PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 21-3251

_____________

UNITED STATES OF AMERICA,

 Appellant

v.

DONTE DOWDELL, a/k/a Pooh

_____________

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

Argued November 16, 2022

Before: HARDIMAN, PORTER, and FISHER, Circuit 

Judges

(Filed: June 2, 2023)

Philip R. Sellinger

Mark E. Coyne [ARGUED]

Office of United States Attorney 

970 Broad Street 
2

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

________________

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 
3

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 crossexamination, 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 
4

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

(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 (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 
5

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 
6

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 (1977) (per 

curiam) and Maryland v. Wilson, 519 U.S. 408 (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. Wilson extended the Mimms

rule to passengers. Wilson, 519 U.S. at 414–15. The Court 

analogized: “if the officer can order you out of the car, the 
7

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 
8

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 welldelineated exceptions.” California v. Acevedo, 500 U.S. 565, 

580 (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 search. The District 

Court found, and the Government now concedes, that there was 

no reasonable suspicion to justify opening the door. 

This appeal raises two issues. First, whether the District 

Court abused its discretion in finding the Government waived 

the argument that Wilson should be extended to justify opening 

the door. Second, even if the Government did waive (or forfeit)

1 The District Court had jurisdiction under 18 U.S.C. § 3231.

We have jurisdiction under 18 U.S.C. § 3731. 
9

that argument, whether the District Court abused its discretion 

by not excusing that waiver (or forfeiture).

We review the District Court’s determination that the 

Government waived (or forfeited) the Wilson-extension 

argument for abuse of discretion. See Kars 4 Kids Inc. v. 

America Can!, 8 F.4th 209, 219 n.9 (3d Cir. 2021).

A

We begin with the first issue. The Government argues 

that it neither waived, nor forfeited, the Wilson-extension

argument. Dowdell insists it did.

The parties accuse each other of misunderstanding the 

difference between waiver and forfeiture. Those arguments are 

understandable because courts only recently have focused on 

the difference between the two. “The terms waiver and 

forfeiture—though often used interchangeably by jurists and 

litigants—are not synonymous.” Hamer v. Neighborhood 

Hous. Servs. of Chicago, 138 S. Ct. 13, 17 n.1 (2017). Waiver 

is the “intentional relinquishment or abandonment of a known 

right.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). The 

Supreme Court has deemed an argument waived, for example, 

when a party “twice informed the U.S. District Court that it 

would not challenge, but is not conceding, the timeliness of 

[the petition].” Wood v. Milyard, 566 U.S. 463, 465 (2012) 

(cleaned up). In contrast, “forfeiture is the failure to make the 

timely assertion of a right.” United States v. Olano, 507 U.S. 

725, 733 (1993). “[A]n example of [forfeiture] is an 

inadvertent failure to raise an argument.” Barna v. Bd. of Sch. 

Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 147 (3d Cir. 

2017). The distinction between waiver and forfeiture “can 

carry great significance.” Barna, 877 F.3d at 146. A party’s 
10

waiver should be enforced. Id. at 146 n.7; Wood, 566 U.S. at 

472–73 (“It would be ‘an abuse of discretion’ for a court ‘to 

override a State’s deliberate waiver’”) (citation omitted). For a 

waiver to be valid, however, “the right said to have been 

waived must be waivable.” Gov’t of V. I. v. Rosa, 399 F.3d 283, 

290 n.6 (3d Cir. 2005). Although we cannot reach waived 

arguments, appellate courts may “resurrect” forfeited 

arguments in “extraordinary circumstances.” Wood, 566 U.S. 

at 471 & n.5; see also Barna, 877 F.3d at 147. This is because 

“the refusal to consider arguments not raised is a sound 

prudential practice, rather than a statutory or constitutional 

mandate, and there are times when prudence dictates the 

contrary.” Davis v. United States, 512 U.S. 452, 464 (1994) 

(Scalia, J., concurring). 

We enforce waiver and forfeiture against criminal 

defendants and the government equally. See Olano, 507 U.S. 

at 731 (“No procedural principle is more familiar . . . than that 

a constitutional right . . . may be forfeited in criminal as well 

as civil cases by the failure to make timely assertion of the right 

before a tribunal having jurisdiction to determine it.”) (quoting 

Yakus v. United States, 321 U.S. 414, 444 (1944)); Ritter, 416 

F.3d at 268 (“the government should not be afforded a second 

opportunity to carry its burden that the challenged evidence 

should not be suppressed.”). 

