NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0558n.06 No. 09-6242 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNITED STAT ES O F AMERICA, ) ) P laintif f/ Appellee, ) ) On App eal from the United v. ) States Distr ict Courtfor the ) Eastern Distr ict of Ke ntucky JUAN F RANCISCO LOP EZ ) ) Defendan t/Appellan t. )

Before: SUTTON and COOK, Cir cuit Judges; GREER, District Judge. * GREER, Distr ict Judge

. This is L opez’s second trip to this Court. On his prior trip, this Court reve rsed the district court’s denial of L opez’s mot i o n t o s uppress based on the intervening authority of Arizona v. Gant , 553 U.S. 332 (2009), and “re manded for further proce eding s consistent with this opinion.” United States v. Lopez , 567 F.3d 755 (6th Cir. 2009) ( Lopez I ). The defe ndant

now appea ls the district court’s denial of his motion to suppress on rema nd arguing that the United States waived its “g ood faith” arg ument by not raising it in the district court prior to the rema nd, that t he district court exceede d the scope of the rema nd, and that the “g ood faith” excepti o n h as n o application to this case. F inding no mer it in defenda nt’s arg uments, we a ffirm. I.

The Honor able J. Ronni e Gr eer , United States District J udg e for the Easter

n District of * Tenne ssee, sitting by

desig nation.On September 27, 2006, L opez was stopped by Kentucky State Trooper Tommy Cromer for

speeding in excess of 100 m i l es p er h o u r. L opez was eventually arr ested by Cromer and char g ed with rec kless driving

. After L opez was arr ested and secur ed in the backse at of Cromer’s patrol car , the passeng er are a of L opez’s car was sear ched. Under the driver’ s seat, Cromer found 73 g rams of

cra ck coca ine, a set of digital scale s, and a G lock .40 ca liber loaded handg un. L opez w as indicted in fede ral court for possession with intent to distribute coca ine in violation of 21 U.S.C. § 841(a) (1) and for car

rying a firea

rm in rela tion to a drug traff icking crime in violation of 18 U.S.C. § 924(c) (1). L opez challeng ed the sear ch in the district court, arg uing that his Four

th Amendment rig hts

wer e viol ated by the s ear ch of the passeng er c ompartment of his ca r whe n he wa s alre ady secur ed in the backse at of the patrol car . The dist rict court denied L opez’s motion to suppress, re ly ing on New Y ork v. Belton , 453 U.S. 4 5 4 (1981), which permitted the sear ch. L opez then pled g uilty , rese rving the rig ht to appea l the district court’s s u p p re s s ion ruling

. We reve rsed and rema nded beca use the Supreme Court, in Arizona v. Gant , had “since chang ed the law.” Lopez I , 657 F.3d at 757. On rema

nd , t h e district court held that the rema nd was a g ener al rema

nd which did not preve nt the court from addre ssing an argument by the g overnme nt, made for the first time on

rema nd, that the sear ch, even though it violated t h e Fo urth Amendment, was subject to a “g ood faith” exception to the exclusionary rule. The district court further held that the g overnme nt did not waive the argument by failing to raise it befor e rema nd in its response to L opez’s motion to suppress. The distric t court ag ain denied the motion to suppress, holding that “the office r conducting the sear ch of L opez’s car incident t o his arr est ac ted i n an objectively rea sonable and g ood faith m anner and in acc ordanc e with established pr ece dent.” [R. 94, Order at 1-2].

2II.

L opez first argues that the rema nd to the district court was a limit ed rema nd and that the district c ourt was “oblig ated to issue an order suppressing the evidenc e the de fenda nt reque sted to be suppre ssed.” We disag ree . Lopez I contained a g ener al re mand. A district court is limit ed by the scope of the rema nd under which it operates. United States

v. Moore , 131 F.3d 595, 598 (6th Cir. 1997). The differ ence betwee n a limit ed rema nd and a g ener al

rema nd is the prese nce of limit ing lang uag e. Id. A limit ed rema nd m u s t “explicitly outline the issues to be addre ssed by the district court and cre ate a narr ow fra mework within which the district court must operate,” while a g ener al rema nd g ives the district court “author ity to addre ss all matters

