United States v. Donte Dowdell ( 2023 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 21-3251
_____________
UNITED STATES OF AMERICA,
Appellant
v.
DONTE DOWDELL, a/k/a Pooh
_____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-21-cr-00363-001)
District Judge: Honorable John M. Vazquez
Argued November 16, 2022
Before: HARDIMAN, PORTER, and FISHER, Circuit
Judges
(Filed: June 2, 2023)
Philip R. Sellinger
Mark E. Coyne [ARGUED]
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102
Counsel for Appellant
Richard Coughlin
Rahul K. Sharma [ARGUED]
Office of Federal Public Defender
1002 Broad Street
Newark, NJ 07102
Counsel for Appellee
________________
OPINION OF THE COURT
________________
HARDIMAN, Circuit Judge.
The United States appeals an order of the District Court
granting Donte Dowdell’s motion to suppress evidence.
During the suppression hearing, the Court held the
Government waived a potentially winning argument. The
Government claims the Court abused its discretion in finding
the argument waived and, alternatively, in not excusing the
waiver. Unpersuaded by either argument, we will affirm.
I
A
This appeal arises out of a traffic stop in Franklin
Township, New Jersey. On the evening of January 8, 2021,
several members of the Somerset County Organized Crime and
2
Narcotics Task Force were patrolling in unmarked cars in
response to recent gang-related crimes and shootings. One of
the officers, Detective Nicholas Gambino, recognized a white
BMW he had seen earlier that evening parked in front of a
known meeting place for the Bounty Hunter Bloods. Gambino
followed the car, saw it turn without signaling, and radioed his
supervisor, Sergeant William Brown, to pull the car over for a
traffic violation.
Sergeant Brown, who was driving with two other
officers, initiated the traffic stop by activating the lights and
siren on his SUV. Gambino arrived at the scene and shined his
flashlight by the left rear door of the car. Dowdell, whom
Gambino knew from prior arrests to be a member of the Bounty
Hunter Bloods, was sitting in the back seat.
After identifying Dowdell, Gambino opened the left
rear car door. Gambino testified: “I knew [Dowdell] was the
victim of a recent gang-involved shooting, so at that time I
opened the door, [to] attempt to speak to him, have a
conversation, maybe get any other information about that
particular shooting which was an open investigation at that
time.” App. 105. Gambino also testified that it was common
practice to open a car door to speak with a passenger. On cross-
examination, Gambino added that approaching the rear door
was a precautionary measure for officer safety.
After opening the door, Gambino saw a bulge in
Dowdell’s jacket at chest-level. Gambino immediately ordered
Dowdell out of the car and patted him down. When Gambino
3
discovered a fully loaded semi-automatic firearm with a bullet
in the chamber, he arrested Dowdell.
B
The Government charged Dowdell with being a felon in
possession of a firearm and ammunition in violation of 18
U.S.C. § 922(g)(1). Dowdell moved to suppress the gun and
ammunition evidence. The District Court held an evidentiary
hearing to determine whether there had been a traffic violation
justifying the initial stop and whether Gambino had seen the
bulge in Dowdell’s jacket justifying the frisk. Following the
evidentiary hearing, the Court asked for supplemental briefing.
Dowdell then argued that Gambino violated his Fourth
Amendment rights under Florida v. Jardines, 569 U.S. 1, 5
(2013), by “physically intruding on” the car door to speak with
Dowdell about his gang activity. App. 236–240.
The Government’s supplemental brief in response did
not mention Jardines. Instead, the Government focused on the
traffic stop itself, arguing it was justified by a reasonable
articulable suspicion that someone in the car was engaging in
criminal activity under Terry v. Ohio, 392 U.S. 1, 30 (1968).
The Government also contended that Gambino had reasonable
suspicion a crime was being committed that justified opening
the door to speak with Dowdell. In his supplemental reply
brief, Dowdell insisted that the Government had waived any
objection to his Jardines claim because the Government’s
4
argument that opening the door was reasonable under the
totality of the circumstances was too generic.
C
The parties characterize the District Court’s statements
at the suppression hearing differently, so we review them in
detail. At the beginning of the hearing, the Court asked the
Government to confirm that it correctly understood the
Government’s argument regarding Gambino’s justification for
opening the car door:
The Court: My understanding is that the
Government’s position is that not only—that the
opening of the door was appropriate and that’s
based on an argument pursuant to the Terry
standard that Detective Gambino had a
reasonable articulable suspicion in light of the
totality of the circumstances. Correct?
A: That’s absolutely correct, Your Honor, yes.
App. 10. The Court later credited Gambino’s testimony that
there had been a traffic violation. The Court also determined
that once Gambino saw the bulge in Dowdell’s jacket, which
had happened only after Gambino opened the door, the frisk
was justified.
Next, the Court turned to the constitutionality of
opening the car door in the first place. Before announcing its
decision, the Court said: “I want to make clear that the
positions of the parties are dispositive to my decision.” App.
27. The Court then ruled: “I disagree with the Government that
the detective had a reasonable articulable suspicion to open the
5
door at that time.” App. 28. Gambino said he opened the door
“because he wanted to talk” about an unrelated crime—the
recent drive-by shooting at Dowdell’s house—and Gambino’s
desire to investigate could not alone establish reasonable
suspicion. App. 29. As the Court observed, no court has found
that officers can frisk car passengers based solely on their gang
membership and the fact that they are in a car that violates a
traffic law.