The policy supporting waiver and forfeiture is the 

“party presentation principle,” which applies “in both civil and 

criminal cases, in the first instance and on appeal.” Greenlaw 

v. United States, 554 U.S. 237, 243 (2008). “[A]s a general 

rule, ‘[o]ur adversary system is designed around the premise 

that the parties know what is best for them, and are responsible 

for advancing the facts and arguments entitling them to 
11

relief.’” Id. at 244 (quoting Castro v. United States, 540 U.S. 

375, 386 (2003) (Scalia, J., concurring)).

Waiver and forfeiture “serve[] several important 

judicial interests, protecting litigants from unfair surprise; 

promoting the finality of judgments and conserving judicial 

resources; and preventing district courts from being reversed 

on grounds that were never urged or argued before [them].” 

Webb v. City of Phila., 562 F.3d 256, 263 (3d Cir. 2009) 

(cleaned up). In our justice system, “litigants, not the courts, 

choose the facts and arguments to present.” United States v. 

James, 955 F.3d 336, 344 (3d Cir. 2020). Trial court 

proceedings are the “main event,” and not simply a “tryout on 

the road” to appellate review. Wainwright v. Sykes, 433 U.S. 

72, 90 (1977). And “[t]o the extent courts have approved 

departures from the party presentation principle in criminal 

cases, the justification has usually been to protect a pro se

litigant’s rights.” Greenlaw, 554 U.S. at 243−44.

B

The Government insists it neither waived nor forfeited 

the Wilson-extension argument in the District Court. We 

disagree.

The Government did not preserve the Wilson-extension 

argument by citing Mimms and Wilson in its supplemental 

brief. “[S]imply citing a case in the District Court is not 

sufficient to raise all arguments that might flow from it.” 

United States v. Dupree, 617 F.3d 724, 731 (3d Cir. 2010). The 

Government cited Mimms and Wilson to support the argument 

it now concedes was wrong: that there was reasonable 
12

suspicion to justify opening the car door. In its supplemental 

brief to the District Court, the Government wrote:

The Supreme Court has routinely recognized that 

traffic stops pose substantial risks to the police 

who perform them and has extended the 

constitutional principals [sic] in Terry to such 

encounters. See, e.g., Maryland v. Wilson, 519 

U.S. 408, 413–15 (1997), Michigan v. Long, 463 

U.S. 1032, 1045−52 (1983); Pennsylvania v. 

Mimms, 434 U.S. 106-12 (1977). Further, in 

United States v. Delfin-Colina, the Third Circuit 

expressly adopted “reasonable suspicion,” not 

“probable cause,” as the applicable standard 

when examining the lawfulness of a traffic stop. 

464 F.3d 392, 396–97 (3d Cir. 2006). . . . Here, 

the actions of the driver of the BMW led the 

officers to “quickly develop reasonable 

suspicion or probable cause.”

App. 257. 

As the block quotation demonstrates, the Government 

cited Wilson and Mimms to support its claim under Terry that

the officers had reasonable suspicion to conduct the traffic 

stop. The brief does not make the Wilson-extension argument

the District Court identified and the Government now presses 

on appeal. For that reason, the District Court concluded that the 

Government “waived” the Wilson−extension argument,

“because they did not raise it in the brief.” App. 41. That failure 

was forfeiture, not waiver. See Barna, 877 F.3d at 147. 

But the District Court’s misnomer was not an abuse of 

discretion because, despite our recent efforts to express waiver 
13

and forfeiture more accurately, Supreme Court caselaw, our 

caselaw, and former Rule 12 of the Federal Rules of Criminal 

Procedure all used the term waiver to include forfeiture, while 

preserving the legal distinction. See, e.g., Freytag v.

Commissioner, 501 U.S. 868, 894 n.2 (1991) (Scalia, J., 

concurring) (“[We] have so often used them interchangeably 

that it may be too late to introduce precision.”); Dupree, 617 

F.3d at 727 n.1 (explaining why the language of former Rule 

12(e) of the Federal Rules of Criminal Procedure has led many 

to use the terms interchangeably). 

