United States v. Dowdell

70 F.4th 134

UNITED STATES of America, Appellant v. Donte DOWDELL, a/k/a Pooh

No. 21-3251

United States Court of Appeals, Third Circuit

Argued November 16, 2022

Filed: June 2, 2023

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2-21-cr-00363-001), District Judge: Honorable John M. Vazquez

Philip R. Sellinger, Mark E. Coyne [ARGUED], Office of United States Attorney, 970 Broad Street, Room 700, Newark, NJ 07102, Counsel for Appellant

Richard Coughlin, Rahul K. Sharma [ARGUED], Office of Federal Public Defender, 1002 Broad Street, Newark, NJ 07102, Counsel for Appellee

Before: HARDIMAN, PORTER, and FISHER, Circuit Judges

OPINION OF THE COURT

HARDIMAN, Circuit Judge.

The United States appeals an order of the District Court granting Donte Dowdell's motion to suppress evidence. During the suppression hearing, the Court held the Government waived a potentially winning argument. The Government claims the Court abused its discretion in finding the argument waived and, alternatively, in not excusing the waiver. Unpersuaded by either argument, we will affirm.

I

A

This appeal arises out of a traffic stop in Franklin Township, New Jersey. On the evening of January 8, 2021, several members of the Somerset County Organized Crime and Narcotics Task Force were patrolling in unmarked cars in response to recent gang-related crimes and shootings. One of the officers, Detective Nicholas Gambino, recognized a white BMW he had seen earlier that evening parked in front of a known meeting place for the Bounty Hunter Bloods. Gambino followed the car, saw it turn without signaling, and radioed his supervisor, Sergeant William Brown, to pull the car over for a traffic violation.

Sergeant Brown, who was driving with two other officers, initiated the traffic stop by activating the lights and siren on his SUV. Gambino arrived at the scene and shined his flashlight by the left rear door of the car. Dowdell, whom Gambino knew from prior arrests to be a member of the Bounty Hunter Bloods, was sitting in the back seat.

After identifying Dowdell, Gambino opened the left rear car door. Gambino testified: "I knew [Dowdell] was the victim of a recent gang-involved shooting, so at that time I opened the door, [to] attempt to speak to him, have a conversation, maybe get any other information about that particular shooting which was an open investigation at that time." App. 105. Gambino also testified that it was common practice to open a car door to speak with a passenger. On cross-examination, Gambino added that approaching the rear door was a precautionary measure for officer safety.

After opening the door, Gambino saw a bulge in Dowdell's jacket at chest-level. Gambino immediately ordered Dowdell out of the car and patted him down. When Gambino discovered a fully loaded semi-automatic firearm with a bullet in the chamber, he arrested Dowdell.

B

The Government charged Dowdell with being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). Dowdell moved to suppress the gun and ammunition evidence. The District Court held an evidentiary hearing to determine whether there had been a traffic violation justifying the initial stop and whether Gambino had seen the bulge in Dowdell's jacket justifying the frisk. Following the evidentiary hearing, the Court asked for supplemental briefing. Dowdell then argued that Gambino violated his Fourth Amendment rights under Florida v. Jardines, 569 U.S. 1, 5, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013), by "physically intruding on" the car door to speak with Dowdell about his gang activity. App. 236-240.

The Government's supplemental brief in response did not mention Jardines. Instead, the Government focused on the traffic stop itself, arguing it was justified by a reasonable articulable suspicion that someone in the car was engaging in criminal activity under Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Government also contended that Gambino had reasonable suspicion a crime was being committed that justified opening the door to speak with Dowdell. In his supplemental reply brief, Dowdell insisted that the Government had waived any objection to his Jardines claim because the Government's argument that opening the door was reasonable under the totality of the circumstances was too generic.

C

The parties characterize the District Court's statements at the suppression hearing differently, so we review them in detail. At the beginning of the hearing, the Court asked the Government to confirm that it correctly understood the Government's argument regarding Gambino's justification for opening the car door:

The Court: My understanding is that the Government's position is that not only—that the opening of the door was appropriate and that's based on an argument pursuant to the Terry standard that Detective Gambino had a reasonable articulable suspicion in light of the totality of the circumstances. Correct?