After ruling that the evidence would be suppressed
because the Government failed to establish that Gambino
opened the door without violating Dowdell’s Fourth
Amendment rights, the Court suggested that the Government
might have made an alternative argument:
I want to make clear for purposes of review that
I do think the Government had an alternate
analysis that was available to them, but it was not
raised by the Government. It seems, to me, if the
Government had raised the alternate analysis, the
Government would have prevailed, but I do not
think it would be fair to rule on an issue based on
an argument not raised by the Government.
App. 32. The Court expanded on what it thought the alternative
argument might be, explaining that two Supreme Court
cases—Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per
curiam) and Maryland v. Wilson, 519 U.S. 408 (1997)—could
be extended to permit officers to order people out of a car
during a valid traffic stop. Mimms established the bright-line
rule that police may order the driver out of a car during a traffic
stop. Mimms, 434 U.S. at 111 n.6. Wilson extended the Mimms
rule to passengers. Wilson, 519 U.S. at 414–15. The Court
analogized: “if the officer can order you out of the car, the
6
officer can also open the door to the car. . . . At most I see that
being a de minimis additional intrusion on the passengers’
Fourth Amendment rights.” App. 35.
The Court then re-emphasized that this alternative
argument had never been made, so it was waived. In the
Court’s view, it would not “be fair to rule on an issue based on
an argument not raised.” App. 32. The Court ruled solely based
on the argument the Government briefed and affirmed at the
suppression hearing: “[U]ltimately, I will grant the motion to
suppress because I do not find the Government’s argument that
there was a reasonable articulable suspicion to open the car
door to be valid. On that ground I will grant the motion to
suppress.” App. 37.
After the Court ruled, the Government took exception.
The Government insisted that because it had cited Mimms and
Wilson in its supplemental brief, it had not waived the
argument that those cases could be extended to include an
officer opening a car door. The Court answered that this
Wilson-extension argument had been waived because,
although the Government cited the relevant cases, it did so only
in support of its reasonable suspicion argument, and the brief
failed even to mention their holdings. The Court explained:
“that’s why I clarified with [counsel] at the beginning: ‘Is your
argument that this is reasonable articulable suspicion?’ And I
made that clear on the record.” App. 38. Further justifying its
decision, the Court explained that Dowdell’s counsel “didn’t
get the benefit of that argument so I could hear him reply.”
App. 40. The Court’s order suppressing the evidence held the
Government had not proven its legal theory (reasonable
7
suspicion), but it did not mention waiver. The Government
appealed.
II 1
The Fourth Amendment prohibits “unreasonable
searches and seizures.” The Supreme Court considers
presumptively unreasonable any warrantless searches and
seizures, with certain “specifically established and well-
delineated exceptions.” California v. Acevedo, 500 U.S. 565,
580 (1991) (citations omitted). “Evidence obtained through
unreasonable searches and seizures must be suppressed as
‘fruit of the poisonous tree.’” United States v. Bey, 911 F.3d
139, 144 (3d Cir. 2018) (cleaned up).
When a defendant moves to suppress evidence, the
Government—not the Court— must show that each
warrantless act constituting a search or seizure was reasonable.
United States v. Ritter, 416 F.3d 256, 261 (3d Cir. 2005). The
act at issue here is Detective Gambino opening the car door,
which the Government concedes was a search. The District
Court found, and the Government now concedes, that there was
no reasonable suspicion to justify opening the door.
This appeal raises two issues. First, whether the District
Court abused its discretion in finding the Government waived
the argument that Wilson should be extended to justify opening
the door. Second, even if the Government did waive (or forfeit)
1
The District Court had jurisdiction under 18 U.S.C. § 3231.
We have jurisdiction under 18 U.S.C. § 3731.
8
that argument, whether the District Court abused its discretion
by not excusing that waiver (or forfeiture).
We review the District Court’s determination that the
Government waived (or forfeited) the Wilson-extension
argument for abuse of discretion. See Kars 4 Kids Inc. v.
America Can!, 8 F.4th 209, 219 n.9 (3d Cir. 2021).
A
We begin with the first issue. The Government argues
that it neither waived, nor forfeited, the Wilson-extension
argument. Dowdell insists it did.
The parties accuse each other of misunderstanding the
difference between waiver and forfeiture. Those arguments are
understandable because courts only recently have focused on
the difference between the two. “The terms waiver and
forfeiture—though often used interchangeably by jurists and
litigants—are not synonymous.” Hamer v. Neighborhood
Hous. Servs. of Chicago, 138 S. Ct. 13, 17 n.1 (2017). Waiver
is the “intentional relinquishment or abandonment of a known
right.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). The
Supreme Court has deemed an argument waived, for example,
when a party “twice informed the U.S. District Court that it
would not challenge, but is not conceding, the timeliness of
[the petition].” Wood v. Milyard, 566 U.S. 463, 465 (2012)
(cleaned up). In contrast, “forfeiture is the failure to make the
timely assertion of a right.” United States v. Olano, 507 U.S.
725, 733 (1993). “[A]n example of [forfeiture] is an
inadvertent failure to raise an argument.” Barna v. Bd. of Sch.
Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 147 (3d Cir.
