers here acted outside the scope of Lucas’s arrest warrant by using the warrant to enter a private residence. If they acted outside the scope, the Krull holding might not apply to their conduct, even if they acted in good faith. Id. But the Supreme Court has held, at least where a judicially issued arrest warrant is involved, an arrest warrant can be used to enter a private home *788where the officer holding the warrant has reasonable suspicion the person named in the arrest warrant is in the home. Payton, 445 U.S. at 576, 100 S.Ct. 1371. Here, the officers executing the arrest warrant did have a reasonable suspicion Lucas was in the house, so it appears they were acting within the scope of the arrest warrant when they entered the house and seized Lucas.