United States v. Erickson Meko Campbell
11th Cir.
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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 16-10128
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERICKSON MEKO CAMPBELL,
Defendant- Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 3:14-cr-00046-CAR-CHW-1
____________________
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2 Opinion of the Court 16-10128
Before WILLIAM PRYOR, Chief Judge, WILSON, JORDAN,
ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA,
BRASHER, and TJOFLAT, * Circuit Judges.
TJOFLAT, Circuit Judge, delivered the opinion of the Court, in
which WILLIAM PRYOR, Chief Judge, BRANCH, GRANT, LUCK,
LAGOA, and BRASHER, Circuit Judges, joined.
WILLIAM PRYOR, Chief Judge, filed a concurring opinion.
NEWSOM and JORDAN, Circuit Judges, filed a dissenting opinion, in
which WILSON, ROSENBAUM, and JILL PRYOR, Circuit Judges,
joined.
TJOFLAT, Circuit Judge:
Generally, issues that are not raised in a party’s brief on ap-
peal are considered abandoned. But that rule is not ironclad, and
we may exercise our discretion to consider issues not raised by the
parties on appeal. Erickson Meko Campbell appeals the District
Court’s denial of his motion to suppress evidence he claims was
obtained in violation of the Fourth Amendment. Before the panel,
both Campbell and the Government argued about whether a
Fourth Amendment violation occurred. However, neither ad-
dressed whether the good-faith exception to the exclusionary rule
would allow the suppression of that evidence even if a Fourth
Amendment violation did occur. We asked the parties in our en
*Senior Circuit Judge Gerald B. Tjoflat elected to participate in this decision
pursuant to 28 U.S.C. § 46(c).
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16-10128 Opinion of the Court 3
banc briefing notice the following question: “Is the good-faith ex-
ception to the exclusionary rule a proper ground for affirming
Campbell’s conviction despite the government’s failure to raise
that alternative ground before the panel?” We conclude that we
have the power to reach the good-faith exception in this case and
exercise our discretion to do so. We also conclude that the good-
faith exception applies in this case. Accordingly, we affirm the de-
nial of Campbell’s motion to suppress.
I.
A.
On the cool night of December 12, 2013, Greene County
Deputy Sheriff Robert McCannon was patrolling Interstate 20 in
Georgia. Around 9:00 PM that evening, McCannon saw a grey Nis-
san Maxima cross the fog line—the line on the side of the highway
that separates the roadway from the shoulder. So, McCannon ac-
tivated the camera on the dashboard of his police cruiser and began
following the Maxima. After observing the Maxima cross the fog
line a second time and noticing that its rear left turn signal blinked
at an unusually quick pace, he pulled the car over. At that point,
McCannon approached the Maxima from the passenger’s side,
asked the driver—Erickson Campbell—for his driver’s license, and
explained why he pulled him over. McCannon stated that he
stopped Campbell for failing to maintain his lane and for the appar-
ent turn signal issue. At McCannon’s request, Campbell activated
his left turn signal, which again flashed rapidly, and his front signal
lights. McCannon informed Campbell that he most likely had a
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4 Opinion of the Court 16-10128
bulb out, and the two had a short conversation about the cause of
the blinker problem.
After determining that the Maxima’s left turn signal was
malfunctioning, McCannon decided to issue Campbell a warn-
ing—but not a full-on ticket—for failing to comply with two Geor-
gia traffic regulations: failure to maintain signal lights in good
working condition 1 and failure to stay within the driving lane.2
McCannon then asked Campbell to step out of the Maxima and
1 O.C.G.A. § 40–8–26 states, in relevant part:
(a) Any motor vehicle may be equipped . . . with the following signal
lights or devices:
....
(2) A light or lights or mechanical signal device capable of
clearly indicating any intention to turn either to the right or to
the left and which shall be visible from both the front and the
rear.
(b) Every . . . signal light or lights indicating intention to turn shall be
visible and understandable during daytime and nighttime from a dis-
tance of 300 feet from both the front and the rear. . . . [S]uch light or
lights shall at all times be maintained in good working condition.
2 O.C.G.A. § 40–6–48 states, in relevant part:
Whenever any roadway has been divided into two or more clearly
marked lanes for traffic, the following rules, in addition to all others
consistent with this Code section, shall apply:
(1) A vehicle shall be driven as nearly as practicable entirely
within a single lane and shall not be moved from such lane un-
til the driver has first ascertained that such movement can be
made with safety[.]
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16-10128 Opinion of the Court 5
accompany him to the patrol car while he wrote the citation. As
he wrote up the warning, McCannon requested that dispatch run
a check on Campbell’s license. At the same time, he struck up a
conversation with Campbell. He learned where Campbell worked,
that Campbell was en route to Augusta to see his family, that
Campbell had been arrested sixteen years ago for a DUI, and that
Campbell was not traveling with a firearm. Then, McCannon
asked Campbell if he had any counterfeit CDs or DVDs, illegal al-
cohol, marijuana, cocaine, methamphetamine, heroin, ecstasy, or
dead bodies in his car. This second set of questions took about
twenty-five seconds, and Campbell either shook his head or an-
swered no in response to each inquiry. At that point, McCannon
asked Campbell if he could search his car for any of those items,
and Campbell consented.
While McCannon kept writing the warning, Sergeant Pat-
rick Paquette—who had arrived on scene a few minutes earlier—
began searching Campbell’s car. McCannon then finished writing
up the citation, had Campbell sign it, and joined Paquette in the
search. The officers found a 9mm semi-automatic pistol, 9mm am-
munition, a black stocking cap, and a camouflage face mask in a
bag hidden under the carpet in the Maxima’s trunk. Once con-
fronted about the contents of his trunk, Campbell admitted that he
lied about not traveling with a firearm because he was a convicted
felon. So, Campbell was arrested.
B.
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On August 13, 2014, a grand jury indicted Campbell for pos-
sessing a firearm as a convicted felon, in violation of 18 U.S.C. §
922(g)(1). A few months later, Campbell filed a motion to suppress
claiming that the evidence found in the search of his car was ob-
tained in violation of the Fourth Amendment’s prohibition against
unreasonable searches and seizures. Campbell first contended that
the seizure was unreasonable because McCannon lacked reasona-
ble suspicion to believe that a traffic violation had occurred. The
rapidly blinking turn signal, Campbell argued, did not supply rea-
sonable suspicion to make the traffic stop. In Campbell’s view, all
that O.C.G.A. § 40–8–26 requires is that the turn signal “indicat[e]
a driver’s intention to change lanes,” and the Maxima’s left turn
signal was able to do that. That the signal did not blink as designed
was irrelevant, Campbell said, because the statute did not require
that a turn signal “(1) blink in unison with the other turn signal, (2)
blink at a certain pace, or even, (3) blink as intended by the vehicle
manufacturer.”
But even if there was reasonable suspicion, Campbell argued
that the seizure was nevertheless unreasonable because McCannon
prolonged the stop by asking questions unrelated to the purpose of
the stop. Specifically, he challenged questions on the following
topics:
McCannon asked . . . : (1) where [Campbell] was go-
ing, (2) who he was going to see, (3) where he
worked, (4) if he had time off work, (5) when his last
traffic ticket was, (6) if he had ever been arrested, (7)
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16-10128 Opinion of the Court 7
how old his car was, (8) how good of [a] deal he got
on his car, (9) whether he had any counterfeit mer-
chandise in the car, and, (10) if he had a dead body in
the car.
Relying on the Supreme Court’s decision in Rodriguez v. United
States, 575 U.S. 348,135 S. Ct. 1609
(2015), Campbell maintained
that if McCannon prolonged the stop at all through these inquiries,
the stop became unlawful. And if the seizure was an unreasonable
seizure, Campbell concluded, any consent he had given the officers
to search his car was tainted, requiring that the evidence uncovered
during the search be suppressed.
The District Court held an evidentiary hearing on Camp-
bell’s motion to suppress in May 2015. McCannon—whom the
Government called to the stand—was the lone witness. Aside from
his testimony, the Court had the benefit of the video created by
McCannon’s dashboard camera. The video portrays what tran-
spired between McCannon’s activation of the camera and Camp-
bell’s arrest, including the questioning Campbell complains of as
unrelated to the purpose of the stop:
0:00: McCannon activates the camera.
2:05–16: McCannon provides the Sheriff’s Office dis-
patcher with the car’s license plate number. The dis-
patcher runs the number and informs him that it be-
longs to Erickson Campbell, an “active felon.”
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2:31: McCannon activates his patrol car’s flashing
lights.
2:36–58: Campbell pulls over.
3:25–32: McCannon approaches the car from the pas-
senger side and requests Campbell’s driver’s license.
3:34–4:42: McCannon explains to Campbell that he
stopped him for “weaving in [his] lane” and because
his left turn signal was blinking rapidly. McCannon
says the rapid blinking means “you’ve got a bulb out
somewhere.” He then checks the lights in the front
and back of the car, none of which are out. McCan-
non says it must be that the turn signal is “starting to
go bad,” but that he won’t write a ticket for that—just
a warning.
4:43–5:09: McCannon asks Campbell where he is go-
ing. Campbell says he is traveling to Augusta, Geor-
gia. McCannon asks why he is going there, and
Campbell responds that he is going to see his family.
5:10–13: McCannon asks Campbell to step out of the
car and walk with him to the patrol car where he will
write the warning.
5:48: McCannon begins writing the warning.
6:02–10: Campbell asks McCannon about the
weather, and the two discuss a rainstorm from the
previous week.
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6:13–29: McCannon asks Campbell about his family
in Augusta, adding that he knows a little about Au-
gusta. Campbell says he does not know much about
Augusta; he just has family there. McCannon contin-
ues writing the warning.
6:30–57: McCannon asks Campbell what type of work
he does. Campbell says that he works for American
Woodlawn, building for Home Depot and Lowes.
McCannon continues to write the citation.
7:07–27: McCannon asks Campbell where his family
lives in Augusta. Campbell responds that his family
lives off of Watson Road. McCannon indicates he
knows approximately where that is; he continues
writing the citation.
7:48–8:30: McCannon stops writing to retrieve his
jacket from the patrol car.
8:32–38: McCannon asks Campbell if he is traveling
with a firearm. Campbell shakes his head no.
9:07: McCannon acknowledges Sergeant Paquette,
who has just arrived off camera.3
3Sergeant Paquette had observed McCannon’s encounter with Campbell
while patrolling the highway and had pulled over to assist.
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10 Opinion of the Court 16-10128
9:12–18: McCannon asks Paquette to “come here and
let me ask you about this location.” McCannon tells
Campbell that Paquette is from Augusta.
9:31–39: McCannon calls the dispatcher to run a
check on Campbell’s driver’s license.
9:40–54: McCannon asks Campbell if he had been ar-
rested before. Campbell responds yes, about sixteen
years ago, for a DUI.
10:00–56: McCannon and Paquette ask Campbell
about his destination and where his family lives in Au-
gusta, while McCannon continues to intermittently
write the warning.
11:16–19: McCannon: “I know I asked you if you have
any firearms tonight, and you said ‘no.’” Campbell
nods and says, “Yes, sir.”
11:20–45: McCannon: “Any counterfeit merchandise
that you’re taking to your relatives in Augusta? And
what I mean by that is—any purses? Shoes? Shirts?
Any counterfeit or bootleg CDs or DVDs? Anything
like that? Any illegal alcohol? Any marijuana? Any
cocaine? Methamphetamine? Any heroin? Any ec-
stasy? Nothing like that? You don’t have any dead
bodies in your car?” Campbell shakes his head or oth-
erwise responds in the negative to each question.
11:47–55: McCannon: “I know you said you didn’t
have that, and I’m not accusing you of anything—can
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16-10128 Opinion of the Court 11
I search it? Can I search your car for any of those
items I asked you about?” Campbell responds in the
affirmative, nodding and gesturing toward the car.
12:02–13:05: Paquette pats down Campbell after
McCannon indicates that he had not yet done so.
McCannon continues writing the warning.
13:06: Paquette begins searching the car.
13:22–44: McCannon asks Campbell to sign the cita-
tion. Campbell does so and returns it to McCannon.
14:00: McCannon hands the citation to Campbell.
16:18–19:58: McCannon and Paquette search the car.
19:58–20:08: Paquette informs McCannon that he has
discovered a gun and a ski mask.
20:30–21:02: The officers finish searching the car and
place Campbell in handcuffs.
21:25–40: McCannon informs Campbell of his Mi-
randa rights.
24:12–48: McCannon tells Campbell he is under arrest
for felon in possession of a firearm. McCannon places
Campbell in the rear of his patrol car to be taken to
the Greene County jail.
From the time McCannon began writing the warning ticket
to Campbell’s consent to the search, a total of six minutes and
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12 Opinion of the Court 16-10128
seven seconds elapsed. Campbell consented eight minutes and
fifty-seven seconds after McCannon made the stop. And the unre-
lated questioning of which Campbell complains lasted approxi-
mately twenty-five seconds.
C.
At the conclusion of the evidentiary hearing, the District
Court asked the parties for supplemental briefing to address the
possible application of the Supreme Court’s Rodriguez decision.
The District Court also requested supplemental briefing on the ap-
plicability of Davis v. United States, in which the Supreme Court
held that the Fourth Amendment’s exclusionary rule should not
apply when the police act in good-faith reliance on binding appel-
late precedent. 564 U.S. 229, 232,131 S. Ct. 2419
, 2423–24 (2011).
After briefing from both parties on the Rodriguez and good-faith
exception issues, the Court denied Campbell’s motion to suppress
To start, the District Court determined that Campbell’s rap-
idly blinking turn signal provided reasonable suspicion to stop the
Maxima. Georgia’s statute requires that turn signals be in good
working condition, and the Court reasoned that McCannon had
reasonable suspicion to believe the rapidly blinking turn signal vio-
lated this requirement. The Court likewise concluded that McCan-
non had “reasonable suspicion to initiate the stop to determine
whether the front signal lights were functioning properly.” These
findings were based largely on McCannon’s testimony that he had
changed “a couple hundred bulbs on [his] personal vehicles, on
[his] patrol cars, [and] other people’s cars,” so he had “a pretty good
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16-10128 Opinion of the Court 13
knowledge of the bulbs when they go out.” And given its conclu-
sion that the turn signal provided reasonable suspicion, the Court
declined to address the failure-to-maintain-lane violation.
The District Court then turned to the prolongation issue.
On that point, the Court found that McCannon was entitled to ask
Campbell about his destination and the purpose of his trip; the year
his car was made; the last traffic citation he received; his criminal
history; 4 and whether he was traveling with a firearm. As the Dis-
trict Court put it, these questions “either addressed the traffic vio-
lation or were related to legitimate safety concerns.”
But the questions about contraband, the Court said, were
unrelated to the purpose of the stop. These questions—about
counterfeit merchandise, drugs, and dead bodies—and Campbell’s
responses, consumed all of twenty-five seconds. And immediately
following these questions, Campbell consented to the search of the
Maxima. The Court said that those few seconds “McCannon took
to ask a few unrelated questions ‘did not transform the stop into an
unconstitutionally prolonged seizure.’” The Court concluded that
the overall length of the stop was reasonable and that McCannon
conducted the stop “expeditiously.” In doing so, the Court cited to
and ostensibly relied on Rodriguez, but actually applied the ra-
tionale we used in United States v. Griffin, 696 F.3d 1354, 1362 4 Citing United States v. Purcell,236 F.3d 1274, 1280
(11th Cir. 2001), the Dis-
trict Court held that McCannon “lawfully asked Defendant about his criminal
history while he waited on dispatch to run [Defendant’s] license information.”
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14 Opinion of the Court 16-10128
(11th Cir. 2012), after holding that Rodriguez did not alter the test
we established in Griffin. Because the seizure was reasonable, ex-
clusion was unavailable and there was no reason for the Court to
decide whether Campbell’s consent was tainted or whether—as
the Government argued in its supplemental briefing—the good-
faith exception to the exclusionary rule applied. Following the Dis-
trict Court’s ruling, Campbell entered a conditional guilty plea,
preserving the right to appeal the denial of his motion to suppress.
See Fed. R. Crim. P. 11(a)(2).
Campbell appealed and argued that his traffic stop was un-
lawful at its inception and unlawfully prolonged under Rodriguez.
After oral argument, a panel of this Court affirmed the denial of the
motion to suppress. United States v. Campbell, 912 F.3d 1340(11th Cir. 2019). But we withheld the mandate and the panel sua sponte issued a revised opinion, once again affirming. United States v. Campbell,970 F.3d 1342
(11th Cir. 2020). In both opinions, the panel considered the application of the good-faith exception— which was fully briefed in the District Court—despite the Govern- ment’s failure to address the matter on appeal. We then granted Campbell’s petition for rehearing en banc and vacated the panel’s amended opinion. United States v. Campbell,981 F.3d 1014
(11th
Cir. 2020). In our en banc briefing notice to the parties, we asked
counsel to focus their briefs on whether we may affirm based on
the good-faith exception despite the Government’s failure to brief
the issue. Both parties addressed that issue, as well as the issue of
whether the panel correctly applied the good-faith exception. The
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16-10128 Opinion of the Court 15
Government renewed the argument it made in the District Court
that the good-faith exception applied because “Deputy McCan-
non’s brief questioning of Campbell complied with this Court’s
then-binding precedent.” Oral argument was then held before the
en banc Court on June 15, 2021.
II.
“A denial of a motion to suppress involves mixed questions
of fact and law.” United States v. Spivey, 861 F.3d 1207, 1212(11th Cir. 2017) (quotation omitted). We review a district court’s find- ings of fact for clear error, considering all the evidence in the light most favorable to the prevailing party—in this case, the Govern- ment.Id.
But we review de novo a district court’s application of the law to those facts. United States v. Luna-Encinas,603 F.3d 876, 880
(11th Cir. 2010). As the parties do not contest the District
Court’s findings of fact, our review in this case is entirely de novo.
III.
Before the en banc Court, Campbell argues (1) that the Gov-
ernment did not invoke the good-faith exception in its brief to the
panel, so that defense is waived and should not be considered, and
(2) that even if we do consider the good-faith exception, it should
only apply when a “bright-line rule specifically authorize[s]” the of-
ficer’s conduct. We disagree with him on both points. As we will
discuss below, we may exercise our discretion to consider the
good-faith exception despite the Government’s failure to brief the
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16 Opinion of the Court 16-10128
exception to the panel, 5 and we choose to do so based on the im-
portant policy reasons underlying the good-faith exception and the
5 We note that the Government did properly brief the good-faith exception to
the en banc Court as a reason to affirm the District Court. To aid the Court
in reaching the correct decision, parties may make new arguments concerning
the issues we direct them to brief in our en banc briefing notice. Were this
not so, we would simply look to the panel briefs while sitting en banc instead
of requesting the parties submit new briefs. See 11th Cir. R. 35-7 (“An en banc
briefing schedule shall be set by the clerk for all appeals in which rehearing en
banc is granted by the court.”) (emphasis added). And, of course, we are “not
limited to the particular legal theories advanced by the parties, but rather re-
tain[] the independent power to identify and apply the proper construction of
governing law.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99,111 S. Ct. 1711, 1718
(1991); see also United States v. Undetermined Quantities of All Articles of Finished and In-Process Foods,936 F.3d 1341, 1350
(11th Cir. 2019) (“[T]he court is not limited to choosing one side’s position or the other’s. The court’s role is to get it right, not to choose which side’s argument is better and adopt it lock, stock, and barrel . . . . Indeed, the principle is so well settled that it is rarely mentioned.”). The good-faith exception is closely related to the deterrence justification behind the exclusionary rule—we have observed that “although ‘good faith’ is most often framed as an ‘exception’ to the exclusion- ary rule, it is probably more accurately described as a reason for declining to invoke the exclusionary rule in the first place.” United States v. Taylor,935 F.3d 1279
, 1289 n.12 (11th Cir. 2019). So, to the extent the good-faith excep-
tion is merely another argument for affirming the District Court’s denial of
the suppression motion, it has been properly made to the en banc Court.
But putting that aside, this Court may not consider issues forfeited on
appeal without first applying one of our forfeiture exceptions, whether sitting
as a panel or en banc. See infra Part III.A.i. As we have previously indicated
that the Government “bears the burden of demonstrating that the good faith
exception applies,” the exception could also be conceptualized as a separate
issue which the Government must raise. United States v. Morales, 987 F.3d
966, 974 (11th Cir. 2021). Accordingly, we analyze the good-faith exception
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16-10128 Opinion of the Court 17
circumstances of this case. Then, with the good-faith exception
squarely before us, we will explain why the exception applies to
McCannon’s search of Campbell’s car.
A.
Naturally, we start with whether we may consider the good-
faith exception to affirm the District Court, despite the Govern-
ment’s failure to raise the exception in its brief before the panel.
We begin by explaining how the party presentation principle inter-
acts with our caselaw on abandonment, waiver, and forfeiture, and
why issues not briefed on direct appeal should be treated as for-
feited. Next, we address the dissent’s contention that this case in-
volves waiver, not forfeiture. We then turn to our forfeiture ex-
ceptions and explain why this is an extraordinary circumstance in
which we have chosen to exercise our discretion to consider the
good-faith exception in this case.
i.
Typically, issues not raised in the initial brief on appeal are
deemed abandoned. United States v. Levy, 379 F.3d 1241, 1242–45 (11th Cir. 2004) (collecting cases). Describing issues not raised in the initial brief as “abandoned” has a long history in this Court— our very first case as the Eleventh Circuit contained a footnote de- scribing several of the appellant’s claims as “abandoned” on appeal. under our forfeiture exceptions to explain why this is an extraordinary circum- stance in which we may reach the good-faith exception even if it is a separate, forfeited issue. USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 18 of 132 18 Opinion of the Court 16-10128 Bonner v. City of Prichard,661 F.2d 1206
, 1209 n.4 (11th Cir. 1981) (en banc). However, our caselaw has been less than clear about whether an issue abandoned on appeal has been waived or merely forfeited—a problem made all the more troublesome by the way jurists sometimes use the words interchangeably. Kontrick v. Ryan,540 U.S. 443
, 458 n.13,124 S. Ct. 906
, 917 n.13 (2004) (noting that “jurists often use the words [waiver and forfeiture] inter- changeably”) (quotation omitted); compare United States v. Ro- bles,408 F.3d 1324
, 1326 n.1 (11th Cir. 2005) (describing abandoned claims as “waived”), and United States v. Day,405 F.3d 1293
, 1294 n.1 (11th Cir. 2005) (describing abandoned claims as “waived or abandoned”), with United States v. Durham,795 F.3d 1329, 1331
(11th Cir. 2015) (en banc) (abrogating circuit precedent to allow parties to raise abandoned issues in supplemental filings when in- tervening Supreme Court precedent changes circuit law), and United States v. Godoy,821 F.2d 1498, 1504
(11th Cir. 1987) (apply- ing our forfeiture exceptions to reach an issue not raised in the dis- trict court or on appeal), and United States v. Levy,391 F.3d 1327, 1335
(11th Cir. 2004) (Hull, J., concurring) (“The issue is not
whether this Court has the power to consider issues not raised in
the initial brief; of course it does.”). This waiver/forfeiture distinc-
tion matters due to the party presentation principle.
Under the party presentation principle, American courts
function in an “adversarial system of adjudication” whereby “we
rely on the parties to frame the issues for decision and assign to
courts the role of neutral arbiter of matters the parties present.”
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16-10128 Opinion of the Court 19
United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579(2020). This 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 relief.” Greenlaw v. United States,554 U.S. 237, 244
,128 S. Ct. 2559, 2564
(2008) (quotation omitted). Ac- cordingly, it is inappropriate for a court to raise an issue sua sponte in most situations. However, the “party presentation principle is supple, not ironclad,” and there are “no doubt circumstances in which a modest initiating role for a court is appropriate.” Sineneng-Smith,140 S. Ct. at 1579
. To this end, the Supreme Court has recognized a distinction between waived issues and forfeited issues. Wood v. Milyard,566 U.S. 463
, 470 n.4,132 S. Ct. 1826
, 1832 n.4 (2012); Day v. McDonough,547 U.S. 198, 199
,126 S. Ct. 1675, 1678
(2006).