The dissent deems the District Court’s use of the term 

“waiver” instead of “forfeiture” to be an error constituting an 

abuse of discretion. It claims the 2014 revisions to Rule 12 of 

the Federal Rules of Criminal Procedure resolved the 

confusion between waiver and forfeiture. Dissent Part I.A. If 

only that were so. In 2017, the Supreme Court noted that judges 

frequently use forfeiture and waiver “interchangeably” even 

though they “are not synonymous.” Hamer v. Neighborhood 

Hous. Servs. of Chicago, 138 S. Ct. 13, 17 n.1 (2017). Our 

Court has done likewise—including in the very case that 

establishes the standard of review we apply here. See Kars 4 

Kids, Inc., 8 F.4th at 219 n.9 (“We review a district court’s 

determination whether a party waived an argument by failing 

to raise it earlier in the proceedings for abuse of discretion.”);

see also Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 752 

n.8 (3d Cir. 2019) (“As Baloga has not meaningfully briefed or 

argued his speech claim on appeal, he has waived it.”) (citing 

In re: Asbestos Prods. Liab. Litig. (No. VI), 873 F.3d 232, 237 

(3d Cir. 2017), which also used “waiver” instead of 

“forfeiture”); In re Vehicle Carrier Servs. Antitrust Litig., 846 

F.3d 71, 83 n.12 (3d Cir. 2017) (referring to a failure to raise 

an argument in briefing as “waiver,” and approving of the 
14

district court’s decision not to let plaintiffs make those new 

arguments at oral argument). So the dissent’s statement that 

“no intervening caselaw suggests an ongoing confusion 

between waiver and forfeiture” is demonstrably false. See 

Dissent Part I.A.

The dissent’s further insistence that we cannot excuse 

conflation of the terms because the Supreme Court has not 

made the same mistake is an overly harsh rule accepted by no 

other circuit. See Dissent Part I.A. The Supreme Court has also 

explicitly declined to articulate any general rule regarding 

waiver, leaving it “primarily to the discretion of the courts of 

appeals, to be exercised on the facts of individual cases.” Exxon 

Shipping Co. v. Baker, 554 U.S. 471, 487 (2008) (citation 

omitted). Judicial modesty requires that we acknowledge that 

our Court’s inexact usage of “waiver” and “forfeiture” could 

well have influenced the District Court’s misnomer here. The 

District Court’s conflation of the terms “waiver” and 

“forfeiture” was not an abuse of discretion.

C

The Government next argues it neither waived nor 

forfeited the Wilson-extension argument because it adopted the 

argument when the Court was ruling from the bench. The

transcript of the suppression hearing indicates otherwise. The 

Court opened proceedings by confirming that it correctly 

understood the Government’s argument. The Government said 

it was “absolutely correct” that its argument was reasonable 

suspicion. App. 10. The Government said nothing about any 

alternative argument that Wilson should be extended or that 
15

something less than reasonable suspicion might justify opening 

the car door. 

Also unpersuasive are the Government’s claims, after 

the Court suggested that Wilson could be extended to license 

Gambino’s actions, that the Government had made that 

argument all along. The Court called the Government’s bluff, 

explaining “with all due respect you try to massage what’s 

already been submitted. 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. 38.2

Even if the Government had affirmatively made a new 

argument at the oral hearing, we are doubtful that this can 

overcome any forfeiture in its briefing. The dissent argues that 

new arguments can be made at suppression hearings. But the 

dissent, like the Government on appeal, cites no caselaw for 

that proposition. In fact, our caselaw indicates the opposite, 

2 The dissent argues that the Government implied that it had 

more than one alternative argument because the District Court 

used the phrase “not only.” Dissent Part I.B. This is a strained 

reading of the colloquy between the Court and counsel. The 

Court asked if “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[?]” The Government 

responded: “That’s absolutely correct, Your Honor, yes.” The

Court’s halting mention of the phrase “not only”—which was 

followed by one point, not two—did nothing to help the 

Government advance an alternative argument. We know that 

to be the case because the Government reiterated that its 

argument was “absolutely” Terry.
16

generally holding that parties cannot get a second bite at the 

apple at oral rulings. See, e.g., In re Vehicle Carrier Servs. 

Antitrust Litig., 846 F.3d at 83 n.12 (approving of a district 

court’s decision not to let plaintiffs make new arguments at 

oral argument). In any event, the Government did not suggest 

that it was making any new arguments at the suppression 

hearing, but rather insisted that it had not forfeited the Wilsonextension argument in its briefing.3 So the District Court was 

correct that the Government’s last-ditch attempt to “massage” 

what it submitted was unavailing.

Our review of the record confirms the District Court’s 

decision that the Government never made the Wilson-extension 

argument. The Government’s sole legal theory was that

reasonable suspicion justified Detective Gambino opening the 

car door. For these reasons, we hold that the District Court did 

not abuse its discretion when it found that the Government 

waived (forfeited) the Wilson-extension argument. 

III

The Government’s fallback position is that even if it 

forfeited the Wilson-extension argument, the District Court 

3 The dissent argues that the Government affirmatively 

committed to the alternative Wilson-extension argument, citing 

Appendix pages 37 through 40. Dissent Part I.B. At those 

pages the Government merely continued to protest that its brief 

had not failed to raise the Wilson-extension argument. The 

Government did not proffer a new (alternative) argument.
17

abused its discretion in not excusing the forfeiture.

