UNITED STATES OF AMERICA, Appellant v. DONTE DOWDELL, a/k/a Pooh
No. 21-3251
United States Court of Appeals for the Third Circuit
June 2, 2023
Before: HARDIMAN, PORTER, and FISHER, Circuit Judges
PRECEDENTIAL. 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.
Mark E. Coyne [ARGUED]
Office of United States Attorney
970 Broad Street
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
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 оther 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
B
The Government charged Dowdell with being a felon in possession of a firearm and ammunition in violation of
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 Gоvernment had waived any objection to his Jardines claim because the Government‘s
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
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 еxpanded 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
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 articulаble 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
II1
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)
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 significаnce.” Barna, 877 F.3d at 146. A party‘s
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 timеly 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
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 arguеd 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
The Supreme Court has routinely recognized that traffic stops pose substantial risks to the рolice 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
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
The dissent‘s further insistence that we cannot excuse conflation of the terms because the Supreme Court has not made the sаme 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
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,
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
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
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 stоp 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
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 thе 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
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 idеntified 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 defеndants. 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
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
* * *
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 litigatеd 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.
United States of America v. Donte Dowdell
No. 21-3251
FISHER, Circuit Judge
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 оf 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
To accept the majority‘s position requires ignoring the nearly ten-year-old amendment to
That all changed in 2014, when the Supreme Court deleted the word “waiver” from
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
Accordingly, because I cannot accept the District Court‘s incorrect waiver detеrmination, 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 principlеs the court identifies as correct. Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991); United States 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
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.
II
For the above reasons, I respectfully dissent. I would