“Although jurists often use the words interchangeably, for-
feiture is the failure to make the timely assertion of a right; waiver
is the intentional relinquishment or abandonment of a known
right.” Kontrick, 540 U.S. at 458n.13,124 S. Ct. at 917
n.13 (quota-
tion omitted). As federal courts do not have “carte blanche to de-
part from the principle of party presentation basic to our adversary
system,” it is an “abuse of discretion” for a court “to override a
[party’s] deliberate waiver.” Wood, 566 U.S. at 472–73, 132 S. Ct.
at 1833–34 (quotations omitted). Waiver directly implicates the
power of the parties to control the course of the litigation; if a party
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20 Opinion of the Court 16-10128
affirmatively and intentionally relinquishes an issue, then courts
must respect that decision.6
In contrast, courts do have the ability to “resurrect” forfeited
issues sua sponte in “extraordinary circumstances.” Id.at 471 n.5,132 S. Ct. at 1833
n.5. This is because “the refusal to consider ar- guments not raised is a sound prudential practice, rather than a stat- utory or constitutional mandate, and there are times when pru- dence dictates the contrary.” Davis v. United States,512 U.S. 452, 464
,114 S. Ct. 2350, 2358
(1994) (Scalia, J., concurring). The degree to which we adhere to the prudential practice of forfeiture and the conditions under which we will excuse it are up to us as an appel- late court. J. Dickson Phillips, Jr., The Appellate Review Function: Scope of Review, 47 Law & Cont. Probs. 1, 3 (1984). Conse- quently, we have identified five situations in which we may exer- cise our discretion to consider a forfeited issue: (1) the issue in- volves 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 substan- tial 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. Access Now, Inc. v. Sw. Airlines Co., 385 6 However, there are limited exceptions even to this. For example, “[s]ubject- matter jurisdiction can never be waived or forfeited.” Gonzalez v. Thaler,565 U.S. 134
, 141,132 S. Ct. 641
, 648 (2012). USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 21 of 132 16-10128 Opinion of the Court21 F.3d 1324, 1332
(11th Cir. 2004) (quotation omitted); see also Go- doy,821 F.2d at 1504
. 7
To clarify our caselaw, we 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 Access Now forfeiture exceptions applies. 8 We adopt
7 The dissent takes issue with our application of the Access Now situations to
the abandonment context. Dissenting Op. at 43–44. According to the dissent,
the Access Now situations apply only to forfeitures that occur in the district
court, not on appeal, and they “misfit” the abandonment context. Id.How- ever, while we have most often used the Access Now situations to excuse for- feitures in the district court, we have also used them to address issues aban- doned on appeal. See, e.g., Godoy,821 F.2d at 1504
. Furthermore, we took this case en banc largely to clarify any ambiguities in our caselaw concerning abandonment; even if we had not used the Access Now situations before in this context, we would still need to provide some rule for when we may exer- cise our discretion. The Access Now situations provide a clear, well-developed standard for addressing forfeitures on appeal, and we see no problem with ap- plying them in the abandonment context. And, importantly, these situations only act as a first step in considering whether we will excuse a party’s forfei- ture; we must then decide whether extraordinary circumstances warrant ex- ercising our discretion to excuse the forfeiture after finding an Access Now situation applies. 8The Supreme Court has also recently indicated that parties forfeit issues not briefed on appeal. See, e.g, TransUnion LLC v. Ramirez,141 S. Ct. 2190
, 2210 n.6 (2021); Kingdomware Techs., Inc. v. United States,579 U.S. 162, 173
,136 S. Ct. 1969, 1978
(2016). And we are not alone in holding that appellate courts may sua sponte address issues not raised in the initial briefs. Dorris v. Absher,179 F.3d 420
, 425–26 (6th Cir. 1999) (“[T]he court may choose to entertain arguments not raised [in the briefs] by the parties when failure to do so would USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 22 of 132 22 Opinion of the Court 16-10128 this position for several reasons. First, our abandonment rule is prudential, not jurisdictional. Levy,379 F.3d at 1244
(describing the rule as a “procedural default rule[]” that “serves valuable pur- poses”); United States v. U.S. Stem Cell Clinic, LLC,998 F.3d 1302, 1312
(11th Cir. 2021) (Jordan, J., concurring) (explaining that “the abandonment rule (sometimes called the waiver rule) is prudential in nature”); United States v. Higdon,418 F.3d 1136, 1137
(11th Cir. 2005) (Hull, J., concurring) (“This Court has repeatedly followed the prudential rule that new issues not raised in opening briefs will not be considered by the court.”). As a prudential rule, we ought to be able to excuse a violation of the rule “when prudence dic- tates.” Davis,512 U.S. at 464
,114 S. Ct. at 2358
(Scalia, J., concur- ring). Treating a party’s failure to raise an issue in its initial brief as a waiver would remove our discretion to consider issues not raised constitute a miscarriage of justice.”); United States v. Hoyt,888 F.2d 1257, 1258
(9th Cir. 1989) (“Although Hoyt did not raise the constitutionality of the assessment in his appeal, a court of appeals may review issues sua sponte un- der exceptional circumstances, where substantial public interests are involved, or where to not do so would be unduly harsh to one or both of the parties.”); Cont’l Ins. Cos. v. Ne. Pharm. & Chem. Co., Inc.,842 F.2d 977, 984
(8th Cir. 1988) (“Ordinarily, we consider only issues argued in the briefs filed by the parties . . . [n]onetheless, we can consider issues not raised in the briefs or in oral argument, particularly when substantial public interests are involved.”); Consumers Union of U.S. v. Fed. Power Comm’n,540 F.2d 656, 662
(D.C. Cir.
1974) (“[W]e may also consider points not raised in the briefs or in oral argu-
ment.”). However, due to the frequent confusion surrounding the terms
“waiver” and “forfeiture,” we feel it is appropriate to explain why issues not
briefed on appeal are only forfeited, not waived.
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 23 of 132
16-10128 Opinion of the Court 23
when appropriate and would effectively transform our abandon-
ment rule from prudential to jurisdictional.
Additionally, the Supreme Court has advised appellate law-
yers to focus their briefing on their strongest, most pertinent argu-
ments, even if they have many “colorable claims.” Jones v. Barnes,
463 U.S. 745, 750–54,103 S. Ct. 3308
, 3312–14 (1983). As the Court
explained:
Most cases present only one, two, or three significant
questions. Usually, if you cannot win on a few major
points, the others are not likely to help, and to at-
tempt to deal with a great many in the limited num-
ber of pages allowed for briefs will mean that none
may receive adequate attention. The effect of adding
weak arguments will be to dilute the force of the
stronger ones.
Id. at 752,103 S. Ct. at 3313
(quotation omitted). We have echoed the Supreme Court’s advice, instructing lawyers to be “highly se- lective about the issues to be argued on appeal,” even in death pen- alty cases. Johnson v. Alabama,256 F.3d 1156
, 1188 (11th Cir. 2001) (quoting United States v. Battle,163 F.3d 1
(11th Cir. 1998)). And
yet, lawyers cannot always know which issues or arguments an ap-
pellate court will find persuasive ahead of time. Classifying a fail-
ure to brief an issue as a waiver would unduly punish lawyers at-
tempting to follow the Supreme Court’s advice on appellate brief-
ing by removing even the possibility of addressing an important
issue not briefed in an extraordinary case. Forfeiture is a sufficient
penalty to incentivize lawyers to timely and carefully brief
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 24 of 132
24 Opinion of the Court 16-10128
important issues while still leaving some leeway for both courts
and parties.
And unlike forfeiture, which occurs automatically whenever
a party fails to “timely assert” their rights, waiver is a question of
intent. Kontrick, 540 U.S. at 458n.13,124 S. Ct. at 917
n.13. Intent is an evidentiary matter, but our review of the evidence is limited to the certified record. Wilson v. Apfel,179 F.3d 1276, 1279
(11th
Cir. 1999). While trial courts regularly conduct evidentiary hear-
ings and make findings of facts, appellate courts lack both the pro-
cedures and the expertise to accept and evaluate new evidence. So,
while a party can of course choose to waive its rights at any time,
on appeal they can only do so through a clear, affirmative state-
ment, as we are unable to conduct an evidentiary investigation into
an ambiguous indication of intent.9
This 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. See Thomas v.
Crosby, 371 F.3d 782, 793 (11th Cir. 2004) (Tjoflat, J., concurring).
To consider an issue abandoned on appeal, whether on a party’s
motion or sua sponte,10 we must first find that one of our forfeiture
9 Naturally, this does not impair our ability to review waivers that occurred in
the district court, as the evidence for such waivers will be in the certified rec-
ord.
10With the benefit of hindsight, we concede that it would have been wise for
the panel to issue a supplemental briefing notice to direct the parties to brief
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 25 of 132
16-10128 Opinion of the Court 25
exceptions applies and then decide whether the issue is extraordi-
nary enough for us to exercise our discretion and excuse the forfei-
ture. In most cases, an issue abandoned on appeal should still be
dismissed without reaching the merits.
ii.
The Government failed to brief the good-faith exception on
appeal. Accordingly, the exception is forfeited. 11 However, before
the good-faith-exception issue and our forfeiture exceptions before we ad-
dressed it sua sponte. Parties should have an opportunity to argue a ground
abandoned on appeal before this Court relies on that ground. But now, the
parties have had ample opportunity to brief the good-faith exception before
the en banc Court. And, in any event, the parties both fully briefed the good-
faith exception before the District Court. So, Campbell and the Government
have had “an opportunity to reflect upon and respond in writing to the argu-
ments that [their] adversary is raising.” Hamilton v. Southland Christian Sch.,
Inc., 680 F.3d 1316, 1319(11th Cir. 2012). There are thus no longer any con- cerns that the parties are unaware that this Court will address the good-faith exception. 11 The dissent makes much hay out of the panel opinions’ description of the Government’s failure to brief the good-faith exception as waiver, not forfei- ture. Dissenting Op. at 3–4, 19–20, 25. While both panel opinions did describe the briefing failure as a “waiver,” they went on to explain that waiver is a “pru- dential doctrine,” and so appellate courts could reach waived issues in limited circumstances. United States v. Campbell,970 F.3d 1342
, 1358–59 (11th Cir. 2020); United States v. Campbell,912 F.3d 1340
, 1355–56 (11th Cir. 2019). This description aligns with forfeiture, not waiver, and represents only a mislabel- ing on the part of the panel majority—a mislabeling which the Supreme Court has recognized is common in American jurisprudence. Kontrick,540 U.S. at 458
n.13,124 S. Ct. at 917
n.13. The dissent’s implied suggestion that the en banc Court is overruling the panel to avoid the effects of waiver thus disre- gards the actual holdings of the panel opinions. And in any event, the panel USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 26 of 132 26 Opinion of the Court 16-10128 turning to our forfeiture exceptions, we pause to address the dis- sent’s contention that the Government conceded it waived the good-faith exception at en banc oral argument. Dissenting Op. at 30. This supposed concession is based on the Government’s acknowledgement that it was “conscious” of the good-faith excep- tion when briefing to the panel.Id.
at 27–30. There are several
problems with the dissent’s analysis.
The first and most egregious problem is that the dissent es-
sentially conducted an evidentiary hearing at oral argument and
then made findings of fact in its opinion. It is, of course, appropri-
ate for an appellate judge to ask counsel at oral argument whether
they are waiving or have waived an issue. Counsel will answer yes
or no, and we may rely on that answer due to counsel’s ethical ob-
ligations to this Court. The dissenting judges did not pursue this
route.
Rather, the dissenting judges sought to elicit evidence at en
banc oral argument about the Government’s knowledge and inten-
tions while writing its brief to the panel. They repeatedly ques-
tioned whether the omission of the good-faith exception was “un-
witting” or “inadvertent” and whether the Government was “con-
scious” of the good-faith exception at the time. Id.at 27–29. These questions did not probe the caselaw, the certified record, or the Government’s position on appeal, but instead sought testimony on opinions are both vacated now and so do not bind the en banc Court or, in- deed, anyone. USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 27 of 132 16-10128 Opinion of the Court 27 the knowledge and intentions of the Government attorney who wrote the panel brief in 2016, five years before the en banc oral argument. Then, from the Government’s acknowledgment that it was “conscious” of the good-faith exception—and conscious in the sense that the Government was “aware of the existence of the good-faith issue in the district court”—the dissent concludes that the Government intended to waive the good-faith exception in its opening brief to the panel.Id.
at 27–30. This conclusion is effec- tively a finding of fact based on evidence adduced at oral argument. It is akin to deciding a case based on an affidavit or exhibit handed to the Court during oral argument. While the dissent may read Supreme Court precedent on waiver as requiring evidentiary hear- ings before appellate courts,id.
at 31–33, we find no such require-
ment. The dissent’s antics would radically transform the nature of
oral arguments in this Court, an ironic position for an opinion os-
tensibly aimed at limiting judicial power. 12
12 The dissent accuses us of “slicing the bologna a little thin” and of “magic-
words formalism” by distinguishing between eliciting testimony at oral argu-
ment and asking a party what their legal position is or was. Dissenting Op. at
31–32. Let us explain further then. The distinction lies in whether the court
is treating the attorney as an attorney or as a witness. Attorneys represent
their clients and can make binding decisions in their name. Witnesses testify
about matters on which they have personal knowledge to aid the trier of fact
in making findings of fact. Fed. R. of Evid. 602. We may inquire of attorneys
about the legal positions their clients have taken throughout the course of the
litigation. We may not ask attorneys to provide new evidence with which to
make our own findings of fact. This distinction between treating attorneys as
attorneys versus treating attorneys as witnesses is absolutely critical, as the
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 28 of 132
28 Opinion of the Court 16-10128
Even if we were to consider the dissent’s evidence of waiver,
we would be unpersuaded. For starters, the Government attorney
who argued before the en banc Court, Francesco Valentini, did not
write the Government’s brief to the panel. Valentini did not even
appear in this case until shortly before we granted en banc review
in 2020. Any information he may have had about the panel brief
writer’s knowledge or intentions would be hearsay, and reliance on
hearsay is a dubious proposition at best. 13
latter situation usurps the role of the trier of fact on appeal. As we have ex-
plained, the dissent is treating the Government attorney as a witness by mak-
ing dispositive findings of fact based on information elicited at oral argument
about what the panel brief writer—an entirely different attorney—knew or
intended five years prior when writing the Government’s panel brief. This
determination is beyond the scope of appellate court review, and we refuse to
engage in it.
13 Notably, the dissent never outright denies that Valentini’s testimony is hear-
say. Instead, the dissent responds by pointing out that Valentini is a Govern-
ment attorney authorized to speak on the Government’s behalf and by reiter-
ating that Valentini described the Government’s actions as “conscious” at oral
argument despite describing them as “unwitting” in the en banc brief he au-
thored. Dissenting Op. at 33–35. Respectfully, we fail to see how either of
these points is relevant. Waiver is a matter of intent, and the supposed waiver
here occurred in the Government’s brief to the panel. Accordingly, it is the
intent of the panel brief writer that controls. Valentini’s status as a Govern-
ment agent does not grant him any special knowledge about the panel brief
writer’s knowledge or intentions five years prior. Likewise, the apparent con-
tradiction between what Valentini wrote in the Government’s en banc brief
and what he said at oral argument also does not indicate any special
knowledge about the panel brief writer’s knowledge or intentions—if any-
thing, this contradiction undermines his credibility as a witness. And, of
course, this whole discussion on hearsay only serves to further underscore the
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 29 of 132
16-10128 Opinion of the Court 29
The dissent also only credits the portions of the Govern-
ment’s testimony that supports its position. The dissent ignores or
discounts the Government’s multiple statements that it did not
make a “strategic” decision not to brief the good-faith exception.
These statements are inconvenient for the dissent because they in-
dicate the Government merely made a mistake by failing to brief
the good-faith exception and thus had no intention to affirmatively
waive the exception. Of course, were this Court a trial court, we
could choose to credit some portions of the Government’s testi-
mony and discredit others—but we are not a trial court. The dis-
sent seems to have forgotten this simple fact.
The final problem with the dissent’s analysis is that it treats
the mere failure of the Government to brief the good-faith excep-
tion as an affirmative waiver, simply because the Government was
aware of the exception. For the reasons explained above, we think
it is more appropriate to treat the failure to raise an issue in a brief
as forfeiture, not waiver—a position with which the dissent nomi-
nally agrees. Dissenting Op. at 25. However, the dissent’s analysis
is premised on the idea that if a party is aware of an issue and does
not brief it, they necessarily must have intended to waive the posi-
tion. This conception of waiver would require us to treat any issue
discussed in the district court but not briefed on appeal as waived,
as the lawyer on appeal would at least have constructive
absurdity of appellate courts eliciting testimony at oral argument and then re-
lying on that testimony to decide the case.
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 30 of 132
30 Opinion of the Court 16-10128
knowledge of the district court argument. So while the dissent
may claim to agree that the mere failure to brief an issue on appeal
results in forfeiture, its reasoning would only allow appellate courts
to excuse a party’s failure to brief an issue on appeal when that issue
also was not raised in the district court. Requiring a double forfei-
ture to excuse a forfeiture on appeal would be a strange rule in-
deed, and one that would effectively extinguish much of the discre-
tion we have to consider important issues not raised by the parties
in extraordinary circumstances. We believe treating the mere fail-
ure to brief an issue as forfeiture strikes the appropriate balance be-
tween respecting the party presentation principle and retaining the
discretion to address important issues in extraordinary circum-
stances.
iii.
Turning to the forfeiture exceptions, we conclude that the
fourth exception—where the proper resolution of the issue is be-
yond any doubt—applies here. As we explain in part III.B.iii,
United States v. Griffin, 696 F.3d 1354(11th Cir. 2012), which es- tablished this Court’s standard for prolongation prior to Rodriguez v. United States,575 U.S. 348
,135 S. Ct. 1609
(2015), is on all fours
with this case. The District Court found that McCannon’s conduct
during the stop conformed to Griffin’s prolongation standard. Had
the District Court realized that Rodriguez abrogated Griffin, we
have no doubt that the Court would have denied the suppression
motion under the good-faith exception instead—in fact, the Court
explicitly stated that it did not address the exception only
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 31 of 132
16-10128 Opinion of the Court 31
“[b]ecause the stop, search, and seizure in this case were lawful.”
Accordingly, we have all the findings of fact necessary to consider
whether McCannon acted in good faith reliance on Griffin, and that
purely legal conclusion jumps off the page. Even the dissent does
not contest that the proper resolution of applying the good-faith
exception is beyond any doubt, should we reach it.
Having identified an applicable forfeiture exception, we
must now determine whether this case presents an extraordinary
circumstance such that we should exercise our discretion to excuse
the Government’s forfeiture. In light of the policy underpinnings
of the exclusionary rule and the specific circumstances of this case,
we conclude that it does.
The Supreme Court has repeatedly emphasized that “the
governments’ use of evidence obtained in violation of the Fourth
Amendment does not itself violate the Constitution.” Pa. Bd. of
Prob. & Parole v. Scott, 524 U.S. 357, 362,118 S. Ct. 2014, 2019
(1998); see United States v. Leon,468 U.S. 897, 906
,104 S. Ct. 3405
, 3411–12 (1984); Stone v. Powell,428 U.S. 465, 482, 486
,96 S. Ct. 3037
, 3046–47, 3048–49 (1976). Instead, the exclusionary rule is “a judicially created means of deterring illegal searches and seizures.” Scott,524 U.S. at 363
,118 S. Ct. at 2019
. The exclusionary rule’s “sole purpose,” the Supreme Court has elaborated, “is to deter fu- ture Fourth Amendment violations.” Davis v. United States,564 U.S. 229
, 236–37,131 S. Ct. 2419, 2426
(2011). But because the ex- clusionary rule is “prudential rather than constitutionally man- dated,” it is “applicable only where its deterrence benefits outweigh USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 32 of 132 32 Opinion of the Court 16-10128 its substantial social costs.” Scott,524 U.S. at 363
,118 S. Ct. at 2019
(quotations omitted). These costs—which include the require- ment that courts “ignore reliable, trustworthy evidence bearing on guilt or innocence”—exact a “heavy toll on both the judicial system and society at large.” Davis,564 U.S. at 237
,131 S. Ct. at 2427
. This is because the ultimate effect of the exclusionary rule “in many cases, is to suppress the truth and set the criminal loose in the com- munity without punishment.”Id.
The deterrence value provided by exclusion corresponds to
“the culpability of the law enforcement conduct” at issue. Herring
v. United States, 555 U.S. 135, 143,129 S. Ct. 695, 701
(2009). “When the police exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights, the deterrent value of ex- clusion is strong and tends to outweigh the resulting costs.” Davis,564 U.S. at 238
,131 S. Ct. at 2427
(quotations omitted). But when an officer “conducts a search in reliance on binding appellate prec- edent,” he “does no more than act as a reasonable officer would and should act under the circumstances.”Id. at 241
,131 S. Ct. at 2429
(quotation omitted). In other words, an officer who relies on binding appellate precedent has no culpability whatsoever. Exclud- ing evidence in these circumstances would only serve “to discour- age the officer from doing his duty.”Id.
(quotation omitted). And the exclusionary rule simply cannot “pay its way” without offset- ting its high social costs with commensurate deterrence value. Leon,468 U.S. at 907
n.6,104 S. Ct. at 3412
n.6 (quotations omit- ted). Suppression of evidence, then, is our “last resort, not our first USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 33 of 132 16-10128 Opinion of the Court 33 impulse.” Hudson v. Michigan,547 U.S. 586, 591
,126 S. Ct. 2159, 2163
(2006).
As the Supreme Court’s precedent on the exclusionary rule
and the good-faith exception makes clear, this Court has an extraor-
dinary interest in protecting the public and encouraging good po-
lice 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. Standing alone, the strong policy considera-
tions underlying the exclusionary rule may well be sufficient to jus-
tify exercising our discretion to excuse the Government’s forfeiture
and address the merits. However, there are also case specific rea-
sons for why this case presents an extraordinary circumstance such
that we should exercise our discretion to excuse the Government’s
forfeiture of the good-faith exception.
Chief amongst these reasons is the District Court’s treat-
ment of the suppression motion. The District Court correctly con-
cluded that McCannon’s actions conformed with the Griffin stand-
ard. See infra Part III.B.iii. On that basis, the Court correctly de-
nied the suppression motion. The Court’s only error was applying
Griffin to the wrong part of the exclusionary rule test—here, Grif-
fin spoke to the deterrence value of exclusion, not to whether a
Fourth Amendment violation occurred. We are loath to reverse
the District Court simply because the Government failed to ade-
quately defend the Court’s ultimately correct judgment. And we
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 34 of 132
34 Opinion of the Court 16-10128
have “discretion to affirm on any ground supported by the law and
the record that will not expand the relief granted below.” Upper
Skagit Indian Tribe v. Lundgren, 138 S. Ct. 1649, 1654(2018); see also SEC v. Chenery Corp.,318 U.S. 80, 88
,63 S. Ct. 454, 459
(1943) (“[W]e do not disturb the settled rule that, in reviewing the deci- sion of a lower court, it must be affirmed if the result is correct ‘although the lower court relied upon a wrong ground or gave a wrong reason.’” (quoting Helvering v. Gowran,302 U.S. 238, 245
,58 S. Ct. 154, 158
(1937))). Exercising our discretion to reach the
good-faith exception is thus particularly appropriate in this case to
avoid reversing a correct judgment.
This case is also extraordinary as it is a good-faith exception
case in which there are no material factual disputes. 14 Accordingly,
the question of whether the good-faith exception applies has be-
come a pure question of law in which the policy considerations be-
hind the exclusionary rule lay starkly before us. And just as trial
courts are particularly well-suited to making findings of fact, appel-
late courts are particularly well-suited to answering questions of
law. See Salve Regina Coll. v. Russell, 499 U.S. 225, 232,111 S. Ct. 1217, 1221
(1991) (“Courts of appeals . . . are structurally suited to
the collaborative juridical process that promotes decisional accu-
racy. With the record having been constructed below and settled
for purposes of the appeal, appellate judges are able to devote their
14Unlike, for example, a case involving good-faith reliance on a warrant, in
which there are often substantive factual disputes. See Leon, 468 U.S. at 922–
25, 104 S. Ct. at 3420–22.
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 35 of 132
16-10128 Opinion of the Court 35
primary attention to legal issues.”). This case is thus well within
our wheelhouse as an appellate court—we need only apply our
own formerly binding precedent to uncontested facts to protect the
clear and pressing interests of society at large.
Finally, this is an extraordinary case because Campbell’s
own arguments to the panel placed the good-faith exception
squarely before us, even though neither he nor the Government
directly addressed the issue. Campbell argued before the panel that
Rodriguez rejected a de minimis prolongation rule and thus abro-
gated Griffin. We agree. See infra Part III.B.ii. But arguing that a
Supreme Court case abrogated circuit precedent and thus rendered
an officer’s stop unconstitutional after the fact logically implicates
the possibility of good faith reliance on binding appellate prece-
dent. This is even more true when the District Court explicitly
found in its denial of the suppression motion that the officer’s con-
duct conformed to our previously binding appellate precedent’s re-
quirements. To ignore the good-faith exception, we would have
to deliberately blind ourselves to the facts of this case and to the
controlling law while also disregarding the obvious legal implica-
tions of Campbell’s arguments. We simply cannot do this and re-
tain our integrity as an independent court of law.