4 The 

Government makes two arguments in support of this position.

Neither is persuasive. 

A

First, the Government argues that evidence cannot be 

suppressed when the District Court concludes there has been 

no Fourth Amendment violation. The Government’s premise 

is flawed. The Court ruled on the legal argument the 

Government presented—reasonable suspicion—and

disclaimed ruling on the Wilson−extension argument. The 

Court used conditional language when discussing whether 

extending Wilson would cure any Fourth Amendment 

violation. App. 40 (“I’m only saying I think that’s the way I 

would have ruled because [opposing counsel] didn’t have the 

opportunity to reply.”); see also id. (“Let’s make the record 

clear. . . . I think I could have found that [opening the door] was 

constitutional.”); App. 32 (“It seems, to me, if the Government 

had raised the alternate analysis, the Government would have 

prevailed.”) (all emphases added). 

More fundamentally, the Court found a Fourth 

Amendment violation. The Court suppressed the evidence 

4 The Government also argues that the District Court should 

have ordered additional briefing on the propriety of extending 

Mimms and Wilson. The Government cited no caselaw or rule 

suggesting that a court’s failure to order supplemental

briefing—let alone a second round of supplemental briefing—

is an abuse of discretion. In any event, the Government

essentially conceded that additional briefing would not have 

been helpful. Gov’t Br. 22 (“[I]t’s hard to see what he could 

have said in additional briefing.”).
18

because the Government’s reasonable suspicion argument—

which the Government confirmed was its only argument—

failed as a matter of law. The Court suppressed the evidence 

on that basis alone. 

The Government also claims the District Court had to 

extend Wilson because that is the “correct law.” Gov’t Br. 19–

20. This claim is based on another flawed premise because we

have yet to extend Wilson to the circumstances presented here. 

Whether an officer can open a car door during a traffic stop 

based on less than reasonable suspicion is an open question in 

our circuit. And our sister courts are divided on the question.

5

In sum, the District Court never held there was no 

5 Dowdell incorrectly claims that every federal case to consider 

what justifies opening a car door classified the inquiry as 

requiring reasonable suspicion analysis. Dowdell Br. 13–14 

(collecting cases). The Eleventh Circuit has extended Mimms

and Wilson such that reasonable suspicion was not necessary

to justify opening a car door. United States v. Cotton, 721 F.2d 

350, 352 (11th Cir. 1983). The Fifth Circuit has similarly 

extended Wilson without requiring reasonable suspicion, but 

only in the narrow context of opening a door after an occupant 

is ordered to exit the vehicle and claims to be physically unable

to do so. United States v. Meredith, 480 F.3d 366, 371 (5th Cir. 

2007). The subsequent search is limited to a “minimally 

necessary visual inspection of just his person.” Id. Three 

federal circuits do require reasonable suspicion to justify 

opening a car door. The D.C. and Fourth Circuits have 

extended Mimms and Wilson to include opening a car door, but 

only when there was also reasonable suspicion, which the 

Government concedes did not exist here. United States v. 
19

Fourth Amendment violation. So the Court did not abuse its 

discretion in finding the Wilson-extension argument forfeited.

The Government’s argument that the applicable law can never 

be waived fails because the law here is not settled.

6 And even 

if we were to decide the Fourth Amendment question 

ourselves, we would still be unable to resolve this case in the 

Government’s favor because the Government failed to 

Brown, 334 F.3d 1161, 1169 (D.C. Cir. 2003); United States v. 

Stanfield, 109 F.3d 976, 981, 984–85 (4th Cir. 1997). 

Similarly, the Ninth Circuit requires reasonable suspicion to 

open a door and lean inside a car, considering such actions to 

implicate greater privacy concerns than merely ordering the 

driver out of car under Mimms. United States v. Ngumezi, 980 

F.3d 1285, 1288–89 (9th Cir. 2020) (“even if opening a door 

and leaning into the car is a lesser intrusion on the driver’s 

liberty, it is a greater intrusion on the driver’s privacy interest 

in the car’s interior.”). 