2017). The distinction between waiver and forfeiture “can
carry great significance.” Barna, 877 F.3d at 146. A party’s
9
waiver should be enforced. Id. at 146 n.7; Wood, 566 U.S. at472–73 (“It would be ‘an abuse of discretion’ for a court ‘to
override a State’s deliberate waiver’”) (citation omitted). For a
waiver to be valid, however, “the right said to have been
waived must be waivable.” Gov’t of V. I. v. Rosa, 399 F.3d 283,
290 n.6 (3d Cir. 2005). Although we cannot reach waived
arguments, appellate courts may “resurrect” forfeited
arguments in “extraordinary circumstances.” Wood, 566 U.S.
at 471 & n.5; see also Barna, 877 F.3d at 147. This is because
“the refusal to consider arguments not raised is a sound
prudential practice, rather than a statutory or constitutional
mandate, and there are times when prudence dictates the
contrary.” Davis v. United States, 512 U.S. 452, 464 (1994)
(Scalia, J., concurring).
We enforce waiver and forfeiture against criminal
defendants and the government equally. See Olano, 507 U.S.
at 731 (“No procedural principle is more familiar . . . than that
a constitutional right . . . may be forfeited in criminal as well
as civil cases by the failure to make timely assertion of the right
before a tribunal having jurisdiction to determine it.”) (quoting
Yakus v. United States, 321 U.S. 414, 444 (1944)); Ritter, 416
F.3d at 268 (“the government should not be afforded a second
opportunity to carry its burden that the challenged evidence
should not be suppressed.”).
The policy supporting waiver and forfeiture is the
“party presentation principle,” which applies “in both civil and
criminal cases, in the first instance and on appeal.” Greenlaw
v. United States, 554 U.S. 237, 243 (2008). “[A]s a general
rule, ‘[o]ur adversary system is designed around the premise
that the parties know what is best for them, and are responsible
for advancing the facts and arguments entitling them to
10
relief.’” Id. at 244 (quoting Castro v. United States, 540 U.S.
375, 386 (2003) (Scalia, J., concurring)).
Waiver and forfeiture “serve[] several important
judicial interests, protecting litigants from unfair surprise;
promoting the finality of judgments and conserving judicial
resources; and preventing district courts from being reversed
on grounds that were never urged or argued before [them].”
Webb v. City of Phila., 562 F.3d 256, 263 (3d Cir. 2009)
(cleaned up). In our justice system, “litigants, not the courts,
choose the facts and arguments to present.” United States v.
James, 955 F.3d 336, 344 (3d Cir. 2020). Trial court
proceedings are the “main event,” and not simply a “tryout on
the road” to appellate review. Wainwright v. Sykes, 433 U.S.
72, 90 (1977). And “[t]o the extent courts have approved
departures from the party presentation principle in criminal
cases, the justification has usually been to protect a pro se
litigant’s rights.” Greenlaw, 554 U.S. at 243−44.
B
The Government insists it neither waived nor forfeited
the Wilson-extension argument in the District Court. We
disagree.
The Government did not preserve the Wilson-extension
argument by citing Mimms and Wilson in its supplemental
brief. “[S]imply citing a case in the District Court is not
sufficient to raise all arguments that might flow from it.”
United States v. Dupree, 617 F.3d 724, 731 (3d Cir. 2010). The
Government cited Mimms and Wilson to support the argument
it now concedes was wrong: that there was reasonable
11
suspicion to justify opening the car door. In its supplemental
brief to the District Court, the Government wrote:
The Supreme Court has routinely recognized that
traffic stops pose substantial risks to the police
who perform them and has extended the
constitutional principals [sic] in Terry to such
encounters. See, e.g., Maryland v. Wilson, 519
U.S. 408, 413–15 (1997), Michigan v. Long, 463
U.S. 1032, 1045−52 (1983); Pennsylvania v.
Mimms, 434 U.S. 106-12 (1977). Further, in
United States v. Delfin-Colina, the Third Circuit
expressly adopted “reasonable suspicion,” not
“probable cause,” as the applicable standard
when examining the lawfulness of a traffic stop.
464 F.3d 392, 396–97 (3d Cir. 2006). . . . Here,
the actions of the driver of the BMW led the
officers to “quickly develop reasonable
suspicion or probable cause.”
App. 257.
As the block quotation demonstrates, the Government
cited Wilson and Mimms to support its claim under Terry that
the officers had reasonable suspicion to conduct the traffic
stop. The brief does not make the Wilson-extension argument
the District Court identified and the Government now presses
on appeal. For that reason, the District Court concluded that the
Government “waived” the Wilson−extension argument,
“because they did not raise it in the brief.” App. 41. That failure
was forfeiture, not waiver. See Barna, 877 F.3d at 147.
But the District Court’s misnomer was not an abuse of
discretion because, despite our recent efforts to express waiver
12
and forfeiture more accurately, Supreme Court caselaw, our
caselaw, and former Rule 12 of the Federal Rules of Criminal
Procedure all used the term waiver to include forfeiture, while
preserving the legal distinction. See, e.g., Freytag v.
Commissioner, 501 U.S. 868, 894 n.2 (1991) (Scalia, J.,
concurring) (“[We] have so often used them interchangeably
that it may be too late to introduce precision.”); Dupree, 617
F.3d at 727 n.1 (explaining why the language of former Rule
12(e) of the Federal Rules of Criminal Procedure has led many
to use the terms interchangeably).