The party presentation principle is a real limit on the ability
of American courts to consider issues not presented by the parties.
We may not consider issues intentionally waived by the parties,
and we should not consider forfeited issues except in extraordinary
circumstances. This is one such extraordinary circumstance. For
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 36 of 132
36 Opinion of the Court 16-10128
the reasons expressed above, we choose to exercise our discretion
to excuse the Government’s forfeiture and address the good-faith
exception.
B.
Having resolved the issue of whether we will excuse the
Government’s forfeiture of the good-faith exception, we turn to
the merits of this case. Below, we first address whether Campbell’s
rapidly blinking turn signal provided McCannon with reasonable
suspicion to believe that Campbell’s Maxima violated the traffic
code. Then, we proceed to the issue of whether McCannon’s ques-
tions unlawfully prolonged his stop of Campbell. And, to wrap up,
we determine whether the good-faith exception applies in this case.
i.
A traffic stop is a seizure within the meaning of the Fourth
Amendment. Whren v. United States, 517 U.S. 806, 809–10,116 S. Ct. 1769, 1772
(1996). And to comply with the Fourth Amend- ment, an officer must have reasonable suspicion. Heien v. North Carolina,574 U.S. 54
, 60,135 S. Ct. 530, 536
(2014) (“All parties agree that to justify [a traffic stop], officers need only reasonable suspicion[.]” (quotation omitted)). 15 In other words, an officer 15The parties and the District Court mention needing reasonable suspicion or probable cause. This framing is understandable given the Supreme Court’s declaration in Whren that “the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has oc- curred.” Whren,517 U.S. at 810
,116 S. Ct. at 1772
. We have also echoed that standard. See United States v. Pierre,825 F.3d 1183, 1192
(11th Cir. 2016) USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 37 of 132 16-10128 Opinion of the Court 37 making a stop must have “a particularized and objective basis for suspecting the person stopped of criminal activity.” Navarette v. California,572 U.S. 393, 396
,134 S. Ct. 1683, 1687
(2014) (alteration adopted) (quotations omitted). Even minor traffic violations qual- ify as criminal activity. See United States v. Chanthasouxat,342 F.3d 1271, 1277
(11th Cir. 2003); see also Holeman v. City of New London,425 F.3d 184
, 189–90 (2d Cir. 2005). So, the question here
is whether Campbell’s rapidly blinking turn signal created reason-
able suspicion that a traffic violation had occurred. We conclude
that it did.
The warning Campbell received stated that he had a “defec-
tive” turn signal. In Georgia, the proper functioning of a turn signal
is covered by O.C.G.A. § 40–8–26, which, for our purposes, re-
quires two things. First, the statute requires that a vehicle be
equipped with right and left turn signal lights that are “visible and
understandable during daytime and nighttime from a distance of
300 feet from both the front and the rear.” § 40–8–26(a)(2), (b).
And second, those signal lights “shall at all times be maintained in
good working condition.” Id. These requirements are, as the Dis-
trict Court correctly noted, separate. If they were not, only when
an otherwise-adequate signal light completely failed to function
(“Pursuant to the Fourth Amendment, police may stop a vehicle if they have
probable cause to believe that a traffic violation has occurred.”). But the Su-
preme Court has since made clear that reasonable suspicion is all that is re-
quired. See Heien, 574 U.S. at 60, 135 S. Ct. at 536. In other words, while probable cause is sufficient, only reasonable suspicion is necessary. USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 38 of 132 38 Opinion of the Court 16-10128 would the statute be violated, and the “good working condition” language of the statute would be rendered superfluous. Because it is “canonical that courts must read a statute to give effect to all pro- visions and avoid rendering any part ‘inoperative or superfluous, void or insignificant,’” “good working condition” must mean more. U.S. Commodity Futures Trading Comm’n v. Hunter Wise Commodities, LLC,749 F.3d 967, 977
(11th Cir. 2014) (quoting Corley v. United States,556 U.S. 303, 314
,129 S. Ct. 1558, 1566
(2009))
Typically, when a turn signal blinks rapidly, it does so to no-
tify the driver that a bulb is out or is about to go out. At least one
other federal court has noted as much. United States v. Baley, 505
F. Supp. 3d 481, 489 (E.D. Pa. 2020) (“Finally, after turning on the
siren and initiating the stop, the officers noticed that Baley’s turn
signal was blinking rapidly, indicating that a front turn signal was
likely burnt out[.]”). A rapidly blinking bulb could also mean that
there is a problem with the wiring. Either way, the rapid blinking
is an alert that something in the signal light may not be functioning
correctly and thus is not in “good working condition.” As a result,
the rapidly blinking turn signal provided McCannon with reasona-
ble suspicion to believe that Campbell’s car violated O.C.G.A § 40–
8–26. And, on that basis, 16 we affirm the District Court’s conclu-
sion that McCannon’s initiation of the stop was lawful.
16The District Court also noted that even if McCannon was mistaken that the
rapidly blinking turn signal violated the “good working condition” require-
ment of § 40–8–26, his mistake would be a reasonable mistake of law and thus
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 39 of 132
16-10128 Opinion of the Court 39
ii.
Now, we have to determine whether any of the questions
McCannon asked Campbell unlawfully prolonged the stop. Let’s
start with the fundamentals.
Even if the police have reasonable suspicion to make a traffic
stop, they do not have unfettered authority to detain a person in-
definitely. The detention is “limited in scope and duration.” Flor-
ida v. Royer, 460 U.S. 491, 500,103 S. Ct. 1319, 1326
(1983) (plural- ity opinion). Officers must conduct their investigation diligently. See Rodriguez,575 U.S. at 357
,135 S. Ct. at 1616
(“[T]he Govern- ment acknowledges that an officer always has to be reasonably dil- igent.” (quotations omitted)); see also United States v. Place,462 U.S. 696, 709
,103 S. Ct. 2637, 2645
(1983) (“[I]n assessing the effect
of the length of the detention, we take into account whether the
police diligently pursue their investigation.”). And officers cannot
unlawfully prolong a stop. See Rodriguez, 575 U.S. at 354–57, 135
S. Ct. at 1614–16.
The Supreme Court expanded on unlawfully prolonged traf-
fic stops in Rodriguez. In that case, a K-9 officer in Nebraska pulled
over a Mercury Mountaineer—a sport utility vehicle—for swerv-
ing onto the shoulder. Id. at 351, 135 S. Ct. at 1612. After writing
a warning ticket and returning the license, registration, and proof
of insurance to the driver, the officer made the driver and passenger
“give rise to the reasonable suspicion necessary” to validate the stop and up-
hold the seizure. See Heien, 574 U.S. at 57, 135 S. Ct. at 534. USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 40 of 132 40 Opinion of the Court 16-10128 wait for seven or eight minutes while he conducted a dog sniff.Id.
at 351–52, 135 S. Ct. at 1613. The dog discovered contraband, and
the driver sought to suppress the evidence. Id. at 352, 135 S. Ct. at
1613. On appeal, the Eighth Circuit determined that a seven- or
eight-minute delay is a permissible de minimis intrusion. Id. at 353,
135 S. Ct. at 1614. But the Supreme Court disagreed. Id. at 354–
57, 135 S. Ct. at 1615–16.
The Supreme Court explained that a traffic stop is analogous
to a Terry stop. Id. at 354, 135 S. Ct. at 1614. So, the scope of the
stop “must be carefully tailored to its underlying justification.” Id.
(quoting Royer, 460 U.S. at 500,103 S. Ct. at 1325
). It follows that, in the context of a traffic stop, “the tolerable duration of police in- quiries . . . is determined by the seizure’s mission[.]”Id.
(quotations omitted). The mission of a traffic stop is “to address the traffic vi- olation that warranted the stop and attend to related safety con- cerns[.]”Id.
(citation omitted). And the stop may “last no longer than is necessary” to complete its mission.Id.
(quoting Royer,460 U.S. at 500
,103 S. Ct. at 1325
). In other words, “[a]uthority for the seizure . . . ends when tasks tied to the traffic infraction are—or rea- sonably should have been—completed.”Id.
At this point, an obvious question comes to mind: what in-
quiries are “related” to a stop’s purpose? The Supreme Court iden-
tified a number of tasks it says are “ordinary inquiries incident to
[the traffic] stop.” Id. at 355, 135 S. Ct. at 1615 (alteration in origi-
nal) (quotations omitted). These inquiries include “checking the
driver’s license, determining whether there are outstanding
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 41 of 132
16-10128 Opinion of the Court 41
warrants against the driver, and inspecting the automobile’s regis-
tration and proof of insurance.” Id. Inquiries such as these ensure
“that vehicles on the road are operated safely and responsibly.” Id.
But the Supreme Court has also identified tasks and inquiries
that are unrelated to a stop’s purpose. For example, in Arizona v.
Johnson, the Court explained that asking about a passenger’s gang
affiliation during a traffic stop is not related. See 555 U.S. 323, 332– 34,129 S. Ct. 781
, 787–88 (2009). Likewise, using a dog to search for contraband is not related. Rodriguez, 575 U.S. at 355–56, 135 S. Ct. at 1615. A dog sniff lacks “the same close connection to road- way safety as the ordinary inquiries,” and cannot be “fairly charac- terized as part of the officer’s traffic mission.” Id. at 356, 135 S. Ct. at 1615. Instead, a dog sniff is “aimed at detect[ing] evidence of ordinary criminal wrongdoing.” Id. at 355, 135 S. Ct. at 1615 (alter- ation in original) (quotations omitted). So, comparing the related and unrelated tasks, we can conclude that related tasks are the “or- dinary inquiries incident to a traffic stop,” while unrelated tasks are “other measures aimed at detecting criminal activity more gener- ally.” United States v. Green,897 F.3d 173, 179
(3d Cir. 2018) (quo-
tation omitted) (interpreting Rodriguez).
But whether an inquiry is “related” or “unrelated” doesn’t
end our analysis. Unrelated inquiries are permitted so long as they
do not add time to the stop. Rodriguez, 575 U.S. at 355,135 S. Ct. at 1615
(“An officer . . . may conduct certain unrelated checks dur- ing an otherwise lawful traffic stop. But . . . he may not do so in a way that prolongs the stop, absent . . . reasonable suspicion[.]”). USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 42 of 132 42 Opinion of the Court 16-10128 The Rodriguez Court suggested that this conclusion——com- manding that a stop “may last no longer than is necessary” to com- plete its purpose—was a simple application of its precedents.Id. at 354
, 135 S. Ct. at 1614 (quotation omitted). But this Court, along
with a number of our sister circuits, 17 had interpreted those same
precedent cases to establish a different standard.
In United States v. Griffin, we considered the appropriate
standard to decide prolongation cases. 696 F.3d at 1357. To do so, we looked to the Supreme Court’s ruling in Johnson, 18 where the 17Almost all of the circuits developed a rule looking to whether the length of the stop as a whole was reasonable and finding that brief extensions did not transform the stop into an unreasonable seizure. See United States v. McBride,635 F.3d 879, 883
(7th Cir. 2011); United States v. Everett,601 F.3d 484
, 493– 94 (6th Cir. 2010); United States v. Harrison,606 F.3d 42, 45
(2d Cir. 2010), abrogation recognized by United States v. Gomez,877 F.3d 76
, 89–90 (2d Cir. 2017); United States v. Chaney,584 F.3d 20, 26
(1st Cir. 2009); United States v. Farrior,535 F.3d 210, 220
(4th Cir. 2008), abrogation recognized by United States v. Williams,808 F.3d 238
, 246–47 (4th Cir. 2015); United States v. Tur- vin,517 F.3d 1097
, 1101–02 (9th Cir. 2008); United States v. Olivera-Mendez,484 F.3d 505
, 510–11 (8th Cir. 2007); United States v. Stewart,473 F.3d 1265, 1269
(10th Cir. 2007). 18 We also looked to the Supreme Court’s decision in Muehler v. Mena,544 U.S. 93
,125 S. Ct. 1465
(2005). See Griffin, 696 F.3d at 1360–61. In Mena, an officer questioned “a person about her immigration status while she was de- tained during the execution of a search warrant—by other law enforcement officers—for deadly weapons and evidence of gang membership.”Id.
(citing Mena, 544 U.S. at 95–96,125 S. Ct. at 1468
). Because the questioning did not prolong the detention, the Court held that the officers did not need independ- ent reasonable suspicion to ask about her immigration status. Mena, 544 U.S. at 101–02, 125 S. Ct. at 1471–72. Thus, Mena is fully consistent with the idea USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 43 of 132 16-10128 Opinion of the Court 43 Court condoned unrelated inquiries “so long as those inquiries do not measurably extend the duration of the stop.” Id. at 1361 (quot- ing Johnson,555 U.S. at 333
,129 S. Ct. at 788
). 19 Based on the lan-
guage from Johnson, we determined that the issue of whether un-
related questions “measurably extended or prolonged the duration
of the stop so as to make it unreasonable under the Fourth Amend-
ment” should be decided by an overall reasonableness standard. Id.
at 1362 (quotation omitted) (“To address this issue, we do not
simply look at the interval of prolongation in isolation, but rather
assess the length of the stop as a whole, including any extension of
the encounter, by undertaking a fact-bound, context-dependent
analysis of all of the circumstances concerning the stop and the un-
related questions.” (quotation omitted)).
But the Supreme Court rejected the overall reasonableness
standard in Rodriguez. There, the Government argued that it is
acceptable to “incremental[ly] prolong a stop” for unrelated inquir-
ies so long as the officer is diligent “and the overall duration of the
stop remains reasonable[.]” Rodriguez, 575 U.S at 357, 135 S. Ct.
at 1616 (alteration in original) (emphasis added) (quotation
that unrelated inquiries are permitted only if they do not add time to the stop.
The unrelated questions did not prolong the stop because other officers exe-
cuted the search warrant.
19The standard from Johnson resembled the one from Caballes, where the
Court said a traffic stop “can become unlawful if it is prolonged beyond the
time reasonably required to complete that mission.” Illinois v. Caballes, 543
U.S. 405, 407,125 S. Ct. 834, 837
(2005). USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 44 of 132 44 Opinion of the Court 16-10128 omitted). The Court disagreed, noting that the Government’s po- sition would effectively grant officers “bonus time to pursue an un- related criminal investigation” if they complete the “traffic-related tasks expeditiously[.]”Id.
That cannot be right. Instead, courts must look at what an officer actually does: if he “can complete traf- fic-based inquiries expeditiously, then that is the amount of ‘time reasonably required to complete [the stop’s] mission.’”Id.
(altera- tion in original) (quoting Illinois v. Caballes,543 U.S. 405, 407
,125 S. Ct. 834, 837
(2005)). And “a traffic stop prolonged beyond that point is unlawful.”Id.
(quotation omitted). Put simply, a stop can
be unlawfully prolonged even if done expeditiously.
The Supreme Court also rejected the reasoning from Grif-
fin. In Griffin, an officer stopped and frisked a person suspected of
theft. 696 F.3d at 1357. During the frisk, the officer asked the sus- pect: “Hey, what’s in your pocket? Why do you have batteries?”Id.
These questions were “unrelated to the attempted theft or the frisk for weapons,”id. at 1358
, and prolonged the stop by about thirty seconds,id. at 1362
. We offered two reasons for finding that the stop was not unlawfully prolonged. First, the officer “acted dil- igently.”Id.
But as explained above, diligence does not provide an officer with cover to slip in a few unrelated questions. Second, the officer “had not yet completed his investigation.”Id.
The Rodri-
guez Court rebuffed this argument as well: the “critical question . .
. is not whether the [unrelated inquiry] occurs before or after the
officer issues the ticket . . . but whether conducting the [unrelated
inquiry] ‘prolongs’—i.e., adds time to—‘the stop.’” Rodriguez, 575
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 45 of 132
16-10128 Opinion of the Court 45
U.S. at 357, 135 S. Ct. at 1616. In other words, an officer can pro-
long a stop before or after completing the investigation.
Neither can Griffin be distinguished because of the time dif-
ference. Although the unrelated questions in Griffin prolonged the
stop by about thirty seconds, Griffin, 696 F.3d at 1362, and the dog
sniff in Rodriguez prolonged the stop by seven to eight minutes,
Rodriguez, 575 U.S at 352, 135 S. Ct. at 1613, the Supreme Court
was clear that the length of time is immaterial. The Court rejected
the Eighth Circuit’s de minimis rule, under which minor exten-
sions of seizures were tolerated. See id. at 355–57, 135 S. Ct. at
1615–16. To differentiate Griffin on the grounds that a thirty sec-
ond delay is less serious than a seven-minute delay would revive a
standard—be it characterized as a de minimis rule or as overall rea-
sonableness—that the Supreme Court specifically rejected. Bot-
tom line: Griffin cannot be squared with Rodriguez. Accordingly,
we find that Rodriguez abrogates Griffin.
The proper standard for addressing an unlawfully prolonged
stop, then, is this: a stop is unlawfully prolonged when an officer,
without reasonable suspicion, diverts from the stop’s purpose and
adds time to the stop in order to investigate other crimes. See id.
at 353–57, 135 S. Ct. at 1614–16; see also Green, 897 F.3d at 179. In
other words, to unlawfully prolong, the officer must (1) conduct an
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 46 of 132
46 Opinion of the Court 16-10128
unrelated inquiry aimed at investigating other crimes (2) that adds
time to the stop (3) without reasonable suspicion. 20
With that understanding of Rodriguez, we turn to the ques-
tions McCannon asked during the stop. We’ll start with the vari-
ous questions McCannon asked about Campbell’s travel plans.
Generally speaking, questions about travel plans are ordi-
nary inquiries incident to a traffic stop. See United States v. Dion,
859 F.3d 114, 125(1st Cir. 2017) (“[O]ur case law allows an officer carrying out a routine traffic stop . . . to inquire into the driver’s itinerary.”), cert. denied,138 S. Ct. 346
(2017); United States v. Bowman,660 F.3d 338, 343
(8th Cir. 2011) (stating that tasks related to a traffic violation include “inquiring about the occupants’ desti- nation, route, and purpose”); United States v. Brigham,382 F.3d 20
Most circuits that have addressed Rodriguez have reached a similar conclu- sion. See United States v. Stewart,902 F.3d 664, 674
(7th Cir. 2018) (suggesting that seventy-five seconds used to call for backup might unlawfully prolong the stop, but the record was inadequate to determine if the officer’s purpose was for safety or a dog sniff), reh’g en banc denied (Oct. 26, 2018); United States v. Clark,902 F.3d 404
, 410–11 (3d Cir. 2018) (finding that twenty seconds of un- related questioning prolonged the stop); United States v. Bowman,884 F.3d 200, 219
(4th Cir. 2018) (finding that an officer did not have consent or reason- able suspicion to question a passenger after the mission was completed); United States v. Gomez,877 F.3d 76
, 88–93 (2d Cir. 2017) (rejecting a reason- ableness test, instead determining whether the unrelated inquiry adds time to the stop at all, and ultimately finding that asking a few questions about drugs prolonged the stop); United States v. Gorman,859 F.3d 706, 715
(9th Cir. 2017) (holding that unrelated questioning prolonged the stop). But see United States v. Collazo,818 F.3d 247
, 257–58 (6th Cir. 2016) (using language suggesting an overall reasonableness standard). USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 47 of 132 16-10128 Opinion of the Court 47 500, 508 (5th Cir. 2004) (en banc) (“An officer may also ask about the purpose and itinerary of a driver’s trip during the traffic stop.”); United States v. Givan,320 F.3d 452, 459
(3d Cir. 2003) (“[Q]ues- tions relating to a driver’s travel plans ordinarily fall within the scope of a traffic stop.”); United States v. Williams,271 F.3d 1262, 1267
(10th Cir. 2001) (“[W]e have repeatedly held (as have other
circuits) that questions relating to a driver’s travel plans ordinarily
fall within the scope of a traffic stop.”).
And, in this case, Campbell’s travel plans were relevant to
the traffic violation—a malfunctioning turn signal. In McCannon’s
experience, a rapidly blinking turn signal indicated that a bulb is
either out or is about to go out. Since Campbell was planning on
traveling a long distance, the chances that his turn signal would
stop working while he was driving increased. So, asking about
Campbell’s travel plans was a related and prudent part of investi-
gating his malfunctioning turn signal. 21
The same is not true, however, for McCannon’s questions
about the contraband in Campbell’s car. Just before he asked for
Campbell’s consent to search the Maxima, McCannon asked:
21 Admittedly, McCannon acknowledged that the reason he took such interest
in Campbell’s destination was because that part of Augusta was a high crime
area. But in this area of the law, we do not consider officers’ subjective moti-
vations. See Whren, 517 U.S. at 813,116 S. Ct. at 1774
.
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 48 of 132
48 Opinion of the Court 16-10128
“[Do you have] any counterfeit merchandise that you
are taking to your relatives over there in Augusta?
And what I mean by that is—any purses? Shoes?
Shirts? Any counterfeit or bootleg CDs or DVDs or
anything like that? Any illegal alcohol? Any mariju-
ana? Any cocaine? Methamphetamine? Any heroin?
Any ecstasy? Nothing like that? You don’t have any
dead bodies in your car?”
These questions are—fairly obviously—unrelated to a traffic stop
for a malfunctioning turn signal and crossing the fog line. Instead,
they are precisely the type of questions Rodriguez prohibits—those
about “crime in general [and] drug trafficking in particular.” See
Rodriguez, 575 U.S. at 357,135 S. Ct. at 1616
. And they extended
the stop by approximately twenty-five seconds. As a result, we
conclude that McCannon’s questions about the contraband in
Campbell’s car unlawfully prolonged the stop.
iii.
If an officer unlawfully prolongs a stop, any evidence uncov-
ered as a result may be suppressed. See Davis, 564 U.S. at 231–32,
131 S. Ct. at 2423. But the mere fact that McCannon may have
unlawfully prolonged Campbell’s stop is not the end of our inquiry.
As we discussed in part III.A.iii, the exclusionary rule is subject to
exceptions and does not automatically apply.
Remember, “when the police conduct a search in compli-
ance with binding precedent that is later overruled,” we will not
apply the exclusionary rule. Id. at 232,131 S. Ct. at 2423
. Again, USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 49 of 132 16-10128 Opinion of the Court 49 this is a sensible practice: when an officer acts in reliance on binding precedent during a search, excluding evidence uncovered in that search would do nothing to deter future police misconduct and would instead exact high costs on public safety.Id.
At the time of Campbell’s arrest, Griffin was our last word
on the issue of prolongation. 696 F.3d at 1630–32. As noted in part
III.B.ii, Griffin held that an officer’s unrelated questioning lasting
no more than thirty seconds did not unconstitutionally prolong the
stop because the officer “had not yet completed his investigation .
. . and because he acted diligently[.]” Id. at 1362.
In his en banc briefing, Campbell contends that Davis’s
good-faith exception should apply only “when a bright-line rule
specifically authorized the type of search or seizure at issue.” Grif-
fin, Campbell argues, is not such a case. Instead, he believes that
Griffin “did not specifically authorize . . . suspicionless prolonga-
tions of traffic stops” and instead “explicitly rejected a bright-line
no prolongation rule.” As a result, Campbell states that McCannon
was not permitted to rely on Griffin for purposes of the good-faith
exception. For a few reasons, we believe Campbell is mistaken.
First, we think Campbell’s read of Davis is too narrow. In
Davis, the Supreme Court held that “when the police conduct a
search in objectively reasonable reliance on binding appellate prec-
edent, the exclusionary rule does not apply.” Davis, 564 U.S. at
249–50, 131 S. Ct. at 2434. On its face, this holding suggests no limitation on the “type” of “binding appellate precedent” that offic- ers may rely on. And the rest of the Davis decision reveals no such USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 50 of 132 50 Opinion of the Court 16-10128 limit. Throughout the opinion, the Court referred to “binding precedent” and “appellate precedent” without once mentioning whether that precedent was limited to cases involving “bright-line rules.”Id.
at 231–50, 131 S. Ct. at 2423–34. The fact that Davis
happened to involve a bright-line rule is entirely coincidental.
Second, Campbell misunderstands our holding in Griffin.
He contends that “the Griffin holding was a far cry from . . . a
bright-line precedent that categorically and unequivocally author-
ized a search or seizure” because it “did not purport to guide police
officers.” It follows, he argues, that “Griffin did not pre-authorize
a suspicionless expansion of Mr. Campbell’s detention.” Campbell
is right on the first point: we expressly declined “to adopt a bright-
line no prolongation rule” in Griffin. Griffin, 696 F.3d at 1362(quo- tations and citation omitted). But he is wrong on the second. We stated in Griffin that “unrelated questions posed during a valid Terry stop do not create a Fourth Amendment problem unless they measurably extend the duration of the stop.”Id.