as long as rema ining consistent with the rema nd.” United States v. Campbell , 168 F.3d 263, 265 (6th Cir. 1999). The interpre tation of a rema nd is a leg al issue, which this Court revie ws de novo . United States v. O’D ell , 320 F.3d 674, 679 ( 6th Cir. 2003). Our prior rema

nd “for further

proce eding s consistent with this opinion,” Lopez I , 567 F.3d at 758, contains no limit ing languag e and is presumptively a g ener al one. Moore , 131 F.3d at 598. Nothing in our prior opinion obligated the district court, as argued by L opez, to g rant the motion to suppress and the district court acte d within the scope o f o u r m an d ate by considering the g overnme nt’s g ood faith ar g ument. III. Next, L opez arg

ues that the g overnme nt waived any argu m ent reg arding the g ood faith exception when it failed to initially raise the arg ument i n t h e d i s t ri ct court in response to L opez’s motion. “The law-of

-the-c ase doctrine bars challeng es to a decision made at a previous stag e of the
3litigation which could have been challeng ed in a prior appeal , b u t wer e not.” United States v.

Adesida , 129 F.3d 846, 850 (6th Cir. 1997); see also United States v. McKinley , 227 F.3d 716, 718- 1 9 (6 th Cir. 2000) (holding gover nment waived arg ument for firear m enhanc ement by not raising it during the first appe al). L opez relies primarily on our decision in United States v. Archibald , 589 F.3d 289 (6th Cir. 2009). I n Archibald , the g overnme nt a sked the cour t to uphold a protec tive swee p on g rounds not prese nted to the district court. We declined to do so, applying the well established rule that appellate courts “do not ordinarily consider issues that are not raised in the district court.” Id. at 295 (citation omitted). We further declined to rema nd for further proce eding s on the g overnme nt’s new theory beca use “[t] he fac ts on which the g overnme nt now relies to uphold the [protective swee p] wer e fully known to it at the time [of the suppression hear ing],

. . .” Id. at 296 (quoting Giordenello v. United States , 357 U.S. 480, 488 (1958)). We ag ree , howeve r, with the g overnme nt and the district court that the g overnme nt has not waived its g ood faith argument here beca use it was not ripe for revie w at the time the district court first decide d the motion to suppress. Gene rally , “whe re an issue was ripe for revie w at the time of

an initial appea l but was nonetheless fore g one, the mandate rule g ener ally prohibits the district court from reope ning the issue on rema nd

. . .,” O’De ll , 320 F.3d at 679. As the g overnme nt argues, the “g ood faith” issue w as not ripe at the time of L opez’s suppression hea ring beca use the sea

rch w as valid under pre- Gant prec edent and the office r’s “g ood faith” was irrele vant. Fur thermore , neither Gant nor United States v. Buford , 632 F.3d 264 (6th Cir. 2011), nor Davis v. United States , 131 S. Ct. 2419 (2011), which are discussed below, had y et been decide d. The g overnme nt has not waived the ar g ument.
4IV.

Finally , L opez argues that the “g ood faith” exception to the exclusionary rule does not apply to searc hes that occ urre d prior to the S upreme Court’s decision in Arizona v. Gant . His argument is fore closed by our decision in Buford and the Supreme Court’s rec ent decision in Davis , as rec ently discussed by another panel of this Court in United States v. Peoples , 2011 WL 2899363 (6th Cir. J uly 2 0 , 2 0 1 1 ). At issue in both Davis and Buford , as in the instant case , wer e valid sear ches incident to arr es t under exis ting circ uit prec edent but which violated the defe ndant’s Four th Amendment rig hts, as clar ified by Gant

. Both the Six th Circuit and the Supreme Court held that the exclusionary rul e h as n o application “whe n the police conduct a sear ch in objectively rea sonable

re l iance on binding appellate prece dent.” Davis , 131 S. Ct. at 2434; see also Buford , 6 3 2 F. 3 d at 276-77 (holding that “the judicially -cr eate d exclusionary rule does not apply and suppression is not

war rante d” when a police office r rea sonably relies upon “settled circ uit prec edent that authorizes the

sear ch of a

vehicle” ). The sear ch at issue in this case is no longe r per missibl e afte r Gant , as deter mined in Lopez I

. At the time it occur

red, howeve r, it wa s clea rly permitted. Only the law has chang ed. Under Davis and Buford , evidenc e seized under these c ircumstance s is not subj ect to suppre ssion. V. For these re asons, we A FF I RM.

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