United States v. Russell

• Citation: 26 F.4th 371
• Decision Date: 16 February 2022
• Docket Number: No. 20-3756,20-3756
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Denzell RUSSELL, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

26 F.4th 371

UNITED STATES of America, Plaintiff-Appellee,

v.Denzell RUSSELL, Defendant-Appellant.

No. 20-3756

United States Court of Appeals, Sixth Circuit.

Decided and Filed: February 16, 2022

ON BRIEF: Catherine Adinaro Shusky, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant. Laura McMullen Ford, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

Before: McKEAGUE, NALBANDIAN, and MURPHY, Circuit Judges

NALBANDIAN, Circuit Judge.

Denzell Russell was a passenger in a car that the East Cleveland Police stopped and searched. The police found two handguns, which resulted in a felon-in-possession charge for Russell. He argues that the search violated the Fourth Amendment. But to assert a Fourth Amendment claim, Russell must have "standing" to challenge the search. And normally a car passenger without a possessory interest in the car lacks such standing.

The government, though, failed to object to Russell's lack of standing before the district court and raised the argument for the first time on appeal. Fourth Amendment standing, unlike Article III standing, is not jurisdictional and so it can be forfeited or waived. And Russell contends that here the government forfeited or even waived the argument. But under our precedent, the government can raise a forfeited argument for the first time on appeal and prevail if it satisfies the plain-error inquiry under Fed. R. Crim. P. 52(b). Because the government only forfeited its standing claim and satisfies that plain-error test, we AFFIRM .

I.

This story began in East Cleveland shortly after a vigil being held for the victim of a gang-related shooting. Anticipating there might be retaliation in response to the shooting, the police were on "high alert" and sent out extra patrols near the vigil. Denzell Russell attended the vigil. And when he was ready to leave, he got into Akeem Farrow's car and sat in the passenger's seat while Farrow drove.

As they were patrolling the neighborhood, the police noticed Farrow's car "slow rolling." The officers saw the car driving slowly then suddenly speed up. Suspicious that the driver was trying to avoid police detection, the officers pulled the car over.

When they approached, the officers noticed an open bottle of tequila in the back seat. So they removed the men from the car. They frisked them, handcuffed them, and placed them in the police cruiser. Then they searched Farrow's car.

What did they find? Two loaded firearms and two bullet-proof vests. One firearm was under Farrow's seat, the other under Russell's seat. Russell and Farrow admitted that the firearms and vests were theirs.

Because of Russell's extensive criminal record, the government charged him with being a felon in possession of a firearm. Russell moved to suppress the contraband seized during the search. But the district court denied his motion. The court gave two reasons why the search was reasonable. It explained that the police had probable cause given the open container, and that they could conduct a protective search. Alternatively, the court held that even if the search was unreasonable, Russell still couldn't challenge it. This was because he lacked Fourth Amendment standing. The court raised standing sua sponte because the government failed to raise the argument.

Unable to suppress the evidence, Russell pled guilty. But he preserved his right to appeal, which he now exercises.

II.

We review the court's factual findings for clear error and its conclusions of law de novo. United States v. Bateman , 945 F.3d 997, 1004-05 (6th Cir. 2019). We consider the evidence "in the light most likely to support the district court's decision" and "affirm[ ] on appeal if the district court's conclusion can be justified for any reason." Id. at 1005 (quoting United States v. Moorehead , 912 F.3d 963, 966 (6th Cir. 2019) ).

III.

Because the Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," U.S. Const. amend. IV (emphasis added), Fourth Amendment rights are said to be "personal." Rakas v. Illinois , 439 U.S. 128, 133, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (citation omitted). So a defendant must show that "his own" rights were "infringed." Byrd v. United States , ––– U.S. ––––, 138 S. Ct. 1518, 1526, 200 L.Ed.2d 805 (2018) (quoting Rakas , 439 U.S. at 133, 99 S.Ct. 421 ). Courts use "standing" as a "shorthand" for this requirement. Id. at 1530. Here, the government didn't challenge Russell's Fourth Amendment standing before the district court. But this isn't fatal. The government may object to Fourth Amendment standing for the first time on appeal if it hasn't waived the argument. See United States v. Noble , 762 F.3d 509, 528 (6th Cir. 2014). And it can prevail if it meets the plain-error inquiry under Fed. R. Crim. P. 52(b). See id.