(quotation omit- ted). Although our pronouncement of the rule came in the context of a Terry stop, the reasoning for our prolongation rule was not Terry-bound. Instead, we simply looked at what the Fourth Amendment required and stated that it was not violated when (i) an officer’s unrelated questioning preceded the “complet[ion] [of the authorized] investigation,” (ii) that questioning “lasted [no] more than 30 seconds,” and (iii) the officer “acted diligently” in completing the stop.Id.
Nothing in Griffin suggests that the pro-
longation rule applied only to Terry stops. So, the fact that Griffin
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 51 of 132
16-10128 Opinion of the Court 51
declined to provide a bright-line rule does not relegate it to a cate-
gory of “non-binding” appellate precedent.
And third, Campbell’s “bright-line” theory is inconsistent
with the purpose of the exclusionary rule. At risk of repetition, the
exclusionary rule’s “sole purpose” is to “deter future Fourth
Amendment violations.” Davis, 564 U.S. at 236–37, 131 S. Ct. at
2426. Police conduct “trigger[s] the harsh sanction of exclusion only when [it is] deliberate enough to yield meaningful deterrence and culpable enough to be worth the price paid by the justice sys- tem.”Id. at 240
,131 S. Ct. at 2428
(alteration adopted) (quotations omitted). And “[w]hen the police exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights, the de- terrent value of exclusion is strong and tends to outweigh the re- sulting costs.”Id. at 238
,131 S. Ct. at 2427
(quotations omitted). But when officers act in reliance on binding precedent—even if that precedent does not contain a “bright-line” rule—they are not acting deliberately, recklessly, or with gross negligence. And when offic- ers do not act deliberately, recklessly, or with gross negligence, they lack the culpability required to apply the exclusionary rule. “[A]bsence of police culpability dooms” the application of the ex- clusionary rule,id. at 240
,131 S. Ct. at 2428
, because without cul- pable conduct, deterrence simply cannot “pay its way.” Leon,468 U.S. at 907
n.6,104 S. Ct. at 3412
n.6. Were we to start splitting
hairs between “bright-line” and “fact-intensive” rules, it is difficult
to imagine that any officer would ever know which precedent is
safe to rely on.
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 52 of 132
52 Opinion of the Court 16-10128
So, convinced that the good-faith exception allows officers
to rely on cases without “bright-line” rules, we finally turn to
whether the facts of this case fit squarely within Griffin. We con-
clude that they do.
This case and Griffin bear a number of similarities. In Grif-
fin, the officer lawfully stopped Griffin to investigate whether he
had stolen some clothing. Griffin, 696 F.3d at 1357–58. Here,
McCannon lawfully stopped Campbell to investigate a traffic vio-
lation. In Griffin, the officer’s unrelated questioning lasted approx-
imately thirty seconds. Id. at 1362. Here, McCannon’s unrelated
questioning lasted approximately twenty-five seconds. In Griffin,
the officer had not yet completed the stop when he asked the un-
related questions. Id. Here, McCannon had not yet completed the
stop when he asked the unrelated questions. In Griffin, the officer
“acted diligently.” Id. And here, the District Court found that
McCannon “diligently investigated” the traffic violations and “ex-
peditiously” completed the citations. We cannot say that the Dis-
trict Court erred in making this finding, and the similarities be-
tween this case and Griffin lead to only one conclusion: Griffin con-
trols. So, because McCannon acted in “objectively reasonable reli-
ance on binding appellate precedent,” the good-faith exception ap-
plies. Davis, 564 U.S. at 232, 131 S. Ct. at 2423–24. 22
22 Because the good-faith exception applies, we need not reach the issue of
whether Campbell’s consent to the search purged the taint from the unlaw-
fully prolonged seizure. When a stop is unlawfully prolonged, the seizure be-
comes unconstitutional, and any subsequent discovery of evidence produced
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 53 of 132
16-10128 Opinion of the Court 53
IV.
Although we are usually reluctant to address matters the
parties have not argued on appeal, this reluctance is discretionary,
not mandatory. Absent an affirmative waiver by a party, we may
exercise our discretion to address an issue not raised in an opening
brief in extraordinary circumstances. As the Government did not
waive the good-faith exception, we choose to raise the exception
sua sponte due to the strong policy considerations underlying the
exclusionary rule and the circumstances of this case.
With that settled, we conclude that Deputy Sheriff McCan-
non had reasonable suspicion to stop Campbell for a traffic viola-
tion. But he unlawfully prolonged the stop when he asked Camp-
bell unrelated questions about contraband in his car. Although this
could result in suppression of the evidence found in Campbell’s car,
upon consideration of our binding precedent at the time of the
stop, we conclude that McCannon’s questioning was conducted in
objectively reasonable reliance on our case law, so the good-faith
by that seizure would normally be tainted. However, if the defendant con-
sents to the search after the stop is unlawfully prolonged but before the evi-
dence is discovered, the consent can purge the taint. See United States v.
Santa, 236 F.3d 662, 676–77 (11th Cir. 2000). To do this, the government must show (1) that the consent is voluntary and (2) that the consent is not a product of the illegal seizure. United States v. Delancy,502 F.3d 1297, 1308
(11th Cir.
2007). Since the evidence from McCannon’s search is admissible under the
good-faith exception, we are spared from conducting this analysis. And, for
similar reasons, we need not reach the question of whether the consent issue
is forfeited.
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 54 of 132
54 Opinion of the Court 16-10128
exception applies. We thus decline to exclude the evidence uncov-
ered during the search of Campbell’s car, and the District Court’s
denial of Campbell’s motion to suppress is affirmed.
AFFIRMED.
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 55 of 132
16-10128 WILLIAM PRYOR, C.J., Concurring 1
WILLIAM PRYOR, Chief Judge, Concurring:
I join the majority opinion in full, but I write separately to
clarify some fundamental principles involving the en banc process,
waiver, and the good-faith exception. In one sense, my dissenting
colleagues are right to say that this appeal involves “judicial power
and its limits.” Dissenting Op. at 1. But they misunderstand in what
way. This appeal concerns when the Judicial Branch should inter-
vene on behalf of a criminal to exclude indisputably reliable evi-
dence. And the result of this appeal is just: A criminal will receive
the punishment that the district court decided he deserves without
an unjustified exercise of judicial power by this Court.
As the majority understands, in an en banc rehearing, we re-
view the judgment of the district court, as we have recognized in
our previous en banc decisions. Majority Op. at 33–34; see, e.g.,
Lewis v. City of Union City, 918 F.3d 1213, 1220 n.4 (11th Cir. 2019) (en banc) (“We review a district court’s grant of summary judg- ment de novo.”); SmileDirectClub, LLC v. Battle,4 F.4th 1274, 1277
(11th Cir. 2021) (en banc) (describing the en banc Court as
“only hav[ing] jurisdiction over appeals from final decisions of the
district courts.” (internal quotation marks omitted)). We do not re-
view the panel’s decision. One of the reasons why we do not re-
view the panel decision is that in the typical en banc rehearing, as
here, we vacate the panel opinion when we grant rehearing en
banc. 11TH CIR. R. 35-10 (“Unless otherwise expressly provided, the
effect of granting a rehearing en banc is to vacate the panel opinion
and the corresponding judgment.”). And to vacate means “[t]o
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2 William Pryor, C.J., Concurring 16-10128
nullify or cancel; make void; [or] invalidate.” Vacate, BLACK’S LAW
DICTIONARY (11th ed. 2019). Because of that vacatur, we cannot re-
view the panel decision, which no longer exists. We instead review
the judgment of the district court.
So, the majority is correct to hold both that the government
may properly raise alternative arguments in support of the district
court’s judgment before the en banc court that it failed to raise be-
fore the panel and that the government has properly briefed the
good-faith exception to the en banc court. Majority Op. at 16 n.5.
This practice is permissible because, as a consequence of vacating
the panel’s opinion, we review the issues anew after granting en
banc rehearing as if we were hearing the appeal directly from the
district court. This truth about the en banc process is widely recog-
nized. See Socop-Gonzalez v. Immigr. & Naturalization Serv., 272
F.3d 1176, 1186 n.8 (9th Cir. 2001), abrogated on other grounds by Smith v. Davis,953 F.3d 582
(9th Cir. 2020) (en banc) (“[F]ailure to raise an issue before an original appellate panel does not preclude an en banc panel’s jurisdiction over the issue. . . . The en banc court does not review the original panel decision, nor does it overrule the original panel decision. Rather, the en banc court acts as if it were hearing the case on appeal for the first time.”); 4TH CIR. R. 35(c) (“[T]he rehearing is a review of the judgment or decision from which review is sought and not a review of the judgment of the panel.”); see also, e.g., 18 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE – Civil § 134.22[2][c] (3d ed. 2021); Comer v. Murphy Oil USA, Inc.,718 F.3d 460, 468
(5th Cir. 2013) (“Unless USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 57 of 132 16-10128 WILLIAM PRYOR, C.J., Concurring 3 otherwise expressly provided, the granting of a rehearing en banc vacates the panel opinion and judgment of the court . . . . Once the panel decision is vacated, it is of no precedential value.” (internal quotation marks omitted)); 6TH CIR. R. 35(b) (“A decision to grant rehearing en banc vacates the previous opinion and judgment of the court . . . .”); 7TH CIR. OPERATING PROCEDURES 5(e) (“An order granting rehearing en banc should specifically state that the original panel’s decision is thereby vacated.”); United States v. Nacchio,555 F.3d 1234, 1241
(10th Cir. 2009) (en banc) (making clear that the
Tenth Circuit, while sitting en banc, was reviewing the judgment
of the district court). And the dissent cites no authority to the con-
trary.
The majority also correctly explains that the government
never made any statement that could reasonably be understood to
be an affirmative waiver of the good-faith exception. Majority Op.
at 25–30. And the majority rightly addresses the reasons that we
cannot rely on the inquisition at oral argument before the en banc
court to determine whether a waiver occurred before the panel. Id.at 25–27. In addition, the dissent’s reliance upon Wood v. Milyard,566 U.S. 463
(2012), does not withstand scrutiny. Dissenting Op. at
38–39.
Wood does not support the dissent’s reliance on the state-
ments of the government at oral argument as evidence of a waiver.
In Wood, the discussion of whether the State of Colorado waived
a timeliness defense focused only on what the state said before the
district court. 566 U.S. at 474. Nowhere in that decision did the USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 58 of 132 4 William Pryor, C.J., Concurring 16-10128 Supreme Court discuss later representations at oral arguments or in briefs, by different attorneys, about the mental state of the attor- ney in the district court.Id.
The Supreme Court instead looked only at the record. Id.; accord Day v. McDonough,547 U.S. 198, 211
(2006) (explaining that “nothing in the record suggest[ed] that
the State ‘strategically’ withheld [a] defense or chose to relinquish
it,” without reference to later characterizations of the mental state
of the lawyer at the district court (emphasis added)).
Further, the dissent’s view that “[t]he government’s [state-
ments at oral argument] bring[] this case squarely within the logic
of Wood ” stretches Wood beyond recognition. Dissenting Op. at
37–38. In Wood, the Supreme Court determined that Colorado
had waived its timeliness argument by explicitly stating in writing
that it would “not challenge” the timeliness of the habeas petition
in both its preanswer response and its full answer to the habeas pe-
tition. 566 U.S. at 467(internal quotation marks omitted). Unre- markably, the Supreme Court held that these statements consti- tuted a waiver because they were “the intentional relinquishment or abandonment of a known right.”Id. at 474
(internal quotation marks omitted). But no such statement occurred here. The govern- ment never disclaimed the good-faith exception. The government did not mention anything about the good-faith exception in its brief before the original panel. And it is settled law that when a party fails to raise an argument or issue in its brief, that argument or issue is only forfeited. Majority Op. at 21; Kingdomware Techs., Inc., v. United States,136 S. Ct. 1969, 1978
(2016) (explaining that when a
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16-10128 WILLIAM PRYOR, C.J., Concurring 5
party “fail[s] to raise [an] argument” the Supreme Court “normally
decline[s] to entertain” it because it is “forfeited”); see also 16AA
CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE
§ 3974.3 (5th ed. Apr. 2021 update) (“[I]ssues omitted from the
party’s principal brief are ordinarily deemed forfeited.”); id.
§ 3974.1 (“[T]here are many cases finding forfeiture where the con-
tention was omitted from the brief . . . .”); id. § 3974.2 (“An appel-
lee who fails to include and properly argue a contention in the ap-
pellee’s brief takes the risk that the court will view the contention
as forfeited.”).
The majority opinion does an excellent job of articulating
the requirement that the benefits of exclusion must outweigh the
“substantial social costs.” Majority Op. at 32 (internal quotation
marks omitted). On this point, I add only that the facts in this ap-
peal starkly present the costs of the exclusionary rule that must be
outweighed. For example, in addition to the semi-automatic pistol
and accompanying ammunition found in Campbell’s car, Officer
McCannon found a black stocking hat and camouflage face mask
in the same bag as the gun. Officer McCannon thought that posses-
sion of these items evidenced that Campbell was “a person who
might commit robberies.” That inference seems reasonable to me,
especially in the light of Campbell’s prior conviction for armed rob-
bery. “The principal cost” that must be outweighed by the deter-
rence value of exclusion is “letting guilty and possibly dangerous
defendants” like Campbell, Herring v. United States, 555 U.S. 135,
141(2009), “loose in the community without punishment,” Davis USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 60 of 132 6 William Pryor, C.J., Concurring 16-10128 v. United States,564 U.S. 229, 237
(2011). That “bitter pill” cannot be swallowed here, where Officer McCannon plainly acted in good faith.Id.
The dissent professes that it would exercise judicial restraint
or “modest[y]” and accuses the majority of transgressing those
principles. See Dissenting Op. at 59–62 (internal quotation marks
omitted); id. at 1 (“This is a case about judicial power and its lim-
its.”). But reality is the opposite. The dissent would have this Court
exercise extraordinary judicial power without justification.
The Supreme Court has explained that the exclusionary rule
was “judicially created” and its application is an “extreme sanc-
tion.” Herring, 555 U.S. at 139–40 (internal quotation marks omit-
ted). So, the Supreme Court has “establish[ed] important principles
that constrain [its] application.” Id. at 140. One of those principles
“limiting” the drastic remedy of exclusion is the good-faith excep-
tion. United States v. Leon, 468 U.S. 897, 923–24 (1984). And we are so limited here. This Court cannot, as a matter of limits on its power, “[r]esort to the massive remedy of suppressing evidence of guilt,” Hudson v. Michigan,547 U.S. 586, 599
(2006), where the “[e]vidence [was] obtained during a search conducted in reasonable reliance on binding precedent” because such evidence “is not sub- ject to the exclusionary rule.” Davis,564 U.S. at 241
.
The dissent asserts that applying the exclusionary rule here
would conform with “the courts’ traditional role as passive instru-
ments of government.” See Dissenting Op. at 59 (internal quota-
tion marks omitted). But applying the exclusionary rule is anything
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16-10128 WILLIAM PRYOR, C.J., Concurring 7
but passive. Excluding evidence that is plainly “not subject” to the
rule because the officer acted in good faith would be an exercise of
raw judicial power well beyond its established limits. See Davis,
564 U.S. at 241.
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USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 63 of 132
16-10128 NEWSOM and JORDAN, JJ., Dissenting 1
NEWSOM and JORDAN, Circuit Judges, with whom WILSON,
ROSENBAUM, and JILL PRYOR, Circuit Judges, join, dissenting:
This is a case about judicial power and its limits.
I
The factual and procedural history here is undisputed—and,
for reasons that will become clear, important. Here’s the short(ish)
story: Nearly a decade ago now, Deputy Robert McCannon
stopped Erickson Meko Campbell along I-20 in Greene County,
Georgia. After an ensuing search of Campbell’s car turned up a
pistol and ammunition, he was arrested and subsequently indicted
on a federal felon-in-possession charge.
Campbell moved to suppress the incriminating evidence on
the ground that McCannon had conducted an “unreasonable . . .
seizure[]” within the meaning of the Fourth Amendment. See U.S.
Const. amend. IV. As particularly relevant here, Campbell con-
tended that McCannon had unlawfully prolonged the traffic stop
by asking questions unrelated to the stop’s purpose, in violation of
the Supreme Court’s then-recent decision in Rodriguez v. United
States, 575 U.S. 348(2015). Following an evidentiary hearing, the district court sought and received supplemental briefing both on the effect of Rodriguez and separately—and significantly for our purposes—on the question whether, if a Fourth Amendment vio- lation had occurred, the evidence was nonetheless admissible un- der the “good-faith exception” to the exclusionary rule as set out in Davis v. United States,564 U.S. 229
(2011). In response, Campbell
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 64 of 132
2 NEWSOM and JORDAN, JJ., Dissenting 16-10128
reiterated his position that McCannon’s detention of him violated
the Fourth Amendment as interpreted in Rodriguez and argued, in
addition, that the good-faith exception didn’t apply. For its part,
the government urged the district court to hold that McCannon’s
stop didn’t violate Campbell’s Fourth Amendment rights and, in
the alternative, that the evidence should be admitted under the
good-faith exception.
The district court denied Campbell’s suppression motion,
holding that this Court’s decision in United States v. Griffin, 696
F.3d 1354 (11th Cir. 2012), rather than Rodriguez, governed the
prolongation issue, and that under Griffin, because the overall
length of the stop was reasonable, McCannon’s seizure of Camp-
bell was not unconstitutional. Because the court found no Fourth
Amendment violation, it had no occasion to consider the govern-
ment’s backup argument that the evidence found in Campbell’s car
was admissible under Davis’s good-faith exception.
Campbell pleaded guilty but reserved the right to appeal the
denial of his suppression motion. In his opening brief to this Court,
Campbell insisted that Rodriguez, not Griffin, provided the appli-
cable Fourth Amendment rule and that under Rodriguez the traffic
stop and ensuing detention were unlawful. In its answering brief,
the government contended only that McCannon’s detention of
Campbell comported with the Fourth Amendment. For reasons
unexplained at the time—but that have since been described as the
product of a “conscious” litigation decision—the government did
not renew its separate argument (with respect to which,
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 65 of 132
16-10128 NEWSOM and JORDAN, JJ., Dissenting 3
significantly, it bore the burden of proof) that even if the detention
violated the Constitution, the good-faith exception applied.
A three-judge panel of this Court unanimously concluded
that Campbell was correct on the merits—Rodriguez governed the
Fourth Amendment issue, and under that decision, McCannon had
unlawfully prolonged the stop. See United States v. Campbell, 912
F.3d 1340(11th Cir. 2019), opinion vacated and superseded,970 F.3d 1342
(11th Cir. 2020), reh’g en banc granted and opinion va- cated,981 F.3d 1014
(11th Cir. 2020). But then, without giving the
parties any notice of its intent to do so, without requesting supple-
mental briefing, and without even asking about the issue at oral
argument, a divided panel held—as the government had not ar-
gued—that McCannon had reasonably relied on our pre-Rodriguez
decision in Griffin and, accordingly, that the good-faith exception
to the exclusionary rule applied. 912 F.3d at 1355–56. In so doing,
the panel majority acknowledged the “[t]ypical” rule that a review-
ing court “will not consider” a basis for affirmance that “an appellee
waives or abandons,” but nonetheless proceeded to decide the
good-faith issue sua sponte on the grounds that “waiver is a pru-
dential doctrine,” that the parties had briefed the issue in the district
court, and that “the applicability of the exception in this case is
plain.” Id. at 1355. Judge Martin dissented on the good-faith issue,
maintaining that the panel majority shouldn’t have invoked the ex-
ception because the government “never made that argument on
appeal.” Id. at 1356 (Martin, J., concurring in part and dissenting in
part). In her view, an appellate court shouldn’t be “in the business
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 66 of 132
4 NEWSOM and JORDAN, JJ., Dissenting 16-10128
of resuscitating arguments the government was made aware of,
then clearly abandoned.” Id. at 1358.
On its own motion, the panel vacated its opinion and issued
a replacement in which the majority—again over Judge Martin’s
dissent—elaborated on its reasons for raising, considering, and de-
ciding the good-faith issue sua sponte. See Campbell, 970 F.3d
1342. The panel majority acknowledged that “[t]he only way the Government could have raised the good-faith issue on appeal [was] by including it in its appellate brief” and assumed that the govern- ment had “waived the . . . issue by failing” to do so.970 F.3d at 1357
& n.17. Even so, the majority repeated its refrain that “[w]aiver is a prudential doctrine” and, citing a law review article, added that an appellate court can decide for itself “[t]he degree to which [it] adhere[s] to the doctrine and the conditions under which [it] will excuse it.”Id. at 1358
. The majority swore off any “bright- line rule” and held, instead, that it could decide the good-faith issue sua sponte based on a handful of case-specific “policy considera- tions.”Id.
at 1358–59. In particular, the majority asserted (1) that the good-faith exception’s applicability presented a “pure question of law,” (2) that the good-faith issue was “resolved, as a matter of law, by [the court’s] analysis of the constitutionality of McCannon’s search,” and (3) that because the government had raised the good- faith exception in the district court, “Campbell had notice that the issue was potentially relevant” on appeal notwithstanding the gov- ernment’s decision not to renew it.Id.
at 1358–60.
* * *
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16-10128 NEWSOM and JORDAN, JJ., Dissenting 5
Against that backdrop, this case presents the en banc Court
with an important question of appellate procedure that, as it turns
out, implicates dueling conceptions of judicial power: Can an ap-
pellate court affirm a criminal defendant’s conviction on a ground
that, although argued to the district court, the government con-
cedes it “conscious[ly]” decided not to present on appeal? Dou-
bling down on the panel’s sua sponte consideration and decision of
the good-faith issue, the majority concludes today that it can.
The Supreme Court recently—and unanimously—reiter-
ated the elemental truth that “[i]n our adversarial system, we fol-
low the principle of party presentation,” pursuant to which “‘we
rely on the parties to frame the issues for decision and assign to
courts the role of neutral arbiter of matters the parties present.’”
United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579(2020) (quot- ing Greenlaw v. United States,554 U.S. 237, 243
(2008)). Accord- ingly, the Court emphasized, lower courts should be “passive” and “modest.”Id.
Today’s decision is anything but—it contravenes
foundational commitments of our adversarial system and its con-
stituent party-presentation principle, obscures the critical distinc-
tion between the oft-confused concepts of “waiver” and “forfei-
ture,” and fails to meaningfully limit the circumstances in which
appellate courts can engage in what commentators have called “ju-
dicial issue creation.”
We respectfully dissent.
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6 NEWSOM and JORDAN, JJ., Dissenting 16-10128
II
We begin, as we feel we must, with first principles—indeed,
with the first principle of first principles: In this country, we have
an adversarial justice system. See, e.g., Sineneng-Smith, 140 S. Ct.
at 1579(“our adversarial system”); Wood v. Milyard,566 U.S. 463, 472
(2012) (“our adversary system”). Unlike the judge-dominated
inquisitorial systems of continental Europe and Latin America, an
“adversary system relies on a neutral and passive decision maker to
adjudicate disputes after they have been aired by the adversaries in
a contested proceeding.” Stephen Landsman, The Adversary Sys-
tem: A Description and Defense 2 (1984); accord, e.g., Adversary
System, Black’s Law Dictionary (10th ed. 2014) (defining “adver-
sary system” as “[a] procedural system, such as the Anglo-Ameri-
can legal system, involving active and unhindered parties contest-
ing with each other to put forth a case before an independent deci-
sion-maker”).
Because this case puts core tenets of adversarialism to the
test, it’s worth exploring the subject in some detail.
A
Adversarialism has deep historical roots that predate this
country’s founding. Indeed, according to its foremost historian,
the rudiments of the modern adversarial system can be traced to
11th-century England. See Landsman, Adversary System, at 8. In
any event, “[f]rom the 1640s onward the full range of adversarial
mechanisms began to grow, and by the end of the 1700s the
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16-10128 NEWSOM and JORDAN, JJ., Dissenting 7
adversary system had become firmly established not only in Eng-
land but in America, as well.” Id.at 18–19; see also, e.g., id. at 1 (noting that the adversarial system has been in place in this country “[s]ince at least the time of the American Revolution”); Judith Res- nik, Managerial Judges,96 Harv. L. Rev. 374
, 380–81 (1982) (tracing
adversarialism’s history and observing that “[t]he limits placed on
federal judges by the adversarial system comported with the views
of those who drafted the Constitution”).
One of the adversarial system’s central features—particu-
larly at issue in this case—is that “[t]he judge decides the case solely
on the basis of the evidence and the arguments presented to him
by the parties.” Lon L. Fuller, The Problems of Jurisprudence 706
(1949). This “principle of party presentation,” the Supreme Court
has emphasized, is “basic to our adversary system.” Wood, 566
U.S. at 472. As already noted, the Court recently, and heartily, en-
dorsed the party-presentation principle in Sineneng-Smith. Its lan-
guage there warrants quoting at some length:
In our adversarial system of adjudication, we follow
the principle of party presentation. As this Court
stated in Greenlaw v. United States, 554 U.S. 237
(2008), “in both civil and criminal cases, in the first in-
stance and on appeal . . ., we rely on the parties to
frame the issues for decision and assign to courts the
role of neutral arbiter of matters the parties present.”