The dissent deems the District Court’s use of the term
“waiver” instead of “forfeiture” to be an error constituting an
abuse of discretion. It claims the 2014 revisions to Rule 12 of
the Federal Rules of Criminal Procedure resolved the
confusion between waiver and forfeiture. Dissent Part I.A. If
only that were so. In 2017, the Supreme Court noted that judges
frequently use forfeiture and waiver “interchangeably” even
though they “are not synonymous.” Hamer v. Neighborhood
Hous. Servs. of Chicago, 138 S. Ct. 13, 17 n.1 (2017). Our
Court has done likewise—including in the very case that
establishes the standard of review we apply here. See Kars 4
Kids, Inc., 8 F.4th at 219 n.9 (“We review a district court’s
determination whether a party waived an argument by failing
to raise it earlier in the proceedings for abuse of discretion.”);
see also Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 752
n.8 (3d Cir. 2019) (“As Baloga has not meaningfully briefed or
argued his speech claim on appeal, he has waived it.”) (citing
In re: Asbestos Prods. Liab. Litig. (No. VI), 873 F.3d 232, 237
(3d Cir. 2017), which also used “waiver” instead of
“forfeiture”); In re Vehicle Carrier Servs. Antitrust Litig., 846
F.3d 71, 83 n.12 (3d Cir. 2017) (referring to a failure to raise
an argument in briefing as “waiver,” and approving of the
13
district court’s decision not to let plaintiffs make those new
arguments at oral argument). So the dissent’s statement that
“no intervening caselaw suggests an ongoing confusion
between waiver and forfeiture” is demonstrably false. See
Dissent Part I.A.
The dissent’s further insistence that we cannot excuse
conflation of the terms because the Supreme Court has not
made the same mistake is an overly harsh rule accepted by no
other circuit. See Dissent Part I.A. The Supreme Court has also
explicitly declined to articulate any general rule regarding
waiver, leaving it “primarily to the discretion of the courts of
appeals, to be exercised on the facts of individual cases.” Exxon
Shipping Co. v. Baker, 554 U.S. 471, 487 (2008) (citation
omitted). Judicial modesty requires that we acknowledge that
our Court’s inexact usage of “waiver” and “forfeiture” could
well have influenced the District Court’s misnomer here. The
District Court’s conflation of the terms “waiver” and
“forfeiture” was not an abuse of discretion.
C
The Government next argues it neither waived nor
forfeited the Wilson-extension argument because it adopted the
argument when the Court was ruling from the bench. The
transcript of the suppression hearing indicates otherwise. The
Court opened proceedings by confirming that it correctly
understood the Government’s argument. The Government said
it was “absolutely correct” that its argument was reasonable
suspicion. App. 10. The Government said nothing about any
alternative argument that Wilson should be extended or that
14
something less than reasonable suspicion might justify opening
the car door.
Also unpersuasive are the Government’s claims, after
the Court suggested that Wilson could be extended to license
Gambino’s actions, that the Government had made that
argument all along. The Court called the Government’s bluff,
explaining “with all due respect you try to massage what’s
already been submitted. That’s why I clarified with [counsel]
at the beginning: ‘Is your argument that this is reasonable
articulable suspicion?’ And I made that clear on the record.”
App. 38. 2
Even if the Government had affirmatively made a new
argument at the oral hearing, we are doubtful that this can
overcome any forfeiture in its briefing. The dissent argues that
new arguments can be made at suppression hearings. But the
dissent, like the Government on appeal, cites no caselaw for
that proposition. In fact, our caselaw indicates the opposite,
2
The dissent argues that the Government implied that it had
more than one alternative argument because the District Court
used the phrase “not only.” Dissent Part I.B. This is a strained
reading of the colloquy between the Court and counsel. The
Court asked if “the Government’s position is that not only—
that the opening of the door was appropriate and that’s based
on an argument pursuant to the Terry[?]” The Government
responded: “That’s absolutely correct, Your Honor, yes.” The
Court’s halting mention of the phrase “not only”—which was
followed by one point, not two—did nothing to help the
Government advance an alternative argument. We know that
to be the case because the Government reiterated that its
argument was “absolutely” Terry.
15
generally holding that parties cannot get a second bite at the
apple at oral rulings. See, e.g., In re Vehicle Carrier Servs.
Antitrust Litig., 846 F.3d at 83 n.12 (approving of a district
court’s decision not to let plaintiffs make new arguments at
oral argument). In any event, the Government did not suggest
that it was making any new arguments at the suppression
hearing, but rather insisted that it had not forfeited the Wilson-
extension argument in its briefing. 3 So the District Court was
correct that the Government’s last-ditch attempt to “massage”
what it submitted was unavailing.
Our review of the record confirms the District Court’s
decision that the Government never made the Wilson-extension
argument. The Government’s sole legal theory was that
reasonable suspicion justified Detective Gambino opening the
car door. For these reasons, we hold that the District Court did
not abuse its discretion when it found that the Government
waived (forfeited) the Wilson-extension argument.
III
The Government’s fallback position is that even if it
forfeited the Wilson-extension argument, the District Court
3
The dissent argues that the Government affirmatively
committed to the alternative Wilson-extension argument, citing
Appendix pages 37 through 40. Dissent Part I.B. At those
pages the Government merely continued to protest that its brief
had not failed to raise the Wilson-extension argument. The
Government did not proffer a new (alternative) argument.
16
abused its discretion in not excusing the forfeiture. 4 The
Government makes two arguments in support of this position.
Neither is persuasive.