6 The dissent argues that the caselaw is settled, citing United 

States v. Hurtt, 31 F.4th 152, 161–63 (3d Cir. 2022). Dissent 

Part I.C. But Hurtt was not published at the time of the District 

Court’s ruling, so the District Court can’t be faulted for not 

applying it. And even if Hurtt had been published, it does not 

establish the Wilson-extension argument as the law in our 

Circuit. Hurtt found that leaning into a vehicle was off mission 

under Rodriguez and unlawful because there was no reasonable 

suspicion. That doesn’t mean that opening a car door is always

lawful. In fact, the officer in Hurtt didn’t open the car door and 

the opinion didn’t even cite Wilson. See supra n.6. As we 

explain today, whether the Wilson-extension argument applies 

in our Circuit remains an open question.
20

preserve the Wilson-extension argument on appeal.7

B

The Government alternatively argues that the District 

Court abused its discretion in not excusing the forfeiture.

8 We 

disagree. 

The Government is correct that enforcing forfeiture in 

suppression hearings does not promote the exclusionary rule’s 

“sole purpose” of “deter[ring] misconduct by law 

enforcement.” Davis v. United States, 564 U.S. 229, 246 

(2011) (emphasis in the original); It is also correct that the 

exclusionary rule is not meant “to punish the errors of judges 

and magistrates” who mistakenly issue warrants, United States 

v. Leon, 468 U.S. 897, 916 (1984); or “mistakes by court 

7 In United States v. Joseph, we explained how to preserve an 

argument on appeal: the same legal rule and same facts must 

have been presented in the District Court. 730 F.3d 336, 342

(3d Cir. 2013). The Government argued in the District Court

that opening the door was justified by reasonable suspicion. On 

appeal, it claims opening the door was justified by something 

less than reasonable suspicion. These are two different legal 

rules. So the Wilson-extension argument was not preserved on 

appeal either.

8 The Government did not argue that the District Court should 

have excused any forfeiture based on any of the traditional 

forfeiture exceptions. See Barna, 877 F.3d at 147 (collecting 

cases). Nor did it argue that the exclusionary rule should not 

have applied because Gambino acted in good faith. See Davis 

v. United States, 564 U.S. 229, 238 (2011). 
21

employees” in their clerical duties, Arizona v. Evans, 514 U.S. 

1, 14 (1995); or good faith but mistaken understandings of the 

law by police, Leon, 468 U.S. at 922–23. Here, Dowdell avoids

trial not because the officer blundered, but because the 

Government lawyer may have blundered. 

Although the District Court’s suppression of evidence 

does nothing to deter police misconduct, it would be unwise to

categorically excuse waivers or forfeitures in suppression 

hearings. Doing so would violate the party presentation 

principle, the bedrock of our adversarial system. That principle

ensures that courts decide only those issues argued by 

interested and motivated litigants. The Supreme Court recently 

reaffirmed the party presentation principle in United States v.

Sineneng-Smith. 140 S. Ct. 1575, 1579–80 (2020). In that case, 

the Ninth Circuit had identified new arguments on appeal, 

invited supplemental briefing on them from amici, and 

restructured the oral argument and its decision based on those 

arguments. Id. at 1580−81. According to the unanimous 

Supreme Court, this “radical transformation” of suggesting and 

ruling on an unpreserved argument “departed so drastically 

from the principle of party presentation as to constitute an 

abuse of discretion.” Id. at 1578, 1582. As the Supreme Court 

explained, “[c]ourts are essentially passive instruments” that 

“do not, or should not, sally forth each day looking for wrongs 

to right. They wait for cases to come to them, and when cases 

arise, courts normally decide only questions presented by the 

parties.” Id. at 1579 (cleaned up).

The party presentation principle supports our practice of 

enforcing forfeiture against the government in the same way 

we do with defendants. See, e.g., Ritter, 416 F.3d at 268. That 

practice includes enforcing forfeiture against the government 

even when doing so does not further the purpose of the 
22

exclusionary rule. For example, a government failure to argue 

that a defendant has no Fourth Amendment “standing” is 

“subject to the ordinary rule that an argument not raised in the 

district court is [forfeited] on appeal.” United States v. Stearn, 

597 F.3d 540, 551 n.11 (3d Cir. 2010).9 When the government 

fails to bring a viable Fourth Amendment standing challenge, 

defendants benefit from the exclusionary rule even when their 

own Fourth Amendment rights may not have been implicated.

And when, as in this case, the government is a party,

categorically excusing forfeiture would raise separation of 

powers concerns. In a suppression hearing, the government—

not the Court—bears the burden of proving there was no 

Fourth Amendment violation. Ritter, 416 F.3d at 261. Had the 

District Court intervened here by excusing the Government’s 

forfeiture and applying the Court’s own novel legal theory, it 

would have undermined the judiciary’s neutrality and 

encroached upon the executive branch’s prosecutorial 

prerogative to argue its case. 

