In United States v. Campbell, Case No. 16-10128 (Feb. 16, 2022), the en banc Court–in an opinion authored by Judge Tjoflat–considered whether the good-faith exception to the exclusionary rule is a proper ground for affirming Mr. Campbell’s conviction despite the government’s failure to raise that alternative ground before the panel, and answered in the affirmative.  The en banc Court also concluded that the good-faith exception applied, and accordingly, affirmed the denial of Mr. Campbell’s motion to suppress.

The district court determined that officers had reasonable suspicion to stop Mr. Campbell’s car on account of his rapidly-blinking turn signal, and that officers did not unreasonably prolong the stop by asking Mr. Campbell twenty-five seconds worth of questions unrelated to the purpose of the stop.  Because the district court found the seizure reasonable, it did not address whether Mr. Campbell’s consent to search his car was tainted or whether–as the government argued in supplemental briefing before the district court–the good faith exception to the exclusionary rule applied.  On appeal, Mr. Campbell once again challenged his seizure, and a panel of the Court affirmed.  In affirming, however, the panel considered the good-faith exception, which, though fully briefed in the district court below, was not addressed by the government on appeal.  The Court then granted Mr. Campbell’s petition for rehearing en banc and asked the parties to focus on whether the Court may affirm based on the good-faith exception despite the government’s failure to brief the issue.

The en banc majority held that the Court may exercise its discretion to consider the good-faith exception despite the government’s failure to brief the exception to the panel.  That is, 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 the Access Now forfeiture exceptions applies.  The en banc majority treated the government’s failure to raise good faith on appeal as a forfeiture, and not a waiver.  The en banc majority did so in light of the government’s acknowledgement at oral argument that it was “conscious” of the good-faith exception when briefing to the panel.  In so holding, the en banc majority noted that classifying a failure to brief an issue as a waiver would unduly punish lawyers attempting to follow the Supreme Court’s advice on appellate briefing by removing even the possibility of addressing an important issue not briefed in an extraordinary case.  The en banc majority also noted that it was more appropriate to treat the failure to raise an issue in a brief as forfeiture, not waiver, and not to automatically assume waiver just because a party may have been aware of an issue but did not brief it.

In this case, the en banc majority found that the fourth exception to forfeiture–where the proper resolution of the issue is beyond any doubt–applied.  The en banc majority also found that the case presented an extraordinary circumstance to justify the Court’s exercise of its discretion to excuse the government’s forfeiture for a number of reasons, including because of the strong policy considerations underlying the exclusionary rule.  The en banc majority noted that “[s]uppression of evidence . . . is our last resort, not our first impulse,” and refused to exclude evidence based on government counsel’s mistake (which would do nothing to deter police misconduct).

Turning to the merits, the en banc majority held that Mr. Campbell’s rapidly-blinking turn signal created reasonable suspicion that a traffic violation had occurred; the Court’s holding in Griffin had been abrogated by the Supreme Court in Rodriguez, and, as such, officers’ questions about the contraband in the car unlawfully prolonged the stop; and officers relied in good faith on Griffin, which, at the time of Mr. Campbell’s arrest, was the Court’s last word on the issue of prolongation.

Judge William Pryor concurred, but wrote separately to “clarify some fundamental principles involving the en banc process, waiver, and the good-faith exception.”  He noted: “This appeal concerns when the Judicial Branch should intervene on behalf of a criminal to exclude indisputably reliable evidence. 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.”  He stressed that when rehearing a case en banc, the panel decision no longer exists, and the en banc court instead reviews the judgment of the district court.  As such, the majority correctly held 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 before the panel, and that the government has properly briefed the good-faith exception to the en banc court.

Judges Newsom, Jordan, Wilson, Rosenbaum, and Jill Pryor dissented.  They viewed this case as one about judicial power and its limits.  The question presented, in their eyes, was: “Can an appellate court affirm a criminal defendant’s conviction on a ground that, although argued to the district court, the government concedes it ‘conscious[ly]’ decided not to present on appeal?” The dissent’s answer, no, relying on the principle of party presentation and the “critical” distinction between waiver and forfeiture.  “The majority opinion strongly hints at what is, in effect, a per se rule authorizing (and perhaps even requiring?) appellate 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.”