A
First, the Government argues that evidence cannot be
suppressed when the District Court concludes there has been
no Fourth Amendment violation. The Government’s premise
is flawed. The Court ruled on the legal argument the
Government presented—reasonable suspicion—and
disclaimed ruling on the Wilson−extension argument. The
Court used conditional language when discussing whether
extending Wilson would cure any Fourth Amendment
violation. App. 40 (“I’m only saying I think that’s the way I
would have ruled because [opposing counsel] didn’t have the
opportunity to reply.”); see also id. (“Let’s make the record
clear. . . . I think I could have found that [opening the door] was
constitutional.”); App. 32 (“It seems, to me, if the Government
had raised the alternate analysis, the Government would have
prevailed.”) (all emphases added).
More fundamentally, the Court found a Fourth
Amendment violation. The Court suppressed the evidence
4
The Government also argues that the District Court should
have ordered additional briefing on the propriety of extending
Mimms and Wilson. The Government cited no caselaw or rule
suggesting that a court’s failure to order supplemental
briefing—let alone a second round of supplemental briefing—
is an abuse of discretion. In any event, the Government
essentially conceded that additional briefing would not have
been helpful. Gov’t Br. 22 (“[I]t’s hard to see what he could
have said in additional briefing.”).
17
because the Government’s reasonable suspicion argument—
which the Government confirmed was its only argument—
failed as a matter of law. The Court suppressed the evidence
on that basis alone.
The Government also claims the District Court had to
extend Wilson because that is the “correct law.” Gov’t Br. 19–
20. This claim is based on another flawed premise because we
have yet to extend Wilson to the circumstances presented here.
Whether an officer can open a car door during a traffic stop
based on less than reasonable suspicion is an open question in
our circuit. And our sister courts are divided on the question. 5
In sum, the District Court never held there was no
5
Dowdell incorrectly claims that every federal case to consider
what justifies opening a car door classified the inquiry as
requiring reasonable suspicion analysis. Dowdell Br. 13–14
(collecting cases). The Eleventh Circuit has extended Mimms
and Wilson such that reasonable suspicion was not necessary
to justify opening a car door. United States v. Cotton, 721 F.2d
350, 352 (11th Cir. 1983). The Fifth Circuit has similarly
extended Wilson without requiring reasonable suspicion, but
only in the narrow context of opening a door after an occupant
is ordered to exit the vehicle and claims to be physically unable
to do so. United States v. Meredith, 480 F.3d 366, 371 (5th Cir.
2007). The subsequent search is limited to a “minimally
necessary visual inspection of just his person.” Id. Three
federal circuits do require reasonable suspicion to justify
opening a car door. The D.C. and Fourth Circuits have
extended Mimms and Wilson to include opening a car door, but
only when there was also reasonable suspicion, which the
Government concedes did not exist here. United States v.
18
Fourth Amendment violation. So the Court did not abuse its
discretion in finding the Wilson-extension argument forfeited.
The Government’s argument that the applicable law can never
be waived fails because the law here is not settled. 6 And even
if we were to decide the Fourth Amendment question
ourselves, we would still be unable to resolve this case in the
Government’s favor because the Government failed to
Brown, 334 F.3d 1161, 1169 (D.C. Cir. 2003); United States v.
Stanfield, 109 F.3d 976, 981, 984–85 (4th Cir. 1997).
Similarly, the Ninth Circuit requires reasonable suspicion to
open a door and lean inside a car, considering such actions to
implicate greater privacy concerns than merely ordering the
driver out of car under Mimms. United States v. Ngumezi, 980
F.3d 1285, 1288–89 (9th Cir. 2020) (“even if opening a door
and leaning into the car is a lesser intrusion on the driver’s
liberty, it is a greater intrusion on the driver’s privacy interest
in the car’s interior.”).
6
The dissent argues that the caselaw is settled, citing United
States v. Hurtt, 31 F.4th 152, 161–63 (3d Cir. 2022). Dissent
Part I.C. But Hurtt was not published at the time of the District
Court’s ruling, so the District Court can’t be faulted for not
applying it. And even if Hurtt had been published, it does not
establish the Wilson-extension argument as the law in our
Circuit. Hurtt found that leaning into a vehicle was off mission
under Rodriguez and unlawful because there was no reasonable
suspicion. That doesn’t mean that opening a car door is always
lawful. In fact, the officer in Hurtt didn’t open the car door and
the opinion didn’t even cite Wilson. See supra n.6. As we
explain today, whether the Wilson-extension argument applies
in our Circuit remains an open question.
19
preserve the Wilson-extension argument on appeal. 7
B
The Government alternatively argues that the District
Court abused its discretion in not excusing the forfeiture. 8 We
disagree.
The Government is correct that enforcing forfeiture in
suppression hearings does not promote the exclusionary rule’s
“sole purpose” of “deter[ring] misconduct by law
enforcement.” Davis v. United States, 564 U.S. 229, 246
(2011) (emphasis in the original); It is also correct that the
exclusionary rule is not meant “to punish the errors of judges
and magistrates” who mistakenly issue warrants, United States
v. Leon, 468 U.S. 897, 916 (1984); or “mistakes by court
7
In United States v. Joseph, we explained how to preserve an
argument on appeal: the same legal rule and same facts must
have been presented in the District Court. 730 F.3d 336, 342
(3d Cir. 2013). The Government argued in the District Court
that opening the door was justified by reasonable suspicion. On
appeal, it claims opening the door was justified by something
less than reasonable suspicion. These are two different legal
rules. So the Wilson-extension argument was not preserved on
appeal either.