Id. at 243. In criminal cases, departures from the
party presentation principle have usually occurred
“to protect a pro se litigant’s rights.” Id. at 244. But
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 70 of 132
8 NEWSOM and JORDAN, JJ., Dissenting 16-10128
as a general rule, our system “is designed around the
premise that parties represented by competent coun-
sel know what is best for them, and are responsible
for advancing the facts and argument[s] entitling
them to relief.”
140 S. Ct. at 1579(cleaned up) (quoting Castro v. United States,540 U.S. 375, 386
(2003) (Scalia, J., concurring in part and concurring in
the judgment)).
“In short,” the Sineneng-Smith Court summarized the party-
presentation principle as follows: “‘[C]ourts are essentially passive
instruments of government.’ They ‘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.(citation omitted) (quoting United States v. Samuels,808 F.2d 1298, 1301
(8th Cir.
1987) (Arnold, J., concurring in denial of rehearing en banc)).
Adversarialism—and, in particular, its party-presentation
principle—had no more ardent champion than the late Justice
Scalia. While on the D.C. Circuit, then-Judge Scalia famously, and
incisively, explained what he called “[t]he premise of our adversar-
ial system”: “[A]ppellate courts do not sit as self-directed boards of
legal inquiry and research, but essentially as arbiters of legal ques-
tions presented and argued by the parties before them.” Carducci
v. Regan, 714 F.2d 171, 177(D.C. Cir. 1983) (Scalia, J.). Once on the Supreme Court, he reiterated that position. For instance: “What makes a system adversarial rather than inquisitorial is . . . USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 71 of 132 16-10128 NEWSOM and JORDAN, JJ., Dissenting 9 the presence of a judge who does not (as an inquisitor does) con- duct the factual and legal investigation himself, but instead decides on the basis of facts and arguments pro and con adduced by the parties.” McNeil v. Wisconsin,501 U.S. 171
, 181 n.2 (1991) (Scalia, J.). And again: “The rule that points not argued will not be consid- ered is more than just a prudential rule of convenience; its ob- servance, at least in the vast majority of cases, distinguishes our ad- versary system of justice from the inquisitorial one.” United States v. Burke,504 U.S. 229, 246
(1992) (Scalia, J., concurring) (citing United States v. Pryce,938 F.2d 1343, 1355
(D.C. Cir. 1991) (Silber-
man, J., dissenting in part)).
* * *
As these descriptions, odes, and homages make clear, adver-
sarialism and the party-presentation principle exist, at their shared
core, to protect and ensure judicial neutrality and humility. In an
adversarial system, a court’s principal role is not to declare law, to
“do justice,” or to maximize efficiency, but, rather, and simply, to
resolve the specific disputes put before it by litigants and their law-
yers. In an adversarial system—our system—courts are reactive,
not proactive; passive, not aggressive; modest, not bold.
B
Adversarialism and the party-presentation principle aren’t
just deeply historical, they’re also instrumental to—and protective
of—other core values of the Anglo-American judicial tradition.
Among the fundamental interests that the adversarial system and
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10 NEWSOM and JORDAN, JJ., Dissenting 16-10128
its party-presentation requirement serve, courts and commenta-
tors have identified the following:
1. Truth and Accuracy—As the Supreme Court has repeat-
edly affirmed, adversarialism enhances the prospect that courts will
render correct judgments: “[O]ur legal tradition regards the adver-
sary process as the best means of ascertaining truth and minimizing
the risk of error.” Mackey v. Montrym, 443 U.S. 1, 13(1979); ac- cord, e.g., Penson v. Ohio,488 U.S. 75, 84
(1988) (“Th[e adversary] system is premised on the well-tested principle that truth—as well as fairness—is ‘best discovered by powerful statements on both sides of the question.’”); Polk County v. Dodson,454 U.S. 312, 318
(1981) (“The system assumes that adversarial testing will ultimately advance the public interest in truth and fairness.”); Lassiter v. Dep’t of Soc. Servs.,452 U.S. 18, 28
(1981) (“[O]ur adversary system pre-
supposes [that] accurate and just results are most likely to be ob-
tained through the equal contest of opposed interests . . . .”).
2. Fundamental Fairness—Due-process protections apply in
the courts, of course. See, e.g., Brinkerhoff-Faris Tr. & Sav. Co. v.
Hill, 281 U.S. 673, 678(1930). To that end, the Supreme Court has observed that “[t]he opportunity to be heard is an essential requi- site of due process of law in judicial proceedings.” Richards v. Jef- ferson County,517 U.S. 793
, 797 n.4 (1996). The party-presenta-
tion principle serves due-process interests by ensuring that a party
has advance notice and an opportunity to be heard before a court
decides an issue that may sink his case. One commentator has ex-
plained the risk of abandoning party presentation this way:
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16-10128 NEWSOM and JORDAN, JJ., Dissenting 11
When the appellate court considers a matter sua
sponte for the first time it means that the litigants
have not been given an opportunity to consider the
matter and urge arguments in support of and against
the position adopted by the reviewing court. If the
question had been raised there is at least a possibility
that other facts or other authorities might have been
presented which might have changed the court’s atti-
tude on the matter. But this opportunity is not given
to the losing party.
Allan D. Vestal, Sua Sponte Consideration in Appellate Review, 27
Fordham L. Rev. 477, 493 (1958).
3. Separation of Powers and Judicial Restraint—Limiting
courts to the issues that the parties put before them also minimizes
the risk that judges become what commentators have called “pol-
icy entrepreneurs.” Amanda Frost, The Limits of Advocacy, 59
Duke L. J. 447, 470 & n.91 (2009) (quoting Kevin T. McGuirre &
Barbara Palmer, Issue Fluidity on the U.S. Supreme Court, 89 Am.
Pol. Sci. Rev. 691, 699 (1995)). Indeed, as acknowledged by even
the leading academic defender of what she calls “judicial issue cre-
ation,” allowing unelected and unaccountable federal judges “to
transgress the limits of the parties’ arguments gives them the
power to set their own agendas—a power normally reserved for
the political branches.” Frost, Limits of Advocacy, at 481. 1
1In the same vein, Frost acknowledges that “[t]he norm against issue creation
can even be said to have quasi-constitutional roots” in that “[i]t has at least a
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 74 of 132
12 NEWSOM and JORDAN, JJ., Dissenting 16-10128
4. Impartiality and Its Appearance—Relatedly, “the adver-
sarial method . . . emphasize[s] judges’ disengagement as the means
of achieving impartiality.” Resnik, Managerial Judges, at 383 n.41.
The reason is that “[w]hen litigants direct the proceedings, there is
little opportunity for the judge to pursue his own agenda or to act
on his biases.” Landsman, Adversary System, at 44. Indeed, be-
cause under the party-presentation principle “the judge seldom
takes the lead in conducting the proceedings, he is unlikely to ap-
pear to be partisan or to become embroiled in the contest.” Id.at 44–45. Accordingly, the judge’s detachment—his passivity—“pre- serves the appearance of fairness as well as fairness itself.”Id. at 45
.
By contrast, as we have observed, “[i]f a court engages in
what may be perceived as the bidding of one party by raising claims
or defenses on its behalf, the court may cease to appear as a neutral
arbiter, and that could be damaging to our system of justice.” Bur-
gess v. United States, 874 F.3d 1292, 1300(11th Cir. 2017). Accord- ingly, the party-presentation principle’s opposite—the passing relationship to Article III’s case or controversy requirement, which limits courts to deciding disputes between parties with actual injuries that were caused by the legal wrong of which they complain and which are reme- diable by a court.” Frost, Limits of Advocacy, at 460. In particular, she says that the “principle that the parties, and not the judge, should frame cases is grounded upon the same values as those underlying the doctrine of standing.”Id.
“Both promote separation of powers by preventing courts from setting their own agendas, as is the prerogative of the legislature. And both ensure that courts decide only those issues that are briefed and argued by stakeholders with an incentive to adequately represent their interests to the court, which in turn will produce better judicial decisions.”Id.
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 75 of 132 16-10128 NEWSOM and JORDAN, JJ., Dissenting 13 aforementioned “judicial issue creation”—can breed suspicion and cynicism. One critic, for instance, has worried that “courts are more likely to raise an issue sua sponte if they think a case is really important or if the judges really want to reach a particular result,” and that “[t]he absence of a consistent principle leaves courts open to the accusation that ignoring the adversary process is a political action, where a court reaches out to legislate instead of following judicial norms.” Barry A. Miller, Sua Sponte Appellate Rulings: When Courts Deprive Litigants of an Opportunity To Be Heard,39 San Diego L. Rev. 1253
, 1260, 1287 (2002). And as a descriptive matter, he says, both “side[s]” are guilty: “[R]aising and deciding new issues is by no means limited to any one part of the political spectrum. Liberal and conservative judges alike decide new issues sua sponte; each side complains when the other does it.”Id. at 1261
.
5. Acceptance and Settlement—Finally, adherence to the
adversarial method and the party-presentation principle “promotes
litigant and societal acceptance of decisions rendered by the
courts.” Landsman, Adversary System, at 44. The reason is that
“if a party is intimately involved in the adjudicatory process and
feels like he has been given a fair opportunity to present his case,
he is likely to accept the results whether favorable or not.” Id.By contrast, there is a risk that issue-creation—at least in its more ex- treme forms—may produce the opposite effect: “If the grounds for the decision fall completely outside the framework of the argu- ment, making all that was discussed or proved at the hearing USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 76 of 132 14 NEWSOM and JORDAN, JJ., Dissenting 16-10128 irrelevant . . . the adjudicative process has become a sham, for the parties’ participation in the decision has lost all meaning.” Lon L. Fuller, The Forms and Limits of Adjudication,92 Harv. L. Rev. 353
,
388 (1978).
* * *
Not at all surprisingly to us, this Court has made similar ob-
servations about the values of party presentation—and indeed, has
done so in circumstances similar to those here. Like this case,
Hamilton v. Southland Christian School, Inc., 680 F.3d 1316(11th Cir. 2012), presented the question whether we should affirm a dis- trict court’s judgment on a ground that the appellee hadn’t properly presented in its principal brief. (Unlike the United States here, the appellee in Hamilton had at least tried to raise the alter- native ground for affirmance, both in a supplemental brief and at oral argument. Seeid.
at 1318–19.) We declined to venture beyond the issues squarely put before us and decide the issue sua sponte. In his opinion for the Court, Judge Ed Carnes underscored three of the fundamental interests served by careful adherence to party- presentation principles. First, truth and accuracy: “The require- ment that issues be raised in a party’s brief on appeal promotes careful and correct decision making.”Id. at 1319
. Second, funda- mental fairness: The party-presentation rule “ensures that the op- posing party has an opportunity to reflect upon and respond in writing to the arguments that his adversary is raising.”Id.
And third, judicial economy: “[I]t gives the appellate court the benefit of written arguments and provides the court and the parties with USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 77 of 132 16-10128 NEWSOM and JORDAN, JJ., Dissenting 15 an opportunity to prepare for oral argument with the opposing po- sitions and arguments in mind.”Id.
C
To be fair, although rigorous adherence to the party-presen-
tation principle is the entrenched norm in our adversarial system,
there is a countervailing view. Commentators with a more expan-
sive understanding of the judicial role have defended sua sponte
decisionmaking—which they call “judicial issue creation.” Frost,
Limits of Advocacy, at 481. At the theoretical level, issue-creation
advocates reject the “traditional” adversarial model of adjudica-
tion, which they see merely as “a vehicle for settling disputes be-
tween private parties about private rights,” in favor of what they
call a “public law” model, in which “the object of litigation is the
vindication of constitutional or statutory policies.” Abram Chayes,
The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev.
1281, 1282-84 (1976). The judge, they say, is not just a decider of discrete cases; rather, she has the “responsibility . . . for organizing and shaping litigation to ensure a just and viable outcome.”Id. at 1302
. Although issue-creation advocates acknowledge that “dis- pute resolution may be one consequence” of adjudication, they in- sist that the true “function of the judge . . . is not to resolve disputes, but to give the proper meaning to our public values.” Owen M. Fiss, The Supreme Court, 1978 Term—Foreword: The Forms of Justice,93 Harv. L. Rev. 1
, 30 (1979). There is a risk, they warn, that in pursuit of that lofty goal, a court could “be led into error” by the parties, who might “wittingly or unwittingly” compromise USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 78 of 132 16 NEWSOM and JORDAN, JJ., Dissenting 16-10128 broader social and political interests; accordingly, issue-creation ad- vocates insist that it would be “almost absurd [for a court] to rely exclusively on the initiatives of those persons or agencies who hap- pened to be named plaintiff and defendant.”Id.
at 25–26. The rem-
edy, they contend, is sua sponte decisionmaking.
More practically, issue-creation advocates point to instances
(1) in which the adversarial system might break down and (2) in
which scrupulous adherence to a party-presentation requirement
might lead courts to make bad law with potentially lasting down-
stream consequences. With respect to the former, they emphasize
“the most persistent criticism of adversarial procedure—that it fails
when the parties’ skills and resources are not evenly matched.”
Frost, Limits of Advocacy, at 499. They insist that in order to
achieve the objective of producing correct results—one of the lead-
ing justifications for adversarial procedure—“there must be at least
a rough equality in the resources and presentation skills of the ad-
vocates for either party,” which, they say, “all too often does not
exist.” Id. at 500. “When the resources and abilities of opposing parties are lopsided,” they warn, “the adversarial system will fail to produce accurate results.”Id.
Stating the perceived risk in stark terms, they fear that “[t]he wealthier, sophisticated, repeat-player litigants will usually win [and] the poorer, outgunned, one-shot lit- igants will lose, regardless of the merit of their cases.”Id.
By rais- ing and deciding issues sua sponte, issue-creation advocates say, judges can “ameliorate the imbalances that undermine the adver- sarial system.”Id. at 501
.
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16-10128 NEWSOM and JORDAN, JJ., Dissenting 17
Separately, issue-creation advocates emphasize (as does the
majority here, see Maj. Op. at 33–36) the courts’ Marbury-pre-
scribed duty to “say what the law is,” and to do so accurately—in
short, to “get it right.” See Frost, Limits of Advocacy, at 471 (quot-
ing Marbury v. Madison, 5 U.S. (1 Cranch) 137(1803)). “When the parties fail to fully and accurately describe applicable legal stand- ards,” they say, “the norm against judicial issue creation comes into conflict with the judiciary’s law pronouncement power.” Id. at 472. To underscore their point, issue-creation advocates advert to two notable instances in which the Supreme Court decided monu- mental constitutional issues sua sponte. First, in Erie Railroad v. Tompkins,304 U.S. 64
(1938), the Court overruled its earlier deci- sion in Swift v. Tyson,41 U.S. (16 Pet.) 1
(1842), and held that fed- eral courts lacked the authority to craft “federal general common law”—despite the fact that no party had asked it to do so. Second, in Washington v. Davis,426 U.S. 229
(1976), the Court rejected the
parties’ shared assumption that the Equal Protection Clause barred
even unintentional race discrimination and held, sua sponte, that
the Clause prohibits only conduct motivated by discriminatory an-
imus. Both Erie and Davis, the issue-creation advocates say, “can
be understood as judicial efforts to avoid issuing erroneous state-
ments of law.” Frost, Limits of Advocacy, at 473.
It is “particularly important that [courts] make accurate
statements about the meaning of law,” issue-creation advocates
contend, “because federal judges operate within a common law
system in which the precedent in one case establishes the law for
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18 NEWSOM and JORDAN, JJ., Dissenting 16-10128
all who follow.” Id. at 453. Given that reality, they warn that rig-
orous adherence to a party-presentation requirement could perpet-
uate error: “[I]f litigants fail to fairly, completely, and accurately
describe the law, judicial opinions may themselves contain flawed
statements of law that will bind all who come after.” Id. at 492.
Accordingly, issue-creation advocates insist that “[i]n a legal system
in which appellate opinions not only establish the meaning of law,
but do so through precedent that binds future litigants, courts can-
not cede to the parties control over legal analysis.” Id. at 453.
We will consider below whether these (or other) concerns
warrant a departure from the usual rule of party presentation—and
thus justify issue-creation—in this case. See infra at 58–68. At the
risk of spoiling the surprise, they don’t.
* * *
That’s quite a wind-up, we recognize. The point is simply
that the party-presentation principle is part and parcel of the adver-
sarial system, which, in turn, is part and parcel of the American ju-
dicial tradition. Proponents of sua sponte decisionmaking—i.e.,
“judicial issue creation”—thus bear the heavy burden of demon-
strating its propriety. We turn next to the circumstances in which
sua sponte decisionmaking is—and most certainly is not—permis-
sible, and explain why this case, no matter how understood, falls
on the wrong side of that line.
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16-10128 NEWSOM and JORDAN, JJ., Dissenting 19
III
Despite adversarialism’s pedigree, and the important values
it serves, all agree that “[t]he party presentation principle” is “not
ironclad.” Sineneng-Smith, 140 S. Ct. at 1579. “There are no doubt circumstances in which a modest initiating role for a court is ap- propriate.”Id.
The question this case presents is when, and under what circumstances, a court should raise and decide an issue that the parties haven’t presented. More particularly, and to use the Supreme Court’s words, the question is whether the Court here has acted in an appropriately “neutral,” “passive,” and “modest” fashion by sua sponte raising, considering, and deciding the applica- bility of the good-faith exception to the exclusionary rule. Seeid.
A
In order to decide that question, we must first carefully dif-
ferentiate two related-but-distinct concepts: “waiver” and “forfei-
ture.” As the majority opinion correctly observes, “jurists some-
times”—but mistakenly and confusingly—“use the words inter-
changeably.” Maj Op. at 18. Indeed, nowhere is that confusion
more evident than in the procedural history of this case. In both of
its opinions, for instance, the panel majority repeatedly character-
ized the government’s non-argument of the good-faith issue as a
“waiver”—holding that even though the government had
“waived” the issue, the court could nonetheless reach it because
“[w]aiver is a prudential doctrine.” Campbell, 970 F.3d at 1357,
1358, 1359, 1359 n.20, 1359 n.21, 1360; Campbell,912 F.3d at 1355
.
And yet today, in vindicating the panel’s decision, the en banc
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20 NEWSOM and JORDAN, JJ., Dissenting 16-10128
majority repeatedly asserts, to the contrary, that the case has noth-
ing to do with waiver and that, instead, the government’s non-ar-
gument constitutes a mere “forfeiture.” Maj. Op. at 16 n.5, 17, 21,
25 & n.11, 29, 30, 31, 33, 36. 2
So, to set the record straight, “[t]he terms waiver and forfei-
ture—though often used interchangeably by jurists and litigants—
are not synonymous.” Hamer v. Neighborhood, 138 S. Ct. 13, 17 n.1 (2017). Forfeiture, on the one hand, “is the failure to make the timely assertion of a right,” while waiver, on the other, is the “in- tentional relinquishment or abandonment of a known right.” Id. (citations and quotation marks omitted). On this much, at least, we agree with our colleagues in the majority: Both in the law 2 Before getting in too deep, a brief word in response to Chief Judge Pryor’s separate concurrence, which faults us for—in his words—“review[ing] the panel’s decision.” Pryor Concurring Op. at 1. The Chief is of course correct that the en banc court doesn’t technically sit to review a three-judge panel’s decision. Rather, the full court convenes to decide “question[s] of exceptional importance,” Fed. R. App. P. 35(a)(2)—and, having done so, often remands the balance of the case to the panel for application or resolution of other issues, see, e.g., Lewis v. City of Union City,918 F.3d 1213
, 1231 n.20 (11th Cir. 2019) (en banc); Ovalles v. United States,905 F.3d 1231
, 1236 n.2, 1253 (11th Cir. 2018) (en banc); United States v. Stein,881 F.3d 853, 859
(11th Cir. 2018) (en
banc). To that end, we typically direct the parties to brief and argue a discrete
question of law. That question here (with our emphasis) was as follows: “Is
the good-faith exception to the exclusionary rule a proper ground for affirming
Campbell’s conviction despite the government’s failure to raise that alterna-
tive ground before the panel?” It should go without saying that the answer to
that question—which we framed—requires an analysis of the panel-stage pro-
ceedings.
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16-10128 NEWSOM and JORDAN, JJ., Dissenting 21
generally and in this case particularly, the distinction between
waiver and forfeiture “matters.” Maj. Op. at 18. Let us explain.
B
The Supreme Court’s decision in Wood v. Milyard, 566 U.S.
463(2012), illustrates the waiver-forfeiture distinction in operation. In Wood, a convicted murderer sentenced to life in state prison filed a federal habeas petition. In the district court, the state de- clined to press the argument that the petition was untimely, twice informing the court that while it did not “conced[e]” timeliness, it would not “challeng[e]” the petition on that basis.Id. at 467
. Con- sistent with the state’s litigating position, the district court passed over the timeliness issue and dismissed some of the petitioner’s claims for failure to exhaust and others on the merits. Seeid.
On appeal, though, the Tenth Circuit raised the timeliness issue on its own and directed the parties to brief it alongside the merits. Seeid.
at 467–68. Notably for present purposes, the Tenth Circuit did so for some of the same reasons that the majority here justifies sua sponte decisionmaking—namely, (1) because an appellate court “ha[s] discretion to affirm on any ground adequately supported by the record” and (2) because, in essence, case-specific considerations favored forging ahead to consider and decide the issue. Wood v. Milyard,403 F. App’x 335
, 337 n.2 (10th Cir. 2010) (citation and quotation marks omitted), rev’d,566 U.S. 463
; see also Maj. Op. at
33–36.
In reversing the Tenth Circuit’s decision, the Supreme
Court drew a sharp contrast between issues that are inadvertently
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22 NEWSOM and JORDAN, JJ., Dissenting 16-10128
“forfeited” and those that are deliberately “waived.” Relying on its
earlier decision in Granberry v. Greer, 481 U.S. 129(1987), the Court acknowledged that there is no per se “bar to court of appeals’ consideration of a forfeited habeas defense.” Wood,566 U.S. at 471
(emphasis added). Even so, the Court stressed, an appellate court’s power to consider forfeited arguments—including those made by state governments in habeas proceedings, in which states are typi- cally entitled to the benefit of the doubt—is narrowly limited. Spe- cifically, the Court repeated its earlier holding that “federal appel- late courts have discretion, in ‘exceptional cases,’ to consider” ar- guments that the state has “‘inadvertent[ly]’ overlooked.”Id.
(quoting Granberry,481 U.S. at 132
).
Even more importantly for present purposes, though, the
Court emphasized in Wood that “a federal court does not have
carte blanche to depart from the principle of party presentation
basic to our adversary system.” Id. at 472 (citation omitted). In
particular, quoting its intervening decision in Day v. McDonough,
547 U.S. 198(2006), the Court stated, as relevant here, that a federal court can raise and decide an issue sua sponte “[o]nly where the State [has] not ‘strategically withh[e]ld . . . or chose[n] to relin- quish’” it, and reiterated Day’s observation that “[i]t would be ‘an abuse of discretion’ . . . for a court ‘to override a State’s deliberate waiver’” of a habeas defense. Wood, 566 U.S. at 472–73 (quoting Day,547 U.S. at 202, 211
). Accordingly, the Court clarified, the
power to act sua sponte extends only to instances of “inadvertent
error”—not to those in which the party defending the lower court’s
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16-10128 NEWSOM and JORDAN, JJ., Dissenting 23
judgment has made a “deliberate decision” to jettison an alterna-
tive basis for affirmance. Id. at 473 (citation and quotation marks
omitted).
The Court in Wood held that the state had consciously
waived—rather than inadvertently forfeited—its timeliness argu-
ment. The state, the Court said, “was well aware of the statute of
limitations defense available to it and of the arguments that could
be made in support of the defense.” Id. at 474. Although it had a
“clear and accurate understanding of the timeliness issue,” the state
“deliberately steered” the lower court away from that ground and
toward the merits. Id. Because, in doing so, it had “intentional[ly]
relinquish[ed] or abandon[ed] a known right”—and thus commit-
ted waiver, rather than mere forfeiture—the Supreme Court held
that the Tenth Circuit had erred in sua sponte raising and consid-
ering the timeliness issue. Id. (citation and quotation marks omit-
ted).