For these reasons, we decline the Government’s 

invitation to create an exception to protect it from forfeiting

9 We use the term “standing” not in the jurisdictional sense but 

as shorthand for the determination of whether Fourth 

Amendment rights have been implicated. Stearn, 597 F.3d at 

544 n.2.
23

arguments in suppression hearings. It follows that the District 

Court did not abuse its discretion in declining to do so as well. 

* * *

We have not yet decided whether police officers may 

open car doors during routine traffic stops based on less than 

reasonable suspicion without violating the Fourth Amendment. 

The District Court suggested that the Supreme Court’s decision 

in Wilson might be extended to cover those circumstances. But 

the Government never raised or litigated that argument in the 

District Court. So the argument was forfeited. And the 

argument the Government did make—that Detective Gambino 

had reasonable suspicion to believe crime was afoot that 

justified his opening the car door—was invalid, as the 

Government now concedes. We also hold that the District 

Court did not abuse its discretion when it did not excuse the 

Government’s forfeiture. For these reasons, the rule of law 

requires us to affirm the order of the District Court.
United States of America v. Donte Dowdell, No. 21-3251

FISHER, Circuit Judge, dissenting:

Donte Dowdell is a felon who was found in possession 

of a firearm during a lawful traffic stop. The District Court said 

the actions of the officer conducting the stop did not violate the 

Constitution. We have an obligation to apply the correct law.

Accordingly, I dissent from the majority opinion. The District 

Court based its waiver determination on an incorrect 

application of the law because the Government did not 

intentionally relinquish or abandon the Wilson-extension 

argument. Nor is it clear the Government failed to preserve that 

argument at the suppression hearing. But even if the 

Government failed to preserve the Wilson-extension argument, 

courts are obligated to apply the legal principles they identify 

as correct, and the District Court correctly recognized that 

officers do not require reasonable suspicion to open a car door 

when conducting a traffic stop.

I

A. The District Court was incorrect in finding the 

Government waived its Wilson-extension argument and in not

applying Rule 12 of the Federal Rules of Criminal Procedure.

Although an argument may be forfeited if not timely 

asserted, waiving an argument requires “intentional 

relinquishment or abandonment.” United States v. Olano, 507 

U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 

464 (1938)). In ruling from the bench, the District Court stated:

Let’s make the record clear. 

Defendant’s position was you 

waived it because you didn’t raise 

it. So I think it would be fair to say 
2

you have waived that argument 

because you didn’t raise it. I’m 

also making a separate finding that 

even though I think I could have 

found that it was constitutional, 

that argument has been waived by 

the United States by their failure 

to raise it.

App. 40 (emphasis added).

Regardless of whether the Government failed to raise the 

Wilson-extension argument in its briefing, the law does not 

treat unraised arguments as waived. Olano at 733. Moreover, 

it is undisputed that the Government did not intentionally 

relinquish or abandon the argument as required for waiver. Id.

The District Court thus relied on an incorrect view of the law 

when it found the Government waived the Wilson-extension 

argument due to a failure to raise.

The majority does not dispute that the District Court 

based its ruling on an incorrect view of waiver law. 

Nevertheless, the majority says the District Court’s ruling was 

just a “misnomer,” because the former version of Rule 12 of 

the Federal Rules of Criminal Procedure and outdated case law 

developed in reliance on that former version used the term 

waiver to include forfeiture. Maj. Op. II.B. But the Supreme 

Court amended Rule 12 to resolve that confusion nearly ten 

years ago. 

To accept the majority’s position requires ignoring the 

nearly ten-year-old amendment to Rule 12 of the Federal Rules 

of Criminal Procedure, because that amendment resolved 

precisely the confusion the majority believes excuses the 

District Court’s error. Prior to 2014, Rule 12 stated that failing 

to raise a suppression motion “shall constitute waiver thereof, 
3

but the court for cause shown may grant relief from the 

waiver.” Fed. R. Crim. P. 12(e) (2013). This former version of 

Rule 12’s waiver-unless-good-cause-shown language created 

confusion because it appeared to be in tension with Rule 52(b) 

which permitted a court to review a “plain error that affects 

substantial rights,” “even though it was not brought to the 

court’s attention.” Fed. R. Crim. P. 52(b). Both rules seemed 

to address what a court should do with a suppression motion 

not timely raised. In 2008, we found that when a criminal 

defendant fails to move to suppress evidence before the District 

Court, we apply Rule 12’s waiver rule, not Rule 52(b). United 

States v. Rose, 538 F.3d 175, 182–84 (3d Cir. 2008) (citation 

omitted). And as cited by the majority, we continued to rely on 

the former Rule 12 when we explained what a party must do to 

“preserve [a suppression] argument and avoid waiver” 

pursuant to Rose. United States v. Joseph, 730 F.3d 336, 342 

(3d Cir. 2013).