Accordingly, we proceed in two parts. We first decide if the government here waived the argument. We find that it didn't. So we ask our next question: Has the government satisfied the plain-error inquiry under Rule 52(b) ? We find that it has.¹

A.

Begin with waiver. Russell argues that the government waived any objection to his lack of Fourth Amendment standing by not raising it below. We disagree.

The terms "forfeiture" and "waiver" are sometimes used "rather loosely." Noble , 762 F.3d at 528. But the Supreme Court has made their distinction clear. A forfeiture is "the failure to make the timely assertion of a right" whereas a waiver is "the intentional relinquishment or abandonment of that right." United States v. Olano , 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (citation omitted). Thus, a party waives an argument only if it "expressly abandon[s]" an issue. United States v. Denkins , 367 F.3d 537, 542 (6th Cir. 2004). And if an argument is waived, we don't consider it. Id.

True, the government could waive its objection to Fourth Amendment standing. See Noble , 762 F.3d at 528. After all, Fourth Amendment standing is a merits question, not a jurisdictional one. See Rakas , 439 U.S. at 138-39, 99 S.Ct. 421.

But to waive the argument, the government must either (1) take some step to "expressly abandon" it or (2) fail to raise it in its first brief on appeal. See Noble , 762 F.3d at 528.

Indeed, we confronted a similar situation in Noble . There, like here, the government failed to raise its objection to Fourth Amendment standing before the district court. See 762 F.3d at 526-28. We held this was a forfeiture, not a waiver. Id. at 528. So we concluded that the government could raise the argument for the first time on appeal and prevail under the plain-error inquiry. Id. Yet, because the government had failed to raise the argument in its opening brief on appeal, we held that it had waived the argument. Id. So we never had the opportunity to review for plain error.

Here we pick up where Noble left off. The government's failure to raise the argument below was merely a forfeiture, not a waiver. See id. at 527. This is because the government took no steps to "expressly abandon" its objection. Denkins , 367 F.3d at 542. And, unlike in Noble , the government raised its objection to Russell's standing in its opening brief on appeal. So the government didn't waive its objection to Russell's Fourth Amendment standing.

Russell pushes back. As he sees it, when he moved to suppress evidence, the government was on notice that he was invoking standing. And not only did the government fail to object to standing, it also "agreed" that the issue before the court was narrow, dealing only with the reasonableness of the search. This, he argues, was an express waiver. But, we aren't convinced.

Russell conflates waiver with forfeiture. See Noble , 762 F.3d at 528. Even if the government was implicitly put on notice, it took no action to abandon its objection to Russell's standing. Instead, by focusing on only one issue, it merely failed to object. And failing to object is not a waiver, but a forfeiture. See United States v. Mabee , 765 F.3d 666, 671 (6th Cir. 2014). So there was no "intentional relinquishment." Noble , 762 F.3d at 528 (quoting Olano , 507 U.S. at 733, 113 S.Ct. 1770 ). Had the government, for example, conceded that Russell has Fourth Amendment standing, then it would have waived the argument.² See Mabee , 765 F.3d at 673 (finding waiver if there is "a plain, explicit concession"); cf. Noble , 762 F.3d at 527 (government filing letter conceding that it waived the standing issue on appeal).

Russell next turns to policy. He claims that if we allow the government to raise standing for the first time on appeal, we will deprive defendants of an opportunity to respond and would give the government "a second bite at the apple." Reply Br. at 7.

But we have already explained why these concerns are unavailing. See Noble , 762 F.3d at 528. True, the government gets a "second bite at the apple." Id. But standing is "an element" of a Fourth Amendment suppression claim anyway. Id. at 526. So the defendant bears the "burden" of showing he has standing. Id. And on appeal, the defendant "continues to bear the burden of showing that he has standing." Id. at 528 (citing United States v. Paopao , 469 F.3d 760, 764 (9th Cir. 2006) ). In other words, there is no worry that the defendant will be unable to respond because he has the burden of proving standing in the first place.

In sum, the government hasn't waived its objection to Russell's standing. And, since it properly raised standing in its first brief on appeal, it can prevail if it meets the plain-error hurdle under Rule 52(b). See Noble , 762 F.3d at 528.

B.

Turning to plain error, the government must show that the forfeited error was clear and affected its substantial rights. See Olano , 507 U.S. at 733-34, 113 S.Ct. 1770 ; United States v. Cavazos , 950 F.3d 329, 334 (6th Cir. 2020). But even if the government makes all these showings, we don't automatically remedy the error....