Whatever Wood’s outer boundaries—whether, for in-
stance, it is properly read (as it seems) to establish a categorical pro-
hibition—it is undeniable that a federal court’s sua sponte consid-
eration and decision of an issue that a party has deliberately waived
represents a far greater departure from (and affront to) the adver-
sarial process than does a court’s sua sponte consideration and de-
cision of an issue that has been merely forfeited. The reason is ob-
vious: If the party presentation and control of litigation that is ad-
versarialism’s hallmark means anything at all, surely it means that
a court—by design, a “passive instrument[] of government,”
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24 NEWSOM and JORDAN, JJ., Dissenting 16-10128
Sineneng-Smith, 140 S. Ct. at 1579—shouldn’t countermand a liti-
gant’s conscious choice about how best to frame its case.
Accordingly, in deciding whether a court has acted appropri-
ately “modest[ly]” in raising, considering, and deciding an issue sua
sponte, see id., it is important to determine first—at the outset—
whether, in so doing, it has overridden a deliberate waiver or
merely forgiven an inadvertent forfeiture.
C
To its credit, the majority seems to agree. Acknowledging
the Supreme Court’s holding in Wood that “[i]t would be ‘an abuse
of discretion’ . . . for a court ‘to override a State’s deliberate
waiver,’” Wood, 566 U.S. at 472–73 (quotations omitted), the ma-
jority concedes that “if a party affirmatively and intentionally relin-
quishes an issue, then courts must respect that decision”—full stop.
Maj. Op. at 19–20. To the contrary, the majority says—correctly,
and again quoting Wood—that an appellate court has limited au-
thority to “‘resurrect’” a forfeited issue provided that “‘extraordi-
nary circumstances’” warrant doing so. Id. at 20 (quoting Wood,
566 U.S. at 471 & n.5). So there seems to be raging consensus about
the governing principles here: If the government waived the good-
faith issue by opting not to pursue it before the panel, then it’s off
the table. If, instead, the government merely forfeited the good-
faith issue, then the Court can reach and decide it upon a showing
of “extraordinary circumstances.”
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16-10128 NEWSOM and JORDAN, JJ., Dissenting 25
The pivotal question, then: Is this a waiver case or a forfei-
ture case? As already noted, the panel majority (repeatedly) called
the government’s non-argument of the good-faith exception a
“waiver.” Today’s majority, by contrast, insists that this case in-
volves only a “forfeiture.” See id. at 25. In particular, the en banc
majority says (1) that “the mere failure to raise an issue in an initial
brief on direct appeal should be treated as a forfeiture of the issue,”
not a waiver, id. at 21, and (2) that because the government here
simply “failed to brief the good-faith exception on appeal,” its good-
faith argument was only “forfeited,” id. at 25. With the first part of
the majority’s argument, we can agree: A “mere failure” to brief
an issue constitutes a forfeiture, and so long as “extraordinary cir-
cumstances” exist, an appellate court can consider the issue sua
sponte. But with the second part—that a “mere failure” is all that
occurred here—we strongly disagree.
1
Tellingly, the majority never really explains why it thinks
the government’s non-argument of the good-faith issue resulted
from a “mere failure.” It just repeatedly asserts that proposition as
fact, as if hoping to speak it into existence. See, e.g., id. at 14 (re-
ferring to “the Government’s failure to address the matter on ap-
peal”); id. at 15 (“Government’s failure”); id. at 17 (“Government’s
failure”); id. at 21 (“mere failure”); id. at 22 (“failure”); id. at 23
(“failure to brief”); id. at 25 (“The Government failed to brief the
good-faith exception on appeal.”); id. at 29 (“the mere failure of the
Government”); id. at 30 (“the mere failure to brief an issue”). In
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26 NEWSOM and JORDAN, JJ., Dissenting 16-10128
the same vein, the majority repeatedly asserts—without elabora-
tion—that the government “merely made a mistake by failing to
brief the good-faith exception.” Id. at 29; see also id. at 33 (referring
to “Government counsel’s mistake[]”).
For reasons we will explain in due course, even if the major-
ity’s premise were correct—i.e., even if this case involved a “mere
failure,” and thus a forfeiture—its conclusion that sua sponte con-
sideration of the good-faith issue is proper would be wrong. See
infra Part IV. In fact, though, its premise is wrong—dead wrong.
The record here demonstrates beyond any doubt whatsoever that
the government consciously, intentionally, and deliberately
waived its position that the good-faith exception justified admis-
sion of the evidence seized from Campbell’s car. Indeed, the gov-
ernment has admitted as much—the majority just refuses to hear
it. Here are the details.
In its en banc brief, the government acknowledged what we
all know to be true—that “the Department of Justice may, in some
cases, make a deliberate decision not to assert an available ground
for affirmance.” En Banc Br. of the United States at 28. 3 Without
coming right out and saying so, though, the government then
3 For instance, the government might opt not to assert a good-faith argu-
ment—or another applicable exception to the exclusionary rule—because it
wants a definitive determination about the constitutionality of a particular po-
lice practice. Were it to assert the good-faith (or some other) exception, it
would give the court an opportunity to bypass the constitutional question,
thereby leaving prosecutors and law-enforcement officers guessing.
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16-10128 NEWSOM and JORDAN, JJ., Dissenting 27
suggested—albeit elliptically—that perhaps (?) that wasn’t the case
here: “[L]ike any litigant,” it said, “the government is fallible and
sometimes omits, unwittingly, a dispositive argument for affirm-
ing.” Id. at 31 (emphasis added); accord id. at 1, 12, 21 (same). The
majority seems to take the latter statement as a representation that,
in fact, in this case, the government simply “fail[ed]” to argue good
faith—i.e., that it just made an honest “mistake.”
But there’s so much more to the story. Given the obscurity
of the government’s briefing—and in an effort to get to the bottom
of the waiver-forfeiture issue—several members of the Court
sought to clarify at the en banc oral argument precisely what un-
derlay the government’s non-argument of the good-faith issue be-
fore the panel. An extended colloquy ensued. For the sake of com-
pleteness, we reproduce the pertinent portions of that colloquy be-
low. But we won’t bury the lede. At the end of the day, the gov-
ernment’s lawyer candidly—if grudgingly—acknowledged that, in
fact, the government’s non-argument of the good-faith issue was
not “unwitting[]” or inadvertent but, rather, was the product of a
“conscious” litigation decision.
At the outset of the government’s argument, one judge
asked the government’s lawyer about his brief’s insinuation—
again, it wasn’t quite a representation—that the omission of the
good-faith issue from the government’s panel-stage brief had been
“unwitting[].” This exchange followed:
JUDGE NEWSOM: Are you representing, as an of-
ficer of the court, that the decision not to brief the
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28 NEWSOM and JORDAN, JJ., Dissenting 16-10128
good faith exception before the panel was inadvert-
ent? That’s a little hard for me to believe given the
scrum over it [i.e., the amount of attention given to
the good-faith issue] in the district court.
GOVERNMENT: Your honor, we are not represent-
ing that it was inadvertent in the sense that we were
not aware of the existence of the good-faith issue in
the district court. What I can say is that it was a mis-
take not to brief it and that we posed perhaps unwar-
ranted overconfidence, as this court recently said in a
different case, in the strength of our own merits argu-
ment.
CHIEF JUDGE PRYOR: Is that a way of saying that
it was not a conscious decision not to assert it?
GOVERNMENT: I would say it was not a strategic
decision to avoid resolution of the appeal on the basis
of the good-faith exception.
JUDGE MARTIN: What happened? What hap-
pened? I mean, you say ‘unwittingly.’ * * * Did you
just forget about it? I mean, you had already argued
in the district court . . . asking the district court not to
decide [the case] on that basis. So, what happened?
GOVERNMENT: To be clear, in the district court, I
would like to be very clear about this, when we were
asked about supplemental briefing with respect to the
good-faith exception, we took a position that the
good-faith exception applied, if necessary. When we
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16-10128 NEWSOM and JORDAN, JJ., Dissenting 29
asked the district court not to resolve the issue on that
ground, what we said, what we argued, was that we
won on the merits, which is exactly the same position
that we asserted on appeal. Now, the district court
didn’t reach that issue . . . .
JUDGE MARTIN: No, I know—so, what do you
mean when you say you ‘unwittingly’ omitted the ar-
gument from your brief to this court? What hap-
pened?
GOVERNMENT: Precisely as I was explaining just a
minute ago, the district court did not issue a decision
on the good-faith exception. We were confident that
we . . . would be able to prevail based on the binding
precedent of this court at the time, Griffin, and we did
not think it was necessary to add another [argument].
JUDGE MARTIN: So it was not unwitting. It was an
affirmative decision.
JUDGE NEWSOM: It was a conscious decision. In
answer to . . . Chief Judge Pryor’s question, it was a
conscious decision not to brief it. You just thought
you had a winner at step one.
GOVERNMENT: It was conscious, yes, it was con-
scious—again, I don’t want to get lost in sort of a lin-
guistic battle about conscious as opposed to unwit-
ting. What I can say is that there was no strategic at-
tempt to avoid a decision based on the good-faith ex-
ception. That issue was not resolved by the district
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30 NEWSOM and JORDAN, JJ., Dissenting 16-10128
court [and] we thought we had [a] plenty good argu-
ment on the merits and that’s the argument that we
asserted on appeal.
En Banc Oral Arg. at 17:30–20:10.
The upshot of that colloquy is unmistakable. The govern-
ment has (1) conceded that the omission of the good-faith argu-
ment from its panel-stage brief was not “unwitting[]” or inadvert-
ent, (2) conceded, to the contrary, that the omission was “con-
scious,” and (3) argued only that the omission wasn’t “strategic.”
The government’s concessions—which, as the exchange makes
clear, were fully and fairly probed, tested, and explained—conclu-
sively establish that its non-argument of the good-faith issue re-
sulted from waiver, not mere forfeiture. The government here
didn’t just “fail[] to make the timely assertion” of its good-faith ar-
gument; rather, it “intentional[ly] relinquish[ed] or abandon[ed]”
that argument. Hamer, 138 S. Ct. at 17 n.1 (citations and quotation
marks omitted).
2
Our colleagues in the majority are understandably sensitive
about the oral-argument exchange, and they’ve chided us for rely-
ing on it, going so far as to characterize the questioning of the gov-
ernment’s lawyer as an exercise in courtroom “antics,” Maj. Op. at
27, and an “inquisition,” Pryor Concurring Op. at 3. Those are
strong words, so let us briefly address the objections.
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16-10128 NEWSOM and JORDAN, JJ., Dissenting 31
a
“[M]ost egregious[ly],” the majority charges, “the dissent”—
by which it presumably means some or all the judges that later
joined this opinion—“essentially conducted an evidentiary hearing
at oral argument.” Maj. Op. at 26. It would have been perfectly
permissible, the majority reasons, for a member of this Court to
ask the government’s lawyer whether the United States was “waiv-
ing or ha[d] waived” the good-faith issue—and, indeed, to treat any
affirmative answer to that question as a binding concession. Id.But, the majority complains, “the dissenting judges” didn’t “pursue this route” but, rather, set out “to elicit evidence”—and “sought testimony”—about the government’s “knowledge and intentions” by asking whether its non-argument of the good-faith issue before the panel was “unwitting” and “inadvertent” or, instead, “con- scious.”Id.
at 26–27.
A few responses: First, aren’t we slicing the bologna a little
thin? Can it really be that it would have been okay to inquire
whether the government had “waived” the good-faith issue, but
that asking whether its non-argument was “conscious” or inten-
tional is somehow verboten? Remember that for better or worse,
the Supreme Court has focused on intentionality in distinguishing
between waiver and forfeiture: Again, in the Court’s words,
waiver results from an “intentional relinquishment,” forfeiture
from an inadvertent “failure.” Hamer, 138 S. Ct. at 17 n.1 (quota-
tion marks omitted). So it seems to us that the questions, “Did you
waive the good-faith issue?” and “Did you make a conscious
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 94 of 132
32 NEWSOM and JORDAN, JJ., Dissenting 16-10128
decision not to assert the good-faith issue?” are, in effect, one and
the same. The logic of the majority’s contrary view—which seems
to rest on some sort of magic-words formalism—escapes us. 4
Second, and to be absolutely clear, it wasn’t just “the dissent-
ing judges” who joined in the so-called “antics.” The oral-argu-
ment questioning was no sinister plot—no cabal-led gotcha game.
After all, it was Chief Judge Pryor, who not only joins today’s ma-
jority opinion but has also filed a separate concurrence to under-
score his objection to what he calls the in-court “inquisition,” Pryor
Concurring Op. at 3, who asked the dispositive question—namely,
4 Regardless, it wasn’t just the government’s use of the word “conscious” that
established the requisite intentionality. If the government’s non-argument of
the good-faith exception before the panel had actually been inadvertent, its
repeated in-court statements that it didn’t brief the issue because it was “con-
fident” (even “overconfiden[t]”) in its merits arguments, see En Banc Oral Arg.
at 18:15–19:30, wouldn’t have made any sense. A party’s “confiden[ce]” in one
position can’t, as a matter of logic, cause it to accidentally omit some other
position.
It’s also important to note that while the government’s responses to
the Court’s questions in this case expressly confirmed its earlier waiver, “a
valid waiver”—even when a constitutional right is on the line—“need not be
express.” Hemphill v. New York, 142 S. Ct. 681, 694 (2022) (Alito, J., joined by Kavanaugh, J., concurring). Rather, an “[i]mplied waiver can be established through ‘a course of conduct’ even ‘absent formal or express statements of waiver.’”Id.
(quoting Berghuis v. Thompkins,560 U.S. 370
, 383–84 (2010)). Indeed, “‘[a]s a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner incon- sistent with their exercise has made a deliberate choice to relinquish the pro- tection those rights afford.’”Id.
(quoting Berghuis,560 U.S. at 385
).
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 95 of 132
16-10128 NEWSOM and JORDAN, JJ., Dissenting 33
whether the government had made a “conscious decision not to
assert” the good-faith exception, En Banc Oral Arg. at 18:15–18:20.
Finally, and relatedly, let us not forget that it was the gov-
ernment’s vague suggestion in its en banc brief—that having ar-
gued the good-faith exception in the district court, at that court’s
express direction, it had somehow “unwittingly” failed to renew
that position before the panel—that prompted the oral-argument
colloquy in the first place. See En Banc Br. of the United States at
31; accord id. at 1, 12, 21. It seems to us that given the underlying
law—which, again, asks courts to draw the waiver-forfeiture dis-
tinction by looking to intentionality—and the haziness of the gov-
ernment’s briefing, the members of the en banc court had not just
a right but also an obligation to probe the circumstances surround-
ing the government’s non-argument. To the extent that the ma-
jority means to suggest that the members of this Court simply had
to take at face value—and without question—the government’s
dubious (and as it turns out erroneous) insinuation that its non-ar-
gument of the good-faith exception was the product of an inadvert-
ent mistake, we’ll just have to agree to disagree.
b
The majority separately objects on the ground that the oral-
argument colloquy simply isn’t probative with respect to the
waiver-forfeiture distinction—that our reliance on it is just “unper-
sua[sive].” Maj. Op. at 28. The reason, the majority says, is that
the lawyer who presented the government’s case before the en
banc court, Mr. Francesco Valentini, didn’t author the
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 96 of 132
34 NEWSOM and JORDAN, JJ., Dissenting 16-10128
government’s panel-stage brief and didn’t enter an appearance in
the case until shortly before en banc rehearing was granted. See id.
at 28. Accordingly, the majority concludes, “[a]ny information he
may have had about the panel brief writer’s knowledge or inten-
tions would be hearsay.” Id.
We have two responses: First, and we think significantly,
Mr. Valentini didn’t appear before the en banc court as a lawyer for
a private litigant, let alone as a “witness” offering after-the-fact “tes-
timony” about the panel-stage brief-writer’s state of mind. See id.
at 26, 27 n.12, 28 n.13, 29. Rather, as his opening statement ex-
plained, he appeared as counsel “for the United States.” En Banc
Oral Arg. at 16:18–16:28. Like all government lawyers who come
before us, he claimed—quite properly—the authority to speak on
behalf of the sovereign itself. Cf. 28 U.S.C. § 517 (noting that law-
yers designated by the Attorney General shall “attend to the inter-
ests of the United States”).
Second, while Mr. Valentini didn’t author the government’s
panel-stage brief, which omitted any discussion of the good-faith
issue, he did author the government’s en banc brief, which repeat-
edly (but elliptically) suggested that “the government”—again, not
the panel-stage brief’s author, but “the government” itself—had
only “unwittingly” neglected to address good faith. To his consid-
erable credit, when he was asked to explain that suggestion, and
was pressed about the specifics of government’s decision not to ar-
gue the good-faith exception, Mr. Valentini represented—not only
as an agent of the United States but also as an officer of the court—
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 97 of 132
16-10128 NEWSOM and JORDAN, JJ., Dissenting 35
that it was made “conscious[ly].” En Banc Oral Arg. at 19:50–19:55.
The majority just refuses to take his word for it.
c
The majority’s final colloquy-related charge is that we have
ignored “the Government’s” statements—by which it quite rightly
means Mr. Valentini’s statements for the United States—that “it”—
again, the government itself—“did not make a ‘strategic’ decision
not to brief the good-faith exception.” Maj. Op. at 29. Wrong.
We’re willing to take those protestations at face value. 5 The prob-
lem for the majority, with which it never contends, is that by dint
of binding Supreme Court precedent, those protestations are le-
gally irrelevant. As already explained, echoing its earlier decision
in Day, the Supreme Court in Wood emphasized that a federal
court can depart from the party-presentation principle and consider
and decide an issue sua sponte “[o]nly” when the non-arguing liti-
gant has not either “‘strategically withh[e]ld . . . or chose[n] to re-
linquish it.’” Wood, 566 U.S. at 472(quoting Day,547 U.S. at 211
) (emphasis added). “Intentional”—or to use the government’s word, “conscious”—relinquishment constitutes waiver, whether 5 In all honesty, though, we struggle to understand how a litigant’s (or its law- yer’s) decision to drop one position in favor of another in which it (or he or she) has more “confiden[ce]” is anything other than a “strategic” decision. Cf. Yarborough v. Gentry,540 U.S. 1, 8
(2003) (“When counsel focuses on some issues to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect.”); Burger v. Kemp,483 U.S. 776, 784
(1987) (characterizing as a “sound strategic” judgment a lawyer’s
decision to “forgo” an argument that he had employed “as a trial defense”).
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 98 of 132
36 NEWSOM and JORDAN, JJ., Dissenting 16-10128
or not motivated by “strategic[]” considerations. Id. at 472, 474
(quotation marks omitted). 6
* * *
With all its talk of “antics,” “inquisitions,” and faux “eviden-
tiary hearings,” the majority seems to want to complicate—and ob-
scure—a very straightforward event, which surely resembles simi-
lar events that occur in courtrooms around this country every day.
The government’s en banc brief repeatedly—but vaguely—insinu-
ated that it had “unwittingly” failed to argue the good-faith excep-
tion in its panel brief. Knowing that the case could turn on the
distinction between waiver and forfeiture, and that the waiver-
6 Before we move on, one last colloquy-related item: The majority’s vague
suggestion that the government should be forgiven because, in opting not to
argue the good-faith exception before the panel, it was merely “attempting to
follow the Supreme Court’s advice on appellate briefing” by narrowing the
issues “‘in the limited number of pages allowed,’” Maj. Op. at 23 (quoting
Jones v. Barnes, 463 U.S. 745, 752(1983)), does not withstand even minimal scrutiny. As an initial matter, it is descriptively inaccurate. Immediately after the oral-argument exchange already quoted, Mr. Valentini was asked the fol- lowing friendly question: “Are you saying that you only had . . . however many pages, and you wanted to spend your pages on the merits rather than on [the good-faith] exception—is that essentially what you’re saying?” En Banc Oral Arg. at 20:15–20:26. Again, to his credit, Mr. Valentini declined the lifeline: “Well, I don’t think we were quite up against the word limit, which is generous.”Id.
at 20:26–20:29. Moreover, and in any event, the majority’s suggestion boomerangs back around on itself, as “select[ing] the issues to be argued on appeal,” Maj. Op. at 23 (quoting Johnson v. Alabama,256 F.3d 1156
,
1188 (11th Cir. 2001)), is precisely the sort of “strategic” judgment that the
majority insists the government didn’t make.
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 99 of 132
16-10128 NEWSOM and JORDAN, JJ., Dissenting 37
forfeiture distinction itself turns on questions about a party’s intent,
several judges—some now in the majority, some now in dissent—
sensibly sought to clarify the government’s position at oral argu-
ment. Was the government’s decision truly “unwitting”—“inad-
vertent”—or was it instead “conscious”? In answer to the Court’s
questions, the government’s lawyer gave a candid answer: The de-
cision was conscious. It really is as simple as that. 7
The majority’s stubborn insistence—in the face of the gov-
ernment’s in-court concessions—that this case involves mere for-
feiture rather than intentional waiver, see Maj. Op. at 17–36, only
underscores (and exacerbates) the anti-adversarialism of its ap-
proach. This Court has now stepped in to rescue the government
not just once but twice: as an initial matter, from its non-argument
of the good-faith issue, and now, from the consequences of its ad-
mission that it deliberately decided not to press a good-faith-based
ground for affirmance. That is the polar opposite of “neutral,”
“passive,” and “modest.” Sineneng-Smith, 140 S. Ct. at 1579 (quo-
tation marks omitted).
3
The government’s on-the-record concession that it “con-
scious[ly]” decided to jettison the good-faith issue before the panel
7We urge any remaining skeptics to listen to the oral-argument recording for
themselves. See United States Court of Appeals for the Eleventh Circuit, Oral
Argument Recordings, United States v. Campbell, No. 16-10128 (June 15,
2021).
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 100 of 132
38 NEWSOM and JORDAN, JJ., Dissenting 16-10128
brings this case squarely within the logic of Wood, which (again)
held that while a court of appeals has some discretion to take up
sua sponte a forfeited issue, it “abuse[s that] discretion” when it
overrides a litigant’s “deliberate waiver” of a potentially winning
argument—even, to repeat, when the “waiv[ing]” party is a state
government in a federal habeas corpus proceeding, in which states
are typically entitled to a healthy dose of deference. See 566 U.S.
at 472–73. Indeed, the government’s only explanation here for its
decision not to press the good-faith exception—“we thought we
had [a] plenty good argument on the merits,” En Banc Oral Arg. at
20:05–20:10—mirrors precisely the state’s (losing) position in
Wood. Just like the state there, the government here had a “clear
and accurate understanding” of an additional argument for affir-
mance, but opted to “refrain” from making that argument and, in-
stead, to “deliberately steer[]” the court “towards the merits.” 566
U.S. at 474. 8
8 For his part, Chief Judge Pryor seeks to distinguish Wood on the grounds
that the Supreme Court in that case (1) focused on what was said “before the
district court,” rather than on appeal, (2) didn’t point to statements made by
“different attorneys” than those whose conduct constituted the alleged
waiver, and (3) determined that the lawyers in that case had waived the perti-
nent position “in writing.” Pryor Concurring Op. at 3–4 (emphasis omitted).
To the extent that the Chief means to say that a newly retained or designated
lawyer can never waive an issue during an appellate argument, the en banc
majority disagrees with him. See Maj. Op. at 24 (acknowledging that “a party
can of course choose to waive its rights at any time,” including “on appeal,”
provided that it does so “through a clear, affirmative statement”). And cor-
rectly so; even a cursory search of this this Court’s decisions reveals that, in
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16-10128 NEWSOM and JORDAN, JJ., Dissenting 39
Under Wood, and in the particular (and perhaps particularly
odd) circumstances of this case, the result is clear: Because the gov-
ernment deliberately—to use its word, “conscious[ly]”—waived its
good-faith argument, it was, and remains, an “abuse of discretion”
to raise, consider, and decide that issue in its favor sua sponte. 566
U.S. at 472–73. That should be the end of the matter.
IV
Although we think it clear beyond peradventure that the
government waived its good-faith argument by declining—not just
“fail[ing]”—to present it to the panel, and that the Court therefore
erred (and errs) in considering and deciding that issue sua sponte,
we will indulge the majority’s premise and assume, for the balance
of the opinion, that the government’s non-argument was the prod-
uct of mere forfeiture. For reasons we will explain, though, even
on that view, the majority has offered no persuasive justification
for insinuating itself into a criminal prosecution to save the United
States—the quintessential sophisticated, repeat-player litigant—
from what are, at best, its litigation failures.
As already noted, the majority articulates the correct legal
standard governing sua sponte consideration and decision of a for-
feited issue: In short, a court may do so when “‘extraordinary cir-
cumstances’” warrant. Maj. Op. at 20 (quoting Wood, 566 U.S. at
471n.5). Indeed, the majority repeatedly recites the “extraordinary appropriate circumstances, we routinely hold parties to the concessions that their lawyers make during oral argument. USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 102 of 132 40 NEWSOM and JORDAN, JJ., Dissenting 16-10128 circumstances” criterion. See, e.g., id. at 17, 20, 21, 25, 30, 31, 33, 34, 35, 53. Conspicuously, though, the majority never makes any effort to apply that (or any other appropriately stringent) standard. To the contrary, the majority says (citing a law review article for support) that ultimately, “the degree to which we adhere to the prudential practice of forfeiture and the conditions under which we will excuse it are up to us as an appellate court.” Id. at 20 (emphasis added). Seemingly in an effort to operationalize that “up to us” measure, the majority seizes on the five-part test articulated in Ac- cess Now, Inc. v. Southwest Airlines Co.,385 F.3d 1324
(11th Cir.
