United States v. Campbell (11th Cir. February 2022), EN BANC

The Federal Docket

March 16, 2022

In an en banc opinion, the Eleventh Circuit held that the Government’s failure to raise the good faith exception to the exclusionary rule did not foreclose the Court of Appeals from affirming the district court’s denial of a motion to suppress on those grounds. The Court concluded that the government’s silence on the good faith exception in a direct appeal is a forfeiture, not a waiver, and thus an appellate panel can consider the issue sua sponte in extraordinary circumstances.

Here, the Court found that the good faith issue clearly applied and thus created an exemption for the government’s forfeiture of the issue. The Court further found that there were extraordinary circumstances justifying an exercise of the panel’s discretion to consider the forfeited issue, noting that suppression “is our last resort, not our first impulse.”

Concurring, Judge W. Pryor wrote to “clarify some fundamental principles” regarding en banc proceedings, waiver, and the good faith exception. Most notably, Pryor indicated a willingness to overrule the exclusionary rule, framing suppression as judicial intervention “on behalf of a criminal to exclude indisputably reliable evidence.” Pryor emphasized that the “result” of this appeal, affirming denial of suppression, was “just” because the defendant would be punished for his crimes “without an unjustified exercise of judicial power by this Court.”

The dissent was critical of the majority’s apparent expansion of judicial power, framing the question as: “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 would have held that the answer is “no” and criticized the majority opinion as effectively creating a “per se rule” that would require appellate panels to consider the good faith exception sua sponte in every appeal, a “bold stroke.”

On appeal from the Middle District of Georgia
En banc majority opinion by Tjoflat, joined by W. Pryor, Branch, Grant, Luck, Lagoa, and Brasher joined.
Concurrence by W. Pryor
Dissent by Newsom and Jordan, joined by Wilson, Rosenbaum, J. Pryor
Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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