Appeal from the United States District Court for the Northern District of Ohio at Cleveland.
No. 1:19-cr-00786-2—James S. Gwin, District Judge.
Decided and Filed: February 16, 2022
Before: McKEAGUE, NALBANDIAN, and MURPHY, Circuit Judges.
_________________________
OPINION
_________________________
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. |