2004)—which, as we will explain, is derived from, and heretofore
has applied in, an altogether different context.
In the sections that follow, we will first engage the major-
ity’s Access Now analysis and explain why it fails even on its own
terms, and then explain why this case doesn’t remotely satisfy the
“extraordinary circumstances” standard that the Supreme Court
has prescribed for forfeiture cases.
A
At the outset, it’s worth reiterating the general rule, which
embodies the adversarial system’s core tenet and which we have
applied even in cases involving inadvertent forfeiture: “Our task in
assessing an appeal is to adjudicate the issues that are fairly and
plainly presented to us and of which the [opposing party] is put on
notice; it is not to hunt for issues that [a party] may or may not
have intended to raise.” United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003). Not surprisingly, “[o]ur cases . . . are USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 103 of 132 16-10128 NEWSOM and JORDAN, JJ., Dissenting 41 replete with the rule that we do not have a duty to raise and decide issues—even constitutional ones—not mentioned by the parties.” United States v. Haynes,762 F.3d 1300, 1310
(11th Cir. 2014). To show just how settled that rule is in this circuit—but mindful of time and space constraints—we cite one case from each of the last eight decades. See, e.g., Nettles v. Gen. Accident Fire and Life As- surance Corp.,234 F.2d 243, 248
(5th Cir. 1956); Riverside Press, Inc. v. NLRB,415 F.2d 281
, 284–85 (5th Cir. 1969); Davis v. Hill Eng’g, Inc.,549 F.2d 314, 324
(5th Cir. 1977); Fed. Sav. & Loan Ins. Corp. v. Haralson,813 F.2d 370
, 373 n.3 (11th Cir. 1987); In re Sec. Grp. 1980,74 F.3d 1103, 1114
(11th Cir. 1996); Access Now, Inc. v. Sw. Airlines Co.,385 F.3d 1324
, 1330–31 (11th Cir. 2004); Univ. of Ala. Bd. of Tr. v. New Life Art,683 F.3d 1266, 1280
(11th Cir. 2012); In re Guillen,972 F.3d 1221, 1230
(11th Cir. 2020). Indeed, this rule is so deeply engrained that we apply it even to pro se litigants. See, e.g., Timpson v. Sampson,518 F.3d 870, 874
(11th Cir. 2008).
The majority disagrees with none of this. It acknowledges,
quite rightly, that “whether sitting as a panel or en banc,” this
Court “may not consider issues forfeited on appeal” in the absence
of what it calls a “forfeiture exception[].” Maj. Op. at 16 n.5. 9 The
9In a footnote, the majority floats the suggestion that perhaps the good-faith
exception isn’t a separate “issue” all but, rather, “merely another argument for
affirming the District Court’s denial of the suppression motion [that] has been
properly made to the en banc Court.” Maj. Op. at 16 n.5. Its reason for doing
so is clear enough—to leverage the (undisputed) rule that once an issue is
properly presented on appeal, a reviewing court is “‘not limited to the partic-
ular legal theories advanced by the parties, but rather retain[s] the independent
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 104 of 132
42 NEWSOM and JORDAN, JJ., Dissenting 16-10128
majority contends that it has found such an exception in Access
Now. Conspicuously, neither the panel in its successive opinions
nor the government in its briefing to us ever even mentioned Ac-
cess Now, let alone featured it as a basis for considering and decid-
ing the good-faith issue sua sponte. Be that as it may, today’s ma-
jority now says that in Access Now this Court “identified five situ-
ations in which [an appellate court] may exercise [its] discretion to
consider a forfeited issue.” Id. at 20.
power to identify and apply the proper construction of governing law.’” Id.
(quoting Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99(1991)). The ma- jority ultimately—and quite correctly—abandons its own suggestion in the face of circuit precedent assigning to the government the burden of “‘demon- strating that the good faith exception applies’”—and thereby recognizing the good-faith issue’s separateness from Fourth Amendment and exclusion issues more generally.Id.
(quoting United States v. Morales,987 F.3d 966, 974
(2021)). See also United States v. Ladson,774 F.2d 436
, 438–41 (11th Cir. 1985)
(recognizing that the good-faith exception is waivable).
Chief Judge Pryor similarly, but more broadly, suggests that the gov-
ernment’s waiver (or forfeiture, or whatever) of the good-faith issue before
the panel is irrelevant now because “the government has properly briefed the
good-faith exception to the en banc court.” Pryor Concurring Op. at 2. To be
clear, though, his position would insulate from en banc review any significant
procedural failure that occurred at the panel stage, because the defaulting
party would (as the government has here) just take the full court’s hint and
clean up its mess in the en banc proceeding. In other words, simply by grant-
ing en banc rehearing and vacating a panel’s opinion, the full court could
whitewash the procedural failure and thereby render the very issue that
prompted en banc review—here, whether the government’s waiver precludes
sua sponte consideration and decision of the good-faith exception—unreview-
able. That can’t be right.
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 105 of 132
16-10128 NEWSOM and JORDAN, JJ., Dissenting 43
Well, sort of. To be sure, Access Now addressed forfei-
ture—and the circumstances under which an appellate court has
the authority to forgive it. But it dealt with an entirely different
kind of forfeiture that arises in an entirely different procedural pos-
ture. (Hence, presumably, that decision’s total absence from these
proceedings—until now.) In particular, in Access Now, we reiter-
ated several conditions under which an appellate court can con-
sider an issue that wasn’t raised in the district court and is then
squarely presented for the first time on appeal. See 385 F.3d at 1332(citing, e.g., Dean Witter Reynolds, Inc. v. Fernandez,741 F.2d 355
,
360–61 (11th Cir. 1984)). It should go without saying, of course,
that this case doesn’t involve that scenario. To the contrary, it in-
volves the exact opposite—an appellate court sua sponte taking up
an issue that was raised in the district court but then, conspicu-
ously, was not raised on appeal. The majority never explains why
it believes that the Access Now regime (with its attendant excep-
tions) should apply in the very different context in which this case
arises.
And in fact, the majority’s own analysis shows that there are
good reasons to think that it shouldn’t. The majority focuses ex-
clusively—and in just one short paragraph—on the fourth of the
five Access Now exceptions, which, it says, applies to permit sua
sponte consideration of a forfeited issue “where the proper resolu-
tion of the issue is beyond any doubt.” Maj. Op. at 30. But the
majority’s reasoning demonstrates the misfit between Access Now
and the situation that we confront here. It’s one thing for an
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44 NEWSOM and JORDAN, JJ., Dissenting 16-10128
appellate court to decide a legal question whose answer it thinks is
clear and that, though forfeited below, has been properly presented
on appeal, such that the parties have had an opportunity to address
it. It’s quite another for an appellate court to decide a legal ques-
tion sua sponte—no matter how clear it thinks the answer—that
no party has mentioned and without notice or briefing, as hap-
pened here. To be sure, the former scenario involves a certain dis-
tortion of the litigation process, in that the appellate court is acting,
in essence, as a court of first instance, considering a question that
wasn’t fully vetted in the district court. But there’s no real fairness
issue—because, at least as matters stand on appeal, everyone
knows exactly what issues are on the table and has had the chance
to be heard regarding them. But in a case like this one, the non-
forfeiting party has no reason to think that the forfeited issue is still
in the case—and, in fact, every reason to think that it’s not. Here,
for instance, Campbell had no basis to suspect that the good-faith
issue was still “live”—all he knew was that the government had
raised the issue before the district court but then, notably, dropped
it from its appellate brief.
Even if one were to grant the majority’s implicit premise
that the same rules that apply to district-court forfeitures should
govern abandonments on appeal, its analysis would encounter yet
another significant problem—namely, that it altogether ignores
our decision in United States v. Ladson, 774 F.2d 436(11th Cir. 1985). In that case, criminal defendants moved to suppress evi- dence obtained following a warrantless search of their home.Id.
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 107 of 132 16-10128 NEWSOM and JORDAN, JJ., Dissenting 45 at 438. The government opposed the defendants’ motion, but didn’t assert the good-faith exception, as initially articulated in United States v. Leon,468 U.S. 897
(1984), which had been decided a month before the suppression hearing. After the district court granted the defendants’ motion to suppress, the government sought reconsideration based on the good-faith exception. See Ladson,774 F.2d at 438
. When the district court refused to recon- sider, the government appealed and raised the good-faith exception in its brief to us.Id.
We refused to entertain the good-faith issue, explaining that the government’s excuse for not timely asserting the exception in the district court was “too weak” to justify our consideration of it on appeal—in short, because the government had abandoned its good-faith argument. Seeid. at 441
.
The case for considering the good-faith exception was, if an-
ything, stronger in Ladson than it is here. In Ladson, the govern-
ment had tried to raise the exception in the district court, and had
then explicitly presented it again on appeal. Here, the government
“conscious[ly]” chose not to argue the good-faith exception on ap-
peal even after addressing it in the district court at that court’s ex-
press direction. If we declined in Ladson to consider a good-faith
argument that had been presented in the district court (albeit late)
and then squarely presented on appeal, there is no reasoned basis
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 108 of 132
46 NEWSOM and JORDAN, JJ., Dissenting 16-10128
for raising, considering, and deciding the good-faith issue sua
sponte in this case.10
* * *
So to be clear, as its lone gateway for reaching the good-faith
issue—and again, even on the counterfactual assumption that it
was merely forfeited, rather than waived—the Court has settled on
the heretofore uncited Access Now decision and its fourth excep-
tion, applicable to issues whose proper resolution is “beyond any
doubt.” 385 F.3d at 1332(quotation marks omitted). But the ma- jority has wrenched Access Now and its beyond-any-doubt excep- tion out of their proper context—cases in which a party failed to raise an issue before the district court but then squarely presents it on appeal—and has done so (1) without any explanation whatso- ever and (2) in the teeth of preexisting circuit precedent. It’s a reach, to say the very least. 10 If the majority means to abrogate Ladson, it should say so. But to be clear, Ladson is hardly an outlier, so there may be additional owning up to do. We have repeatedly refused to excuse the government’s forfeiture of arguments predicated on exceptions to the exclusionary rule. See, e.g., United States v. Valerio,718 F.3d 1321
, 1325 n.6 (11th Cir. 2013) (holding that by failing to properly present it, the government abandoned its argument that the “taint of the Fourth Amendment violation ha[d] been sufficiently purged”); United States v. Thompson,710 F.2d 1500
, 1503–04 (11th Cir. 1983) (holding that by
failing to raise them properly, the government abandoned its arguments un-
der several exclusionary-rule exceptions, including the good-faith exception).
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 109 of 132
16-10128 NEWSOM and JORDAN, JJ., Dissenting 47
B
In any event, whatever Access Now’s proper field of opera-
tion, it remains the settled law—acknowledged by the majority—
that, ultimately, an appellate court can raise, consider, and decide
a forfeited issue sua sponte only in “extraordinary” circumstances.
Maj. Op. at 17, 20, 21, 23, 25, 30, 33, 34, 35. Both the Supreme
Court and this Court have repeatedly so held. See, e.g., Sineneng-
Smith, 140 S. Ct. at 1581(“extraordinary circumstances”); Wood,566 U.S. at 471
(same); Circuitronix, LLC v. Kinwong Elec. (Hong Kong) Co.,993 F.3d 1299, 1308
(11th Cir. 2021) (“extraordinary cir- cumstances” (quoting Bryant v. Jones,575 F.3d 1281, 1308
(11th Cir. 2009)); Moore v. Pederson,806 F.3d 1036
, 1042 n.8 (11th Cir. 2015) (same); McGee v. Sentinel Offender Servs., LLC,719 F.3d 1236
, 1242 n.7 (11th Cir. 2013) (same); Opis Mgmt. Res., LLC v. Sec’y, Fla. Dep’t for Health Care Admin.,713 F.3d 1291
, 1297 n.7 (11th Cir. 2013) (same); Bryant,575 F.3d at 1308
(“extraordinary
circumstance”).
Although it recites the “extraordinary circumstances” stand-
ard, the majority never makes any meaningful effort to apply it.
Indeed, so far as we can tell, the majority never really applies any
standard at all. Instead, it says only that it finds it wise to consider
the good-faith issue sua sponte “[i]n light of” what it calls (1) the
exclusionary rule’s “policy underpinnings” and (2) “the specific cir-
cumstances of this case.” Maj. Op. at 31. In the discussion that
follows, we will address the majority’s stated justifications, explain
why they fail even on their own terms, unpack the extraordinary-
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48 NEWSOM and JORDAN, JJ., Dissenting 16-10128
circumstances standard that the Supreme Court has adopted to
govern sua sponte consideration of forfeited issues, and demon-
strate that this case doesn’t remotely meet that test.
1
In justifying its decision to raise, consider, and decide the
good-faith issue sua sponte, the majority relies principally on what
it calls the “policy underpinnings” of the exclusionary rule and sug-
gests—without coming right out and saying—that courts should
feel uniquely empowered to vindicate those “polic[ies],” even if it
means forging ahead in the face of a clear forfeiture. See Maj. Op.
at 31; see also id. at 16 (“policy reasons”), 33 (“policy considera-
tions”), 34 (“policy considerations”), 53 (“policy considerations”);
accord, e.g., Campbell, 970 F.3d at 1358 (“policy considerations”),
1359 (“policy considerations”).
The logic underlying the majority’s position is easily sum-
marized. First, the exclusionary rule, although commonly associ-
ated with the Fourth Amendment, is not a constitutionally man-
dated remedy but, rather, “‘a judicially created means of deterring
illegal searches and seizures.’” Maj. Op. at 31 (quoting Pa. Bd. of
Prob. & Parole v. Scott, 524 U.S. 357, 363(1998)). Second, the ex- clusionary rule should be applied only when its deterrent value out- weighs the “social costs” that it imposes, including “‘in many cases . . . suppress[ing] the truth and set[ting] the criminal loose in the community without punishment.’”Id.
at 32 (quoting Davis v. United States,564 U.S. 229, 237
(2011)). Third, when a police of- ficer doesn’t act culpably, but rather acts with an objectively USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 111 of 132 16-10128 NEWSOM and JORDAN, JJ., Dissenting 49 reasonable good-faith belief that his conduct is lawful—either by virtue of existing Fourth Amendment precedent or otherwise—the exclusionary rule’s deterrent value is quite low.Id.
at 31–32. From those three premises, the majority draws the conclusion that “the exclusionary rule simply cannot ‘pay its way’”—and thus shouldn’t be applied—where, as here, the government fails to properly assert the good-faith exception in court.Id.
at 32 (quoting Leon,468 U.S. at 907
n.6). The reason, the majority says, is that the “focus of the
exclusionary rule is solely on deterring police misconduct,” and
there would be “little sense in excluding evidence” where it was
the government’s lawyers—not the officers themselves—who
made a “mistake[].” Id. at 33.
There are two key problems. First, and most obviously—
and briefly to resist the majority’s counterfactual—this simply isn’t
a case in which the government’s lawyers made a “mistake[].” By
contrast, as its lawyer conceded at oral argument, the government
made a “conscious” decision—having argued the good-faith issue
to the district court—to abandon it on appeal. That fact matters,
of course, because it fatally undermines the majority primary justi-
fication for sua sponte consideration and decision of the good-faith
issue. Where, as here, the government deliberately chooses not to
press an available good-faith argument, then it must bear the re-
sponsibility for the “social costs” attendant to that choice—includ-
ing “set[ting] the criminal loose in the community without punish-
ment.” Id. at 32 (quoting Davis, 564 U.S. at 237). To put it bluntly,
the government—as represented by politically accountable
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 112 of 132
50 NEWSOM and JORDAN, JJ., Dissenting 16-10128
executive-branch officials—should have thought about societal
costs before it decided to relinquish its good-faith argument.
Second, although the majority purports to hold only, and
narrowly, that sua sponte consideration and decision of the good-
faith issue is proper “in this case,” id. at 3, 17, 34, there is nothing
in its opinion that really engages—let alone limits its application
to—the particulars of this dispute. Quite the contrary, the majority
says that even “[s]tanding alone,” the “policy considerations under-
lying the exclusionary rule”—which, by definition, exist in every
case in which that rule is implicated—“may well be sufficient to
justify” a court’s decision to “exercise[e its] discretion to excuse the
Government’s forfeiture” of the good-faith issue. Id. at 33. So we
should be clear: The majority opinion strongly hints at what is, in
effect, a per se rule authorizing (and perhaps even requiring?) ap-
pellate panels in this circuit to ignore a failure by a governmental
entity to argue the good-faith exception and to decide that issue sua
sponte. It’s a bold stroke. 11
Perhaps sensing an overreach, the majority falls back on a
handful of “case specific reasons” for why it “exercise[s its]
11And to be even clearer, the majority’s logic, and thus its authorization—or
perhaps injunction—presumably applies not only where, as here, the govern-
ment is the appellee defending a conviction, but also where it is the appellant
challenging a district court’s decision to suppress. The majority’s you-can’t-
deter-officers-where-the-government’s-lawyer-blundered rationale, see Maj.
Op. at 31–33, applies equally in both instances.
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 113 of 132
16-10128 NEWSOM and JORDAN, JJ., Dissenting 51
discretion to” sua sponte consider the good-faith exception. Maj.
Op. at 33. With respect, none holds water.
The majority first invokes the well-established principle that
an appellate court “ha[s] ‘discretion to affirm on any ground sup-
ported by the law and the record that will not expand the relief
granted below.’” Id. at 34 (quoting Upper Skagit Indian Tribe v.
Lundgren, 138 S. Ct. 1649, 1654(2018)). To be sure, that principle exists, and to be sure, it is longstanding. Overwhelmingly, though, the rule applies not where—as here—an appellate court seeks out (i.e., “sall[ies] forth” for, Sineneng-Smith, 140 S. Ct. at 1579) an al- ternative basis for affirmance, but rather where the party that pre- vailed in the district court presents an alternative ground and urges the appellate court to adopt it. Even in that circumstance, the ap- pellate court may well decline the invitation to affirm because the party defending the lower court’s judgment failed to adequately present its alternative theory—as, in fact, the Supreme Court did in the very case that the majority cites for the rule. See Upper Skagit,138 S. Ct. at 1654
.
And indeed, we have (to this point) consistently enforced
forfeiture rules against appellees who fail to properly present alter-
native grounds for affirmance. We recently reiterated, for instance,
that “[a]lthough an appellee may urge us to affirm on any basis sup-
ported by the record, it still abandons any position that it fails to list
or otherwise state . . . as an issue on appeal.” Young v. Grand Can-
yon Univ., Inc., 980 F.3d 814, 821 n.4 (11th Cir. 2020) (cleaned up). Eleventh Circuit decisions to that effect are legion. See, e.g., Cote USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 114 of 132 52 NEWSOM and JORDAN, JJ., Dissenting 16-10128 v. Philip Morris USA, Inc.,985 F.3d 840, 846
(11th Cir. 2021) (ruling that the appellee abandoned an alternative ground for affirmance by “rais[ing] it only in the Introduction of her brief”); Reaves v. Sec’y, Fla. Dep’t of Corr.,872 F.3d 1137
, 1149 n.4 (11th Cir. 2017) (concluding that the appellee (a habeas petitioner) abandoned an argument by failing to raise it in his brief as an alternative ground for affirmance); La Grasta v. First Union Sec., Inc.,358 F.3d 840
, 847 n.4 (11th Cir. 2004) (declining to consider an argument because the appellee “fail[ed] to discuss it in its answer brief”); Beckwith v. City of Daytona Beach Shores,58 F.3d 1554
, 1564 n.16 (11th Cir. 1995) (observing that the “[a]ppellees’ failure to brief this issue abandons it for the purposes of this appeal”); Johnson v. Wain- wright,806 F.2d 1479
, 1481 n.2 (11th Cir. 1986) (concluding that the appellee (a state in a habeas case) abandoned an exhaustion de- fense by not raising it on appeal); Pennington v. Spears,779 F.2d 1505, 1506
(11th Cir. 1986) (same). 12
And to reiterate what we have said before, there are good
reasons for requiring appellees (like appellants) to present argu-
ments in support of their positions. Judge Carnes’s explanation in
Hamilton, already noted, bears repeating:
The requirement that issues be raised in a party’s brief
on appeal promotes careful and correct decision
12None of these decisions, or the rule they applied, are anywhere to be found
in the majority opinion. If the majority means to have overruled them, it has
done so sub silentio, without acknowledgment or explanation, and without
establishing any meaningful limiting principles.
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 115 of 132
16-10128 NEWSOM and JORDAN, JJ., Dissenting 53
making. It ensures that the opposing party has an op-
portunity to reflect upon and respond in writing to
the arguments that his adversary is raising. And it
gives the appellate court the benefit of written argu-
ments and provides the court and the parties with an
opportunity to prepare for oral argument with the op-
posing positions and arguments in mind. It is not too
much to ask of an appellant or an appellee.
680 F.3d at 1319. By enforcing this raise-it-or-lose-it requirement,
or at least by applying it rigorously, we ensure that courts don’t
“act as a [party]’s lawyer and construct the party’s theory of liability
from facts never alleged, alluded to, or mentioned during the liti-
gation.” Fils v. City of Aventura, 647 F.3d 1272, 1285(11th Cir. 2011); see also Tom v. Heckler,779 F.2d 1250, 1260
(7th Cir. 1985) (Posner, J., dissenting) (“[T]he adversarial system is the system we have, and ad hoc modifications which cast an appellate judge . . . in the role of juge d’instruction are unlikely to improve the sys- tem . . . .”). 13 13 Although, for present purposes, we are indulging the majority’s premise that the government merely forfeited, rather than waived, the good-faith issue, we note that the law seems to be settled that the affirm-on-any-basis principle has no application to cases involving intentional waiver. See TD Bank N.A. v. Hill,928 F.3d 259
, 276 n.9 (3d Cir. 2019) (“[W]e may affirm on any ground supported by the record as long as the appellee did not waive—as opposed to forfeit—the issue.”); LaSalle Nat’l Bank v. Gen. Mills Rest. Corp.,854 F.2d 1050, 1052
(7th Cir. 1988) (“[W]e are free to affirm on any ground that is sup-
ported by the record and has not been waived by the appellee.”).
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 116 of 132
54 NEWSOM and JORDAN, JJ., Dissenting 16-10128
As a second “case specific reason[]” for engaging in sua
sponte decisionmaking, the majority (echoing the panel’s revised
opinion, see 970 F.3d at 1359) emphasizes that because the perti-
nent facts regarding McCannon’s stop of Campbell are undisputed,
“the question of whether the good-faith exception applies has be-
come a pure question of law.” Maj. Op. at 33, 34. But that’s a
bootstrap. Even on the majority’s own statement of the governing
legal principles, in order “[t]o consider an issue abandoned on ap-
peal . . . we must first find that one of our forfeiture exceptions
applies and then decide whether the issue is important enough for
us to exercise our discretion and excuse the forfeiture”—i.e.,
whether the requisite “extraordinary circumstances” exist. Id. at
24–25. And to be clear, whether or not a question is purely legal
has nothing to do with the ultimate question whether extraordi-
nary circumstances warrant an exercise of the court’s discretion.
Rather, it is relevant—if at all—only to the threshold determination
whether the court has the power to consider the forfeited issue in
the first place.
In Access Now—on which, as already explained, the major-
ity relies for its fourth, “beyond any doubt” exception—we noted
that an appellate court may, in appropriate circumstances, consider
“a pure question of law” that a party failed to properly preserve in
district court. 385 F.3d at 1332 (quotation marks omitted). Tell-
ingly, we think, in casting about for a “forfeiture exception[]” that
might empower it to consider the good-faith issue sua sponte here,
the majority makes no effort to rely on Access Now’s pure-
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 117 of 132
16-10128 NEWSOM and JORDAN, JJ., Dissenting 55
question-of-law category. And for good reasons. First, notwith-
standing the majority’s assertion, it’s not at all clear that the good-
faith exception’s application to a given set of facts presents a purely
legal question. See, e.g., United States v. Riedesel, 987 F.2d 1383,
1391(8th Cir. 1993) (holding that the applicability of the good-faith exception presents “a mixed question of law and fact”); United States v. Brown,951 F.2d 999, 1004
(9th Cir. 1991) (same). Second, and separately, Access Now authorizes appellate review of a for- feited legal issue only where the refusal to consider it would “result in a miscarriage of justice.” 385 F.3d at 1332 (quotation marks omitted). Needless to say, the United States won’t suffer a “mis- carriage of justice” if a single criminal defendant succeeds in having evidence excluded for what all now agree was a violation of his Fourth Amendment rights. 14 That fact not only disqualifies the 14To be clear, we have expressly rejected the suggestion that we must “enter- tain all issues first raised on appeal [that] are outcome determinative,” as such an “approach would swallow our general rule of waiver, further impeding the efficient administration of justice.” First Ala. Bank of Montgomery, N.A. v. First State Ins. Co.,899 F.2d 1045
, 1061 n.8 (11th Cir. 1990). There is, in short,
no all-purpose “ends justify the means” forfeiture exception.