8
The Government did not argue that the District Court should
have excused any forfeiture based on any of the traditional
forfeiture exceptions. See Barna, 877 F.3d at 147 (collecting
cases). Nor did it argue that the exclusionary rule should not
have applied because Gambino acted in good faith. See Davis
v. United States, 564 U.S. 229, 238 (2011).
20
employees” in their clerical duties, Arizona v. Evans, 514 U.S.
1, 14 (1995); or good faith but mistaken understandings of the
law by police, Leon, 468 U.S. at 922–23. Here, Dowdell avoids
trial not because the officer blundered, but because the
Government lawyer may have blundered.
Although the District Court’s suppression of evidence
does nothing to deter police misconduct, it would be unwise to
categorically excuse waivers or forfeitures in suppression
hearings. Doing so would violate the party presentation
principle, the bedrock of our adversarial system. That principle
ensures that courts decide only those issues argued by
interested and motivated litigants. The Supreme Court recently
reaffirmed the party presentation principle in United States v.
Sineneng-Smith. 140 S. Ct. 1575, 1579–80 (2020). In that case,
the Ninth Circuit had identified new arguments on appeal,
invited supplemental briefing on them from amici, and
restructured the oral argument and its decision based on those
arguments. Id. at 1580−81. According to the unanimous
Supreme Court, this “radical transformation” of suggesting and
ruling on an unpreserved argument “departed so drastically
from the principle of party presentation as to constitute an
abuse of discretion.” Id. at 1578, 1582. As the Supreme Court
explained, “[c]ourts are essentially passive instruments” that
“do not, or should not, sally forth each day looking for wrongs
to right. They wait for cases to come to them, and when cases
arise, courts normally decide only questions presented by the
parties.” Id. at 1579 (cleaned up).
The party presentation principle supports our practice of
enforcing forfeiture against the government in the same way
we do with defendants. See, e.g., Ritter, 416 F.3d at 268. That
practice includes enforcing forfeiture against the government
even when doing so does not further the purpose of the
21
exclusionary rule. For example, a government failure to argue
that a defendant has no Fourth Amendment “standing” is
“subject to the ordinary rule that an argument not raised in the
district court is [forfeited] on appeal.” United States v. Stearn,
597 F.3d 540, 551 n.11 (3d Cir. 2010). 9 When the government
fails to bring a viable Fourth Amendment standing challenge,
defendants benefit from the exclusionary rule even when their
own Fourth Amendment rights may not have been implicated.
And when, as in this case, the government is a party,
categorically excusing forfeiture would raise separation of
powers concerns. In a suppression hearing, the government—
not the Court—bears the burden of proving there was no
Fourth Amendment violation. Ritter, 416 F.3d at 261. Had the
District Court intervened here by excusing the Government’s
forfeiture and applying the Court’s own novel legal theory, it
would have undermined the judiciary’s neutrality and
encroached upon the executive branch’s prosecutorial
prerogative to argue its case.
For these reasons, we decline the Government’s
invitation to create an exception to protect it from forfeiting
9
We use the term “standing” not in the jurisdictional sense but
as shorthand for the determination of whether Fourth
Amendment rights have been implicated. Stearn, 597 F.3d at544 n.2.
22
arguments in suppression hearings. It follows that the District
Court did not abuse its discretion in declining to do so as well.
* * *
We have not yet decided whether police officers may
open car doors during routine traffic stops based on less than
reasonable suspicion without violating the Fourth Amendment.
The District Court suggested that the Supreme Court’s decision
in Wilson might be extended to cover those circumstances. But
the Government never raised or litigated that argument in the
District Court. So the argument was forfeited. And the
argument the Government did make—that Detective Gambino
had reasonable suspicion to believe crime was afoot that
justified his opening the car door—was invalid, as the
Government now concedes. We also hold that the District
Court did not abuse its discretion when it did not excuse the
Government’s forfeiture. For these reasons, the rule of law
requires us to affirm the order of the District Court.
23
United States of America v. Donte Dowdell, No. 21-3251
FISHER, Circuit Judge, dissenting:
Donte Dowdell is a felon who was found in possession
of a firearm during a lawful traffic stop. The District Court said
the actions of the officer conducting the stop did not violate the
Constitution. We have an obligation to apply the correct law.
Accordingly, I dissent from the majority opinion. The District
Court based its waiver determination on an incorrect
application of the law because the Government did not
intentionally relinquish or abandon the Wilson-extension
argument. Nor is it clear the Government failed to preserve that
argument at the suppression hearing. But even if the
Government failed to preserve the Wilson-extension argument,
courts are obligated to apply the legal principles they identify
as correct, and the District Court correctly recognized that
officers do not require reasonable suspicion to open a car door
when conducting a traffic stop.
I
A. The District Court was incorrect in finding the
Government waived its Wilson-extension argument and in not
applying Rule 12 of the Federal Rules of Criminal Procedure.
Although an argument may be forfeited if not timely
asserted, waiving an argument requires “intentional
relinquishment or abandonment.” United States v. Olano, 507
U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458,
464 (1938)). In ruling from the bench, the District Court stated:
Let’s make the record clear.
Defendant’s position was you
waived it because you didn’t raise
it. So I think it would be fair to say
you have waived that argument
because you didn’t raise it. I’m
also making a separate finding that
even though I think I could have
found that it was constitutional,
that argument has been waived by
the United States by their failure
to raise it.
App. 40 (emphasis added).
