Sixth Circuit and En Banc Eleventh Circuit Each Forgive the Government’s Abandonment of Fourth Amendment Arguments, Finding Them Forfeited Rather Than Waived

Two courts issue decisions the same day considering Fourth Amendment arguments that the government forfeited, holding that federal courts of appeals have the power and can properly exercise their discretion to reach such issues.

United States v. Campbell, No. 16-10128 (11th Cir. Feb. 16, 2022): Defendant Campbell was indicted for possessing a firearm as a convicted felon. Campbell filed a motion to suppress the firearm discovered in a search, “claiming that the evidence found in the search of his car was obtained in violation of the Fourth Amendment’s prohibition against unreasonable searches and seizures.” Campbell argued that “the seizure was unreasonable because [the officer] lacked reasonable suspicion to believe that a traffic violation had occurred” and also “prolonged the stop by asking questions unrelated to the purpose of the stop.”

The district court denied the motion to suppress, finding that there was reasonable suspicion for the traffic violation and that the officer did not unreasonably prolong the stop. The district court did not reach the government’s alternative argument, presented supplemental briefing, that “the good-faith exception to the exclusionary rule applied.”

On appeal, the government defended the decision below without raising the good-faith issue. The original panel issued two opinions affirming the conviction. “In both opinions, the panel considered the application of the good-faith exception—which was fully briefed in the District Court—despite the Government’s failure to address the matter on appeal.” The full court then agreed to hear the case and requested supplemental briefing “on whether we may affirm based on the good-faith exception despite the Government’s failure to brief the issue.”

The en banc court (7-5), Senior Judge Tjoflat, writing for the majority, holds that the court of appeals can consider the unbriefed issue in support of the decision below. The majority recognizes that under the “party presentation principle,” courts presumptively do not raise legal arguments sua sponte and rely on the parties to frame the issues for appeal, but that this principle is not unbending.

The application of the principle depends on whether an issue was waived or forfeited. If a party waives an argument, meaning to intentionally relinquish or abandon the point, then it is considered an abuse of discretion for an appellate court to consider the argument. “Waiver directly implicates the power of the parties to control the course of the litigation; if a party affirmatively and intentionally relinquishes an issue, then courts must respect that decision.”

But if the argument is merely forfeited—that it is abandoned, rather than deliberately relinquished—then a court of appeals has discretion to consider it under “extraordinary circumstances.” Under the abandonment rule, unbriefed arguments are not reached on appeal. The majority notes, though, that “we have identified five situations in which we may exercise our discretion to consider a forfeited issue: (1) the issue involves a pure question of law and refusal to consider it would result in a miscarriage of justice; (2) the party lacked an opportunity to raise the issue at the district court level; (3) the interest of substantial justice is at stake; (4) the proper resolution is beyond any doubt; or (5) the issue presents significant questions of general impact or of great public concern.”

The majority decides that the good-faith issue was forfeited here, rather than waived. “[W]e hold that the mere failure to raise an issue in an initial brief on direct appeal should be treated as a forfeiture of the issue, and therefore the issue may be raised by the court sua sponte in extraordinary circumstances after finding that one of our [enumerated] forfeiture exceptions applies.”

The majority observes that “[t]his clarification should not be taken as a weakening of our abandonment rule. Abandonment still incurs heavy penalties, even when treated as a forfeiture. After all, a party loses the right to demand consideration of an abandoned issue . . . . In most cases, an issue abandoned on appeal should still be dismissed without reaching the merits.”

Still, in this case the majority holds that a forfeiture exception applies: that “the proper resolution is beyond any doubt.” The majority also holds that “extraordinary circumstances” warrant exercising the court’s discretion to reach the forfeited issue. “[T]his Court has an extraordinary interest in protecting the public and encouraging good police work by ensuring that evidence obtained in good faith reliance on binding appellate precedent is not excluded. And since the focus of the exclusionary rule is solely on deterring police misconduct, there is little sense in excluding evidence based on Government counsel’s mistakes.”

The dissent, signed by Judges Newsom and Jordan and running 70 pages (16 pages longer than the majority), takes full-throated exception to what it sees as a watering down of the party presentation principle. “Today’s decision . . . contravenes foundational commitments of our adversarial system and its constituent party-presentation principle, obscures the critical distinction between the oft-confused concepts of ‘waiver’ and ‘forfeiture,’ and fails to meaningfully limit the circumstances in which appellate courts can engage in what commentators have called ‘judicial issue creation.’”  

United States v. Russell, No. 20-3756 (6th Cir. Feb. 16, 2022): “Denzell Russell was a passenger in a car that the East Cleveland Police stopped and searched. The police found two handguns, which resulted in a felon-in-possession charge for Russell. He argues that the search violated the Fourth Amendment. But to assert a Fourth Amendment claim, Russell must have ‘standing’ to challenge the search. And normally a car passenger without a possessory interest in the car lacks such standing.”

Unfortunately for the government lawyers, no one argued the defendant’s lack of Fourth Amendment standing in the district court. And “Fourth Amendment standing, unlike Article III standing, is not jurisdictional and so it can be forfeited or waived.” The district court nonetheless denied the motion to suppress, both on the government’s proffered ground that the officer had probable cause and, ruling sua sponte, that the defendant also lacked standing to challenge the search.  

Holding that the government indeed forfeited the argument below, the panel nevertheless reaches the issue and affirms the denial of the motion to suppress on plain-error review.

The panel first holds that the government did not waive the argument in the district court, which would have prevented its revival on appeal. “Even if the government was implicitly put on notice [of the standing issue], it took no action to abandon its objection to Russell’s standing. Instead, by focusing on only one issue, it merely failed to object. And failing to object is not a waiver, but a forfeiture . . . . So there was no ‘intentional relinquishment’ . . . . Had the government, for example, conceded that Russell has Fourth Amendment standing, then it would have waived the argument.”

The panel then holds that an argument forfeited below may be considered on a plain-error review under Fed. R. Crim. P. 52(b), observing that most (if not quite all) circuits allow the government as well as defendants to benefit from such review when they forfeit an argument in the district court.

Finally, the panel holds that the standing argument clears the high standard of plain error. Defendant “admitted to being a passenger in a car that he didn’t own and he doesn’t contest that claim now. In fact, it’s not apparent what kind of evidence Russell could present to establish his standing. On appeal, in the face of the government’s argument, he hasn’t told us what kind of evidence he would use to establish his standing.” Suppression of the evidence would otherwise “likely result in the dismissal of the government’s case against Russell.” And holding the government to its forfeiture would supposedly “allow the defendant to benefit from the exclusionary rule when none of his rights were violated.”

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