That all changed in 2014, when the Supreme Court 

deleted the word “waiver” from Rule 12. Now, instead of 

stating that failure to raise a suppression motion “shall 

constitute waiver thereof,” Rule 12 states the motion is 

“untimely” and may be considered if the party shows good 

cause. Fed. R. Crim. P. 12(c)(3). (The 2014 amendments 

relocated the effect of failure to raise issues by pretrial motion 

from (e) to (c)(3)). The Rule is silent regarding arguments 

opposing motions to suppress. Per the advisory committee 

notes accompanying the change, Rule 12 “never required any 

determination that a party who failed to make a timely motion 

intended to relinquish a defense, objection, or request that was 

not raised in a timely fashion.” Fed. R. Crim. P. 12 advisory 

committee’s note to 2014 amendment. Nearly a decade has 

passed since the Supreme Court made this change to “avoid 

possible confusion” brought about by using the term “waiver,”
4

and no intervening caselaw suggests an ongoing confusion 

between waiver and forfeiture.

1 Id. Thus, there are no grounds 

on which the District Court could conclude a party who failed 

to timely move under Rule 12 intended to intentionally 

relinquish, and thus waive its right to make such a motion. Nor 

is there a basis to conclude a party who failed to raise an 

argument in opposition intended to waive that argument either. 

Accordingly, the District Court’s waiver ruling should not be 

excused as a misnomer. Rather, the District Court should be 

required to apply the current version of Rule 12 and determine 

if it precluded the Government from advancing the Wilsonextension argument at the suppression hearing.

B. The Government preserved its Wilson-extension 

argument.

The majority believes that even though the District 

Court erred in finding waiver, suppression is still appropriate 

because the Government nevertheless forfeited the Wilsonextension argument. Again, I disagree. While it may have 

fallen short in its briefing, the Government “timely assert[ed]” 

and thus preserved the Wilson-extension argument by 

committing to it at the suppression hearing. See Olano, 507 at 

733.

While the District Court rightly deserves commendation 

for recognizing the Wilson-extension argument correctly 

presented the law, it did not conduct the suppression hearing in 

a way that makes it possible for us to conclude the Government 

1 The Majority identifies post-2014 examples of this Court’s 

“inexact usage of ‘waiver’ and ‘forfeiture’” and notes they 

“could well have influenced the District Court’s misnomer 

here.” Maj. Op. II.B. The point stands that no intervening 

Supreme Court caselaw has perpetuated such confusion. 
5

failed to preserve that argument. The Court opened 

proceedings by asking if “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 . . .” App. 

10 (emphasis added). While the Government answered that 

question in the affirmative, affirming its position is “not only” 

one argument necessarily implies the existence of at least one 

alternative argument. And as soon as the District Court allowed 

the Government to speak again, after it announced its 

erroneous waiver-based ruling, the Government affirmatively 

stated its commitment to the alternative Wilson-extension 

argument. App. 37–40. What that leaves us with is a District 

Court erroneously finding the “argument has been waived by 

the United States by their failure to raise it,” and the 

Government responding “for the record” that it “never got to 

that point so I’m making that argument.” App. 40, 42.

Accordingly, because I cannot accept the District Court’s 

incorrect waiver determination, and because the Government 

committed to the Wilson-extension argument prior to any 

legally correct disposition, the argument should be preserved 

for our review. Moreover, finding the argument preserved 

would comport with the Third Circuit’s long-standing tradition 

of providing litigants the opportunity to make their cases in 

court absent jurisdictional issues. 

C. The District Court was obligated to apply the correct 

legal principles.

The District Court concluded that officers do not need 

reasonable suspicion to open a car door in the context of a 

traffic stop, yet it failed to apply that correct legal principle. 

District courts are not limited to the legal theories advanced by 

the parties, rather they retain the power and obligation to apply 

the legal principles the court identifies as correct. Kamen v. 

Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991); United States
6

v. Engler, 806 F.2d 425, 433 (3d Cir. 1986).

The District Court noted it did its “own independent 

research because I was not familiar with the issue as to whether 

an officer needed reasonable articulable suspicion to open a 

door.” App. 32. The Court continued, “I conclude that an 

officer does not necessarily need reasonable articulable 

suspicion to open the door if the initial stop is legitimate.” Id. 

And the Court found “uncontested that the initial traffic stop 

was lawful under the Fourth Amendment.” App. 34. Therefore, 

because the initial stop was legitimate, the District Court was 

obligated to apply the correct legal principles and find Officer 

Gambino’s opening of the door permissible under the Fourth 

Amendment. 