Regardless of whether the Government failed to raise the
Wilson-extension argument in its briefing, the law does not
treat unraised arguments as waived. Olano at 733. Moreover,
it is undisputed that the Government did not intentionally
relinquish or abandon the argument as required for waiver. Id.The District Court thus relied on an incorrect view of the law
when it found the Government waived the Wilson-extension
argument due to a failure to raise.
The majority does not dispute that the District Court
based its ruling on an incorrect view of waiver law.
Nevertheless, the majority says the District Court’s ruling was
just a “misnomer,” because the former version of Rule 12 of
the Federal Rules of Criminal Procedure and outdated case law
developed in reliance on that former version used the term
waiver to include forfeiture. Maj. Op. II.B. But the Supreme
Court amended Rule 12 to resolve that confusion nearly ten
years ago.
To accept the majority’s position requires ignoring the
nearly ten-year-old amendment to Rule 12 of the Federal Rules
of Criminal Procedure, because that amendment resolved
precisely the confusion the majority believes excuses the
District Court’s error. Prior to 2014, Rule 12 stated that failing
to raise a suppression motion “shall constitute waiver thereof,
2
but the court for cause shown may grant relief from the
waiver.” Fed. R. Crim. P. 12(e) (2013). This former version of
Rule 12’s waiver-unless-good-cause-shown language created
confusion because it appeared to be in tension with Rule 52(b)
which permitted a court to review a “plain error that affects
substantial rights,” “even though it was not brought to the
court’s attention.” Fed. R. Crim. P. 52(b). Both rules seemed
to address what a court should do with a suppression motion
not timely raised. In 2008, we found that when a criminal
defendant fails to move to suppress evidence before the District
Court, we apply Rule 12’s waiver rule, not Rule 52(b). United
States v. Rose, 538 F.3d 175, 182–84 (3d Cir. 2008) (citation
omitted). And as cited by the majority, we continued to rely on
the former Rule 12 when we explained what a party must do to
“preserve [a suppression] argument and avoid waiver”
pursuant to Rose. United States v. Joseph, 730 F.3d 336, 342
(3d Cir. 2013).
That all changed in 2014, when the Supreme Court
deleted the word “waiver” from Rule 12. Now, instead of
stating that failure to raise a suppression motion “shall
constitute waiver thereof,” Rule 12 states the motion is
“untimely” and may be considered if the party shows good
cause. Fed. R. Crim. P. 12(c)(3). (The 2014 amendments
relocated the effect of failure to raise issues by pretrial motion
from (e) to (c)(3)). The Rule is silent regarding arguments
opposing motions to suppress. Per the advisory committee
notes accompanying the change, Rule 12 “never required any
determination that a party who failed to make a timely motion
intended to relinquish a defense, objection, or request that was
not raised in a timely fashion.” Fed. R. Crim. P. 12 advisory
committee’s note to 2014 amendment. Nearly a decade has
passed since the Supreme Court made this change to “avoid
possible confusion” brought about by using the term “waiver,”
3
and no intervening caselaw suggests an ongoing confusion
between waiver and forfeiture. 1 Id. Thus, there are no grounds
on which the District Court could conclude a party who failed
to timely move under Rule 12 intended to intentionally
relinquish, and thus waive its right to make such a motion. Nor
is there a basis to conclude a party who failed to raise an
argument in opposition intended to waive that argument either.
Accordingly, the District Court’s waiver ruling should not be
excused as a misnomer. Rather, the District Court should be
required to apply the current version of Rule 12 and determine
if it precluded the Government from advancing the Wilson-
extension argument at the suppression hearing.
B. The Government preserved its Wilson-extension
argument.
The majority believes that even though the District
Court erred in finding waiver, suppression is still appropriate
because the Government nevertheless forfeited the Wilson-
extension argument. Again, I disagree. While it may have
fallen short in its briefing, the Government “timely assert[ed]”
and thus preserved the Wilson-extension argument by
committing to it at the suppression hearing. See Olano, 507 at
733.
While the District Court rightly deserves commendation
for recognizing the Wilson-extension argument correctly
presented the law, it did not conduct the suppression hearing in
a way that makes it possible for us to conclude the Government
1
The Majority identifies post-2014 examples of this Court’s
“inexact usage of ‘waiver’ and ‘forfeiture’” and notes they
“could well have influenced the District Court’s misnomer
here.” Maj. Op. II.B. The point stands that no intervening
Supreme Court caselaw has perpetuated such confusion.
4
failed to preserve that argument. The Court opened
proceedings by asking if “the Government’s position is that not
only—that the opening of the door was appropriate and that’s
based on an argument pursuant to the Terry standard . . .” App.
10 (emphasis added). While the Government answered that
question in the affirmative, affirming its position is “not only”
one argument necessarily implies the existence of at least one
alternative argument. And as soon as the District Court allowed
the Government to speak again, after it announced its
erroneous waiver-based ruling, the Government affirmatively
stated its commitment to the alternative Wilson-extension
argument. App. 37–40. What that leaves us with is a District
Court erroneously finding the “argument has been waived by
the United States by their failure to raise it,” and the
Government responding “for the record” that it “never got to
that point so I’m making that argument.” App. 40, 42.
Accordingly, because I cannot accept the District Court’s
incorrect waiver determination, and because the Government
committed to the Wilson-extension argument prior to any
legally correct disposition, the argument should be preserved
for our review. Moreover, finding the argument preserved
would comport with the Third Circuit’s long-standing tradition
of providing litigants the opportunity to make their cases in
court absent jurisdictional issues.