A: That's absolutely correct, Your Honor, yes.

App. 10. The Court later credited Gambino's testimony that there had been a traffic violation. The Court also determined that once Gambino saw the bulge in Dowdell's jacket, which had happened only after Gambino opened the door, the frisk was justified.

Next, the Court turned to the constitutionality of opening the car door in the first place. Before announcing its decision, the Court said: "I want to make clear that the positions of the parties are dispositive to my decision." App. 27. The Court then ruled: "I disagree with the Government that the detective had a reasonable articulable suspicion to open the door at that time." App. 28. Gambino said he opened the door "because he wanted to talk" about an unrelated crime—the recent drive-by shooting at Dowdell's house—and Gambino's desire to investigate could not alone establish reasonable suspicion. App. 29. As the Court observed, no court has found that officers can frisk car passengers based solely on their gang membership and the fact that they are in a car that violates a traffic law.

After ruling that the evidence would be suppressed because the Government failed to establish that Gambino opened the door without violating Dowdell's Fourth Amendment rights, the Court suggested that the Government might have made an alternative argument:

I want to make clear for purposes of review that I do think the Government had an alternate analysis that was available to them, but it was not raised by the Government. It seems, to me, if the Government had raised the alternate analysis, the Government would have prevailed, but I do not think it would be fair to rule on an issue based on an argument not raised by the Government.

App. 32. The Court expanded on what it thought the alternative argument might be, explaining that two Supreme Court cases—Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam) and Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997)—could be extended to permit officers to order people out of a car during a valid traffic stop. Mimms established the bright-line rule that police may order the driver out of a car during a traffic stop. Mimms, 434 U.S. at 111 n.6, 98 S.Ct. 330. Wilson extended the Mimms rule to passengers. Wilson, 519 U.S. at 414-15, 117 S.Ct. 882. The Court analogized: "if the officer can order you out of the car, the officer can also open the door to the car . . . . At most I see that being a de minimis additional intrusion on the passengers' Fourth Amendment rights." App. 35.

The Court then re-emphasized that this alternative argument had never been made, so it was waived. In the Court's view, it would not "be fair to rule on an issue based on an argument not raised." App. 32. The Court ruled solely based on the argument the Government briefed and affirmed at the suppression hearing: "[U]ltimately, I will grant the motion to suppress because I do not find the Government's argument that there was a reasonable articulable suspicion to open the car door to be valid. On that ground I will grant the motion to suppress." App. 37.

After the Court ruled, the Government took exception. The Government insisted that because it had cited Mimms and Wilson in its supplemental brief, it had not waived the argument that those cases could be extended to include an officer opening a car door. The Court answered that this Wilson-extension argument had been waived because, although the Government cited the relevant cases, it did so only in support of its reasonable suspicion argument, and the brief failed even to mention their holdings. The Court explained: "that's why I clarified with [counsel] at the beginning: 'Is your argument that this is reasonable articulable suspicion?' And I made that clear on the record." App. 38. Further justifying its decision, the Court explained that Dowdell's counsel "didn't get the benefit of that argument so I could hear him reply." App. 40. The Court's order suppressing the evidence held the Government had not proven its legal theory (reasonable suspicion), but it did not mention waiver. The Government appealed.

II¹

The Fourth Amendment prohibits "unreasonable searches and seizures." The Supreme Court considers presumptively unreasonable any warrantless searches and seizures, with certain "specifically established and well-delineated exceptions." California v. Acevedo, 500 U.S. 565, 580, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991) (citations omitted). "Evidence obtained through unreasonable searches and seizures must be suppressed as 'fruit of the poisonous tree.' " United States v. Bey, 911 F.3d 139, 144 (3d Cir. 2018) (cleaned up).

When a defendant moves to suppress evidence, the Government—not the Court—must show that each warrantless act constituting a search or seizure was reasonable. United States v. Ritter, 416 F.3d 256, 261 (3d Cir. 2005). The act at issue here is Detective Gambino opening the car door, which the Government concedes was a...