The majority attempts to diminish the importance of the 

District Court’s legal conclusion. It does so by spotlighting the 

District Court’s use of conditional language in its discussion of 

how it would have ruled had it not found the Government 

waived the Wilson-extension argument, as if that somehow 

justifies deviating from applying the correct law. But the 

District Court’s use of conditional language cuts in favor of the 

Government, as the only condition that prevented the District 

Court from finding Officer Gambino’s actions constitutional 

was its own incorrect finding of waiver. The District Court 

said, “even though I think I could have found that it was 

constitutional, that argument has been waived by the United 

States by their failure to raise it.” App. 40. Stated plainly, the 

District Court concluded Officer Gambino’s actions were 

constitutional, and it only ruled against the Government 

because it did not believe the Government properly explained

why they were constitutional, thus leading to its incorrect 

finding of waiver. 

Moreover, contrary to the majority’s assertion, the 
7

Wilson-extension argument comports with Third Circuit 

precedent. Just last year, we found an officer’s actions at a 

traffic stop were justified until the moment “he entered the 

truck and kneeled on the front seat.” United States v. Hurtt, 31 

F.4th 152, 161–63 (3d Cir. 2022). In doing so, we cited United 

States v. Ngumezi for its application of “a bright-line rule that 

opening a door and entering the interior space of a vehicle 

constitutes a Fourth Amendment search” and for its holding 

that an officer violated the Fourth Amendment when he 

“leaned in across the plane of the door.” Hurtt, 31 F.4th at 163 

n.85 (quoting United States v. Ngumezi, 980 F.3d 1285, 1289 

(9th Cir. 2020)). While Hurtt was not published at the time of 

the District Court’s ruling, the District Court independently 

identified what it believed (and we later affirmed) was the 

correct law. The District Court was obligated to apply that law. 

Accordingly, because Officer Gambino just opened the car 

door, but never entered the interior space of the vehicle, he did 

not violate the Fourth Amendment and the firearm should not 

be suppressed.

D. The exclusionary rule does not support suppression. 

This is at worst an instance of the Government engaging 

in cursory lawyering, not in constitutionally violative conduct. 

The majority and I agree that the Government is correct that 

enforcing forfeiture does not promote the exclusionary rule’s 

“sole purpose” of “deter[ring] misconduct by law 

enforcement.” Davis v. United States, 564 U.S. 229, 246 

(2011); Gov’t Br. 1–2, 20. Rather, suppressing the firearm

because of a potential deficiency by the Government’s lawyer 

deters no misconduct by any party. And considering the 

District Court’s erroneous waiver determination, nor does 

upholding suppression encourage district courts to apply the 

correct law.
8

Nevertheless, the majority still believes suppression is 

appropriate, even if Officer Gambino’s conduct was 

constitutionally sound. It finds support for suppression in the 

party presentation principle. To the majority’s credit, it is true

that the party presentation principle is a foundational 

component of our adversarial system. But it is also true that 

“the public legitimacy of our justice system relies on 

procedures that are neutral, accurate, consistent, trustworthy, 

and fair, and that provide opportunities for error correction.” 

Rosales-Mireles, 138 S. Ct. at 1908 (internal quotation marks

omitted). Furthermore, this is wholly unlike the party 

presentation principle issue identified by the majority in United 

States v. Sineneng-Smith, 140 S. Ct. 1575, 1579–80 (2020). 

There, the Ninth Circuit invented new arguments of its own, 

invited supplemental briefing on those arguments from amici, 

and restructured the oral argument and its decision based on 

those, not the plaintiff’s arguments. Id. at 1580–81. Here, the 

District Court identified the argument in question, and the 

Government committed to that argument at the suppression 

hearing, if not in its briefing. The case has come to us, and we 

may decide based solely on questions presented by the parties 

with no third-party briefing. The preservation of the public 

legitimacy of our institution is paramount. Thus, even if the 

Government had forfeited its Wilson-extension argument prior 

to the suppression hearing, we must hold the principles of 

accuracy and error correction outweigh the party presentation 

principle to the limited extent it is implicated. Contrary to the 

majority opinion, reversing the District Court would not be a 

categorical excuse of forfeiture. We would simply do what the 

District Court correctly identified as correct, but what it 

refused to do based on an erroneous understanding of the law.

II

For the above reasons, I respectfully dissent. I would
9

either remand with instructions to apply the current version of 

Rule 12(c) of the Federal Rules of Criminal Procedure or 