C. The District Court was obligated to apply the correct
legal principles.
The District Court concluded that officers do not need
reasonable suspicion to open a car door in the context of a
traffic stop, yet it failed to apply that correct legal principle.
District courts are not limited to the legal theories advanced by
the parties, rather they retain the power and obligation to apply
the legal principles the court identifies as correct. Kamen v.
Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991); United States
5
v. Engler, 806 F.2d 425, 433 (3d Cir. 1986).
The District Court noted it did its “own independent
research because I was not familiar with the issue as to whether
an officer needed reasonable articulable suspicion to open a
door.” App. 32. The Court continued, “I conclude that an
officer does not necessarily need reasonable articulable
suspicion to open the door if the initial stop is legitimate.” Id.And the Court found “uncontested that the initial traffic stop
was lawful under the Fourth Amendment.” App. 34. Therefore,
because the initial stop was legitimate, the District Court was
obligated to apply the correct legal principles and find Officer
Gambino’s opening of the door permissible under the Fourth
Amendment.
The majority attempts to diminish the importance of the
District Court’s legal conclusion. It does so by spotlighting the
District Court’s use of conditional language in its discussion of
how it would have ruled had it not found the Government
waived the Wilson-extension argument, as if that somehow
justifies deviating from applying the correct law. But the
District Court’s use of conditional language cuts in favor of the
Government, as the only condition that prevented the District
Court from finding Officer Gambino’s actions constitutional
was its own incorrect finding of waiver. The District Court
said, “even though I think I could have found that it was
constitutional, that argument has been waived by the United
States by their failure to raise it.” App. 40. Stated plainly, the
District Court concluded Officer Gambino’s actions were
constitutional, and it only ruled against the Government
because it did not believe the Government properly explained
why they were constitutional, thus leading to its incorrect
finding of waiver.
Moreover, contrary to the majority’s assertion, the
6
Wilson-extension argument comports with Third Circuit
precedent. Just last year, we found an officer’s actions at a
traffic stop were justified until the moment “he entered the
truck and kneeled on the front seat.” United States v. Hurtt, 31
F.4th 152, 161–63 (3d Cir. 2022). In doing so, we cited United
States v. Ngumezi for its application of “a bright-line rule that
opening a door and entering the interior space of a vehicle
constitutes a Fourth Amendment search” and for its holding
that an officer violated the Fourth Amendment when he
“leaned in across the plane of the door.” Hurtt, 31 F.4th at 163
n.85 (quoting United States v. Ngumezi, 980 F.3d 1285, 1289
(9th Cir. 2020)). While Hurtt was not published at the time of
the District Court’s ruling, the District Court independently
identified what it believed (and we later affirmed) was the
correct law. The District Court was obligated to apply that law.
Accordingly, because Officer Gambino just opened the car
door, but never entered the interior space of the vehicle, he did
not violate the Fourth Amendment and the firearm should not
be suppressed.
D. The exclusionary rule does not support suppression.
This is at worst an instance of the Government engaging
in cursory lawyering, not in constitutionally violative conduct.
The majority and I agree that the Government is correct that
enforcing forfeiture does not promote the exclusionary rule’s
“sole purpose” of “deter[ring] misconduct by law
enforcement.” Davis v. United States, 564 U.S. 229, 246
(2011); Gov’t Br. 1–2, 20. Rather, suppressing the firearm
because of a potential deficiency by the Government’s lawyer
deters no misconduct by any party. And considering the
District Court’s erroneous waiver determination, nor does
upholding suppression encourage district courts to apply the
correct law.
7
Nevertheless, the majority still believes suppression is
appropriate, even if Officer Gambino’s conduct was
constitutionally sound. It finds support for suppression in the
party presentation principle. To the majority’s credit, it is true
that the party presentation principle is a foundational
component of our adversarial system. But it is also true that
“the public legitimacy of our justice system relies on
procedures that are neutral, accurate, consistent, trustworthy,
and fair, and that provide opportunities for error correction.”
Rosales-Mireles, 138 S. Ct. at 1908 (internal quotation marks
omitted). Furthermore, this is wholly unlike the party
presentation principle issue identified by the majority in United
States v. Sineneng-Smith, 140 S. Ct. 1575, 1579–80 (2020).
There, the Ninth Circuit invented new arguments of its own,
invited supplemental briefing on those arguments from amici,
and restructured the oral argument and its decision based on
those, not the plaintiff’s arguments. Id. at 1580–81. Here, the
District Court identified the argument in question, and the
Government committed to that argument at the suppression
hearing, if not in its briefing. The case has come to us, and we
may decide based solely on questions presented by the parties
with no third-party briefing. The preservation of the public
legitimacy of our institution is paramount. Thus, even if the
Government had forfeited its Wilson-extension argument prior
to the suppression hearing, we must hold the principles of
accuracy and error correction outweigh the party presentation
principle to the limited extent it is implicated. Contrary to the
majority opinion, reversing the District Court would not be a
categorical excuse of forfeiture. We would simply do what the
District Court correctly identified as correct, but what it
refused to do based on an erroneous understanding of the law.
II
For the above reasons, I respectfully dissent. I would
8
either remand with instructions to apply the current version of
Rule 12(c) of the Federal Rules of Criminal Procedure or
reverse the order of the District Court.
9