Our decision in Burch v. P.J. Cheese, Inc., 861 F.3d 1338(11th Cir 2017), illustrates the miscarriage-of-justice criterion’s application—and its lim- itations. In that case, a former employee argued for the first time on appeal that the district court had erred by compelling arbitration of his claims against his one-time employer four years into the litigation. Seeid. at 1352
. We de- clined to consider the argument, holding that because the former employee had “ample opportunity” to present the arbitrability issue to the district court, he would suffer no “miscarriage of justice” if we declined to address it.Id.
Like the employee in P.J. Cheese, the government here knew about its good-
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 118 of 132
56 NEWSOM and JORDAN, JJ., Dissenting 16-10128
good-faith issue in this case for Access Now treatment—as the ma-
jority seems to recognize, by declining to invoke that decision’s
pure-question-of-law criterion—but also undermines any serious
contention that “extraordinary circumstances” warrant sua sponte
decisionmaking here.
To be clear, having properly sworn off any consideration of
the good-faith issue’s (allegedly) “purely legal” status in making the
threshold determination whether any “forfeiture exception” au-
thorizes sua sponte decisionmaking, the majority cannot then
smuggle it back into the calculus as part of the back-end extraordi-
nary-circumstances determination. Maj. Op. at 31. And in any
event, even if good faith were a “pure question of law,” such that
it might readily lend itself to decision on appeal, id. at 34, that
would say nothing about whether the requisite extraordinary cir-
cumstances exist.
Finally, the majority says that “[e]xercising [its] discretion”
to consider and decide the good-faith issue sua sponte is “appropri-
ate” because “even though neither he nor the Government directly
addressed the issue,” Campbell’s arguments to the panel “logically
implicate[d]” McCannon’s good faith. Id. at 34–35. The majority’s
position is difficult to discern. As the majority itself ultimately
acknowledges, the government “‘bears the burden of
faith argument—having raised it in the district court—and had “ample oppor-
tunity” to present it on appeal. So, also like the employee, the government is
simply a victim of its own litigation choices.
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 119 of 132
16-10128 NEWSOM and JORDAN, JJ., Dissenting 57
demonstrating that the good faith exception applies.’” Id. at 16 n.5
(quoting United States v. Morales, 987 F.3d 966, 974(11th Cir.), cert. denied142 S. Ct. 500
(2021)). 15 What that means, of course, is (1) that the government—alone—had the “duty or responsibility” to demonstrate the exception’s applicability, Burden, Black’s Law Dictionary (11th ed. 2019), and (2) that when the government failed to do so, it lost that issue, see United States v. Mancilla-Ibarra,947 F.3d 1343, 1352
(11th Cir. 2020). As Judge Silberman pointedly asked in an analogous situation, “[h]ow can the government dis- charge its burden when it fails to mention the issue at all?” Pryce, 938 F.2d at 1354 (Silberman, J., dissenting in part). Simple: It can’t. 15Accord, e.g., United States v. Bershchansky,788 F.3d 102, 113
(2d Cir. 2015) (“The burden is on the government to demonstrate the objective reasonable- ness of the officers’ good faith reliance on an invalidated warrant.” (quotation marks omitted)); United States v. Wurie,728 F.3d 1, 13
(1st Cir. 2013) (“The government bears the ‘heavy burden’ of proving that the good-faith exception applies . . . .”); United States v. Ellis,330 F.3d 677, 679
(5th Cir. 2003) (“It is [the defendant’s] burden to prove a Fourth Amendment violation, but once he does so, the burden shifts to the government to demonstrate why evidence obtained in an illegal search or seizure should not be excluded.”); United States v. Corral-Corral,899 F.2d 927, 932
(10th Cir. 1990) (“[T]he government, not the defendant, bears the burden of proving that its agents’ reliance upon the warrant was objectively reasonable.” (quotation marks omitted)); United States v. Michaelian,803 F.2d 1042, 1048
(9th Cir. 1986) (holding that “[t]he
government, not the defendant, bears the burden of proving” the good-faith
exception’s applicability); see also, e.g., LaFave et al., Criminal Procedure §
10.3(b) (noting that the “burden is on the prosecution” to establish the good-
faith exception’s applicability).
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 120 of 132
58 NEWSOM and JORDAN, JJ., Dissenting 16-10128
Accordingly, the majority’s suggestion to the contrary not-
withstanding, Campbell had no obligation—none—to “address[]
the issue” of McCannon’s good faith, either “directly” or otherwise.
Contra Maj. Op. at 35. To the contrary, as already explained, when
the government, having argued good faith in the district court,
opted not to renew its good-faith argument on appeal, Campbell
had every reason—and every right—to conclude that the issue had
dropped out of the case. He was entitled to make his merits argu-
ments without worrying that he was somehow relieving the gov-
ernment of its burden to prove good faith or, worse, opening him-
self up to a surprise sua sponte ruling on appeal.
* * *
In sum, none of the majority’s scattershot justifications for
raising and deciding the good-faith issue sua sponte—whether
grounded in “policy considerations” or the idiosyncrasies of this
case—withstands careful scrutiny. And in any event, none stands
in for—let alone constitutes—the sort of “extraordinary circum-
stances” that Supreme Court precedent demands. We turn, in clos-
ing, to the exceptional-circumstances issue.
2
Not only has the majority failed to articulate or apply any
standard of its own, but it has also—even while mouthing the
words—completely failed to come to grips with the “extraordinary
circumstances” standard that the Supreme Court has prescribed for
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 121 of 132
16-10128 NEWSOM and JORDAN, JJ., Dissenting 59
forfeiture situations like the one that (on the majority’s premise)
this case presents. Let’s explore.
As already noted, the Court in Sineneng-Smith recently re-
affirmed the longstanding principle that, “as a general rule, our sys-
tem ‘is designed around the premise that parties represented by
competent counsel know what is best for them, and are responsible
for advancing the facts and argument[s] entitling them to relief.’”
140 S. Ct. at 1579 (cleaned up) (quoting Castro, 540 U.S. at 386
(Scalia, J., concurring in part and concurring in the judgment)).
Emphasizing the courts’ traditional role as “passive instruments of
government” and neutral arbiters in an adversarial system, the Su-
preme Court explained: “They ‘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 ques-
tions presented by the parties.’” Id. (alterations adopted) (quoting
Samuels, 808 F.2d at 1301 (Arnold, J., concurring in denial of re-
hearing en banc)).
Although the Sineneng-Smith Court acknowledged that
“[t]he party presentation principle is . . . not ironclad” and that an
appellate court may at times assume a “modest initiating role,” it
flatly rejected the Ninth Circuit’s sua sponte “takeover” of a crimi-
nal appeal, which it had decided on grounds not presented by the
parties. Id. at 1581. In particular, the court of appeals had largely
ignored the statutory and constitutional grounds on which a crim-
inal defendant had challenged her conviction, appointed several
amici curiae to brief a new issue, authorized the parties to file
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 122 of 132
60 NEWSOM and JORDAN, JJ., Dissenting 16-10128
supplemental responses, and ultimately adopted one of the amici’s
contentions as the basis for its holding. See id. at 1580. In revers-
ing, the Supreme Court held, in short, that “[n]o extraordinary cir-
cumstances” justified the Ninth Circuit’s non-“passive,” non-“mod-
est” assertion of judicial power. Id. at 1581. Accordingly, the Court
remanded for the case to be decided in a manner “bearing a fair
resemblance to the case shaped by the parties.” Id. at 1582.
While the majority here briefly nods in Sineneng-Smith’s di-
rection, see Maj. Op. at 18–19, it never really grapples with what
the Supreme Court said or did there. 16 But Sineneng-Smith isn’t so
16 For its part, in its brief to us the government suggested—without coming
right out and saying—that Sineneng-Smith should be limited to circumstances
in which an appellate court reverses, rather than affirms, a district court’s judg-
ment. See En Banc Br. of the United States at 24–26. In that respect, the ar-
gument seems to go, the situation that the Supreme Court confronted in
Sineneng-Smith was “worse” (our word) than what occurred here. The ma-
jority also appears to embrace some version of the reversal-affirmance distinc-
tion. See Maj. Op. at 33 (“We are loath to reverse the District Court simply
because the Government failed to adequately defend the Court’s ultimately
correct judgment.”). Two responses: First, nothing in the Supreme Court’s
opinion suggests that its decision turned on that distinction. To the contrary,
all of the Court’s language—about the virtues of the “adversarial system” and
“party presentation,” about appellate courts being “neutral,” “passive” and
“modest,” etc.—applies here, as well. Second, in one very important respect—
about which we’ll have more to say shortly—the manner in which the panel
here engaged the unargued issue was demonstrably worse than the Ninth Cir-
cuit’s “takeover” in Sineneng-Smith. At least the Ninth Circuit notified the
parties of the new issue that it wanted explored and gave them an opportunity
to be heard. Here, by contrast, the panel never said anything about the good-
faith exception—not in questions at oral argument, not in a request for
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 123 of 132
16-10128 NEWSOM and JORDAN, JJ., Dissenting 61
easily shrugged off, as it—and in particular its extraordinary-cir-
cumstances standard—follows closely from the Supreme Court’s
earlier decisions (already discussed) in Granberry, Day, and Wood,
which sharply circumscribed federal courts’ authority in habeas
cases to sua sponte consider alternative grounds for affirmance that
a state has failed to properly present. As relevant here, the Court
in Wood repeated its earlier holdings in Granberry and Day, re-
spectively, that federal courts “have discretion, in ‘exceptional
cases,’ to consider” arguments that the state has “‘inadverten[tly]
overlooked,’” Wood, 566 U.S. at 471 (emphasis added) (quoting
Granberry, 481 U.S. at 132, 134), and that they retain “authority to
consider a forfeited . . . defense when extraordinary circumstances
so warrant,” id. (emphasis added) (citing Day, 547 U.S. at 201). 17
supplemental briefing, not ever—until it issued its opinion. Thus, whereas the
Ninth Circuit in Sineneng-Smith merely raised an issue sua sponte, the panel
here went one step further and decided the good-faith issue sua sponte—and
did so without any notice to the parties whatsoever.
17 Cf. also, e.g., 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 273(2009) (“[T]his Court will affirm on grounds that have not been raised below only in excep- tional cases.” (cleaned up)); Granfinanciera, S.A. v. Nordberg,492 U.S. 33, 39
(1989) (“Although we could consider grounds supporting the judgment differ- ent from those on which the Court of Appeals rested its decision, where the ground presented here has not been raised below we exercise this authority only in exceptional cases.” (cleaned up)); Heckler v. Campbell,461 U.S. 458
, 468 n.12 (1983) (acknowledging the Court’s authority to “consider grounds supporting [respondent’s] judgment different from those on which the Court of Appeals rested its decision,” but opting not to exercise that authority be- cause the case before it was not “exceptional”); Youakim v. Miller,425 U.S. 231, 234
(1976) (per curiam) (“It is only in exceptional cases coming here from
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62 NEWSOM and JORDAN, JJ., Dissenting 16-10128
The majority’s refusal to meaningfully engage Sineneng-
Smith is regrettable but, in a way, understandable. As explained
below, the case for allowing sua sponte consideration and decision
of the government’s good-faith argument here is spectacularly
weak, and it fails any appropriately stringent standard. Put simply,
no “extraordinary”—i.e., “exceptional,” “unusual,” or “singu-
lar” 18—circumstances justify the Court’s decision of Campbell’s ap-
peal on a ground that the government failed (or refused) to raise
before the panel. Quite the contrary, in fact.
a
Consider first the party that the Court’s sua sponte deci-
sionmaking aids—the United States of America. The United States,
which is represented in court by the U.S. Department of Justice, is
the quintessential sophisticated, repeat-player litigant. Here’s what
the Supreme Court said about the United States, vis-à-vis the party-
presentation principle, in a case that asked whether a court of ap-
peals could sua sponte increase an appealing defendant’s sentence
even absent a cross-appeal by the government arguing that the sen-
tence was too low: “Counsel almost always know a great deal
more about their cases than we do, and this must be particularly
true of counsel for the United States, the richest, most powerful,
the federal courts that questions not pressed or passed upon below are re-
viewed.” (quotation marks omitted)); Duignan v. United States, 274 U.S. 195,
200(1927) (same). 18 Extraordinary, Oxford English Dictionary (online ed.). USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 125 of 132 16-10128 NEWSOM and JORDAN, JJ., Dissenting 63 and best represented litigant to appear before us.” Greenlaw v. United States,554 U.S. 237, 244
(2008) (quoting Samuels, 808 F.2d
at 1301 (Arnold, J., concurring in denial of rehearing en banc) (em-
phasis added)).
As already explained, one of the issue-creation advocates’
chief justifications for allowing courts to consider and decide issues
sua sponte is to “ameliorate the imbalances” that they contend can
occur “[w]hen the resources and abilities of opposing parties are
lopsided” and which, they say, can “undermine the adversarial sys-
tem[’s]” goal of “produc[ing] accurate results.” Frost, Limits of Ad-
vocacy, at 500–01. Here, that justification is 180 degrees off-point.
With all due respect to Campbell’s very capable public defenders—
who have acquitted themselves well here—no one would contend
that their “resources and abilities” so far outstrip DOJ’s that the
government needed an assist from this Court.
Intervening to aid the government in the course of a crimi-
nal prosecution also implicates separation-of-powers concerns—ar-
guably in two respects. As Judge Silberman has explained, if “the
government refuses to argue” an alternative basis for affirming a
criminal conviction on appeal—even, he said, where its failure to
do so is “inexplicable” and results from an “obvious mistake”—a
court considering the unargued issue sua sponte both (1) puts “the
judiciary’s neutrality at issue” and (2) risks “encroaching into the
executive branch’s prosecutorial prerogatives.” Pryce, 938 F.2d at
1352–54 (Silberman, J., dissenting in part). Although “[t]he core of
prosecutorial discretion []—its essence—is the decision whether or
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 126 of 132
64 NEWSOM and JORDAN, JJ., Dissenting 16-10128
not to charge an individual with a criminal offense in the first
place,” the term also comprises, more generally, “the soup-to-nuts
entirety of ‘[a] prosecutor’s power to choose from the options
available in a criminal case.’” In re Wild, 994 F.3d 1244, 1260(11th Cir. 2021) (en banc) (quoting Prosecutorial Discretion, Black’s Law Dictionary (10th ed. 2014)), petition for cert. filed (U.S. Aug. 31, 2021) (No. 21-351). And while those “options” most obviously in- clude, for instance, decisions about plea bargaining and sentencing, seeid.,
the concept of prosecutorial discretion is clearly broad enough to cover the appellate phase of a criminal case. Cf. Green- law,554 U.S. at 246
(noting, and bracketing, the Solicitor General’s
contention that the same sort of “authority and discretion” that un-
derlie charging decisions “are lodged in the Executive Branch with
respect to the pursuit of issues on appeal”).
b
Next, consider the nature of the issue that the Court here
opted to consider and decide notwithstanding the government’s
non-argument. In at least two respects, the good-faith question is
a uniquely poor candidate for sua sponte decisionmaking.
The first, we have already covered: The “government bears
the burden of demonstrating that the good faith exception applies.”
Morales, 987 F.3d at 974; see also supra at 56–57. Surely that must
mean, at the very least, that it has some obligation to make an af-
firmative case for its application. See Pryce, 938 F.2d at 1354 (Sil-
berman, J., dissenting in part).
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 127 of 132
16-10128 NEWSOM and JORDAN, JJ., Dissenting 65
Second, recall that one of the key factors that issue-creation
advocates cite to justify sua sponte decisionmaking is the need to
protect courts’ ability to make accurate pronouncements of law
that will establish “precedent that binds future litigants.” Frost,
Limits of Advocacy, at 453. Because of that feature of the “com-
mon law system,” they insist, “courts cannot cede to the parties
control over legal analysis.” Id. But that concern is at its lowest
conceivable ebb in a case like this, in which the application of the
good-faith exception is utterly fact-bound: Did this officer, in these
circumstances, reasonably rely on a particular (and since-abro-
gated) case? Needless to say, this Court’s answer to that question
is—in the majority’s own words—inherently “case specific,” Maj.
Op. at 33, and, for better or worse, won’t clarify the law (or bind
any future litigants) going forward.
c
Finally, consider the process by which the good-faith issue
was raised, considered, and decided in this case. Again, two things
stand out, both of which undermine the majority’s position. First,
the parties addressed the good-faith issue in the district court—in-
deed, they did so at that court’s express direction. Unsurprisingly,
Campbell argued (1) that in conducting the traffic stop McCannon
violated the Fourth Amendment and (2) that “the good faith excep-
tion . . . does not apply in this case.” Def.’s Second Supp. Mot. to
Suppress at 1. For its part, and equally unsurprisingly—and more
to the point for present purposes—the government argued (1) that
McCannon’s stop “did not violate Campbell’s Fourth Amendment
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 128 of 132
66 NEWSOM and JORDAN, JJ., Dissenting 16-10128
rights” and (2) that, in any event, “the Court should apply the good-
faith exception.” Gov’t’s Supp. Opp. to Def.’s Mot. to Suppress at
6; see also id. at 10–12 (elaborating on its position that the good-
faith exception applied). As the majority explains, because the dis-
trict court concluded—erroneously, as it turns out—that McCan-
non’s seizure didn’t violate the Fourth Amendment, it had no rea-
son to decide “whether—as the Government argued in its supple-
mental briefing—the good-faith exception to the exclusionary rule
applied.” Maj. Op. at 14.
The rest, of course, is history: The panel held that, in fact,
McCannon’s conduct did violate Campbell’s Fourth Amendment
rights but—despite the government’s failure (refusal) to renew its
good-faith argument—that the good-faith exception to the exclu-
sionary rule applied. See Campbell, 912 F.3d at 1355–56, as
amended, 970 F.3d at 1356–58. Echoing the panel’s revised opin-
ion, see 970 F.3d at 1360, the majority here seems to count it as a
factor in favor of deciding good faith sua sponte that “the parties
both fully briefed the good-faith exception before the District
Court.” Maj. Op. at 25 n.10. To the contrary, the fact that the
government argued the good-faith exception in the district court
and then, in response to Campbell’s opening brief in this Court,
opted not to, makes deciding the issue sua sponte more unreason-
able, not less. Surely, given the case’s history in the district court,
Campbell reasonably deduced from the government’s appellate
brief, which included nary a word about the good-faith exception,
that the government had decided—for whatever reason—to leave
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 129 of 132
16-10128 NEWSOM and JORDAN, JJ., Dissenting 67
that issue aside and focus exclusively on the merits of the Fourth
Amendment question. So, not surprisingly, when he filed his reply
brief before the panel, Campbell didn’t address good faith either.
Then, out of the blue, and without warning, the panel decided the
case against him on that very ground. It must have been quite the
shock.
Which leads to a second process-based problem. Not only
did the panel decide the good-faith issue in the conspicuous ab-
sence of any written or oral argument from the government, but it
did so without any notice to the parties whatsoever. No good-
faith-related questions at oral argument, no request for supple-
mental briefing, no nothing. Contrast what the Supreme Court
said in Day about the narrow circumstances in which a federal
court may sua sponte consider and decide a case-dispositive issue.
To repeat briefly, the Court emphasized—and again, even in the
habeas context—that it would be “an abuse of discretion to over-
ride a State’s deliberate waiver” of a potentially winning argument.
547 U.S. at 202. More importantly for present purposes—while we
are assuming, counterfactually, that all the government did here
was inadvertently forfeit its good-faith argument—the Court said
this: “Of course, before acting on its own initiative” to decide a
forfeited issue, “a court must accord the parties fair notice and an
opportunity to present their positions.” Id. at 210 (emphasis
added). That injunction—and the fairness considerations that it
embodies—was not obeyed here.
* * *
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68 NEWSOM and JORDAN, JJ., Dissenting 16-10128
For all of these reasons, and even setting aside what is to us
the obvious fact that the government here deliberately waived—
rather than inadvertently forfeited—its good-faith argument, there
simply was (and remains) no strong case for raising, considering,
and deciding that issue sua sponte. In nonetheless bulling ahead to
do so—for vaguely defined “policy” and “case-specific” reasons—
the Court has impermissibly exercised whatever discretion it might
have by acting in the absence of anything approaching “extraordi-
nary circumstances.”19
V
There is a certain irony in the fact that we are here debating
the propriety of a court’s sua sponte invocation and application of
the good-faith exception to the exclusionary rule in a Fourth
Amendment case. The irony results from the fact that one of the
19 Before we conclude, a final response to Chief Judge Pryor’s concurrence.
The Chief highlights the facts attendant to Campbell’s stop and detention—
that McCannon found incriminating evidence in Campbell’s car and inferred
on the basis of that evidence that Campbell might be an armed robber, that
Campbell had a prior armed-robbery conviction, etc.—and reassures us that
“the result of this appeal is just” inasmuch as “[a] criminal will receive the pun-
ishment that the district court decided he deserves” without intervention by
this Court. Pryor Concurring Op. at 1, 5–6. Two problems: First, let us not
forget that “the district court decided,” id. at 1, Campbell’s fate based on what
all now agree was an error of law—namely, that McCannon’s stop comported
with the Fourth Amendment. See supra at 3. Second, and in any event, our
job is to apply the law, not to do “just[ice],” and preserving one conviction
isn’t worth distorting the adversarial process beyond recognition. Pryor Con-
curring Op. at 1.
USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 131 of 132
16-10128 NEWSOM and JORDAN, JJ., Dissenting 69
most notable exclusionary-rule decisions in Supreme Court his-
tory, Mapp v. Ohio, 367 U.S. 643(1961), likewise resulted from an exercise of sua sponte decisionmaking. There, the Court overruled its earlier decision in Wolf v. Colorado,338 U.S. 25
(1949), and ex-
tended the exclusionary rule to the states—even though no party
had asked it to do so.
To be sure, the consequences of today’s decision for Fourth
Amendment law pale in comparison to Mapp’s. Mapp revolution-
ized constitutional criminal procedure as we know it. In stark con-
trast, for Fourth Amendment purposes, our decision in this case—
applying the good-faith exception to permit the admission of evi-
dence found in a roadside search of a single individual’s car on the
ground that the responding officers reasonably relied on since-ab-
rogated caselaw—is, for all intents and purposes, a one-off unicorn.
But from an appellate-procedure standpoint, the decision in this
case shares important similarities with Mapp—most notably the
fact that in both cases, appellate courts sidestepped the usual rules
of adversarial procedure to consider and decide issues that no party
had put before them.
In dissenting from the Supreme Court’s decision in Mapp,
Justice Harlan (joined by Justices Frankfurter and Whittaker) ob-
jected that the exclusionary-rule issue was not “the principal issue
which was decided by [the lower court], which was tendered by
appellant’s Jurisdictional Statement, [or] which was briefed and ar-
gued in” the Supreme Court. 367 U.S. at 673(Harlan, J., dissent- ing). Indeed, he said, the Court had taken the liberty of extending USCA11 Case: 16-10128 Date Filed: 02/16/2022 Page: 132 of 132 70 NEWSOM and JORDAN, JJ., Dissenting 16-10128 the exclusionary rule to state prosecutions “in the context of a case where the question was briefed not at all and argued only ex- tremely tangentially.”Id. at 676
. “In th[at] posture of things,” Jus- tice Harlan thought it “fair to say” that the Court “ha[d] simply ‘reached out’” to decide the issue.Id. at 674
.
So too here, perhaps doubly so. First, even on the majority’s
own terms—even, that is, assuming that all the government did
here was “unwittingly” forfeit its good-faith-exception position—
there was no basis for the panel to raise, consider, and decide the
good-faith issue sua sponte and without notifying the parties or giv-
ing them any opportunity to address the issue. Second, and far
worse, it now seems clear—in the light of important concessions
during en banc proceedings—that the Court has overridden the
government’s deliberate waiver of its good-faith argument. By do-
ing so, the Court has not only violated ordinary principles of notice,
party presentation, and adversary procedure, but has also cast itself
in the role of advocate and, at least arguably, interfered with the
executive branch’s judgments about how best to frame its litigation
strategy and thus transgressed the separation of powers.
We cannot agree, and therefore respectfully dissent.
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