26 F.4th 371
6th Cir.2022Background
- After a vigil, East Cleveland police stopped Akeem Farrow’s car for "slow rolling." Denzell Russell was a passenger in the front seat.
- Officers saw an open bottle in the back, removed and handcuffed both men, frisked them, and searched the car.
- Two loaded firearms and two bullet‑proof vests were recovered—one gun under Farrow’s seat, one under Russell’s seat; both men admitted ownership of the items.
- Russell, a convicted felon, was charged with being a felon in possession of a firearm and moved to suppress the seized evidence; the district court denied suppression and, sua sponte, held Russell lacked Fourth Amendment standing.
- The government did not raise lack‑of‑standing below but asserted it in its opening brief on appeal; the Sixth Circuit evaluated whether the government waived/forfeited the objection and whether plain‑error relief was warranted.
- The court affirmed: government did not waive the claim, plain‑error review was satisfied, and Russell—an unowned car passenger—lacked Fourth Amendment standing to challenge the search.
Issues
| Issue | Russell's Argument | Government's Argument | Held |
|---|---|---|---|
| Did the government waive its lack‑of‑standing objection by not raising it in district court? | Government’s silence and framing of the suppression issue amounted to waiver. | Failure to object below was forfeiture, not waiver; government did not expressly abandon the claim and raised it in its opening brief. | No waiver: forfeiture only; government preserved ability to raise standing on appeal. |
| Can the government raise forfeited Fourth Amendment standing for the first time on appeal? | Russell: allowing this is unfair and deprives defendants of chance to prove standing. | Yes; standing is a merits issue that may be forfeited and reviewed on appeal under Rule 52(b). | Yes: government may raise forfeited standing on appeal and obtain plain‑error review. |
| Did the government show the error (if any) was "plain" and affected its substantial rights under Olano/Rule 52(b)? | Russell: court shouldn’t decide standing sua sponte; defendant lacked notice to develop proof. | The record plainly shows Russell was merely a passenger with no ownership or reasonable expectation of privacy; error (if forfeited) is clear and outcome‑determinative. | Yes: error, if forfeited, was plain and affected substantial rights because suppression would have eliminated the only evidence against Russell. |
| Would correcting the error be necessary to preserve fairness, integrity, or public reputation of proceedings? | Russell: (implicit) protecting defendants from surprise appeals and encouraging full consideration below. | Exclusion where no rights were violated would undermine truthfinding and respect for the law; the exclusionary rule should not benefit one without a personal Fourth Amendment interest. | Yes: allowing suppression when no Fourth Amendment violation occurred would harm judicial integrity; court exercised discretion to correct. |
Key Cases Cited
- Rakas v. Illinois, 439 U.S. 128 (U.S. 1978) (passenger lacks Fourth Amendment interest in areas of vehicle not owned or possessed)
- Byrd v. United States, 138 S. Ct. 1518 (U.S. 2018) (Fourth Amendment rights are personal; standing shorthand for personal rights)
- United States v. Noble, 762 F.3d 509 (6th Cir. 2014) (distinguishing forfeiture from waiver; government may seek plain‑error review on appeal)
- United States v. Olano, 507 U.S. 725 (U.S. 1993) (waiver vs. forfeiture and plain‑error framework under Rule 52(b))
- United States v. Pino, 855 F.2d 357 (6th Cir. 1988) (passenger lacks reasonable expectation of privacy in rental/third‑party vehicle areas)
- United States v. Barajas‑Nunez, 91 F.3d 826 (6th Cir. 1996) (recognizing government can obtain plain‑error review)
- Stone v. Powell, 428 U.S. 465 (U.S. 1976) (exclusionary rule limited where it does not serve deterrence; caution in excluding evidence when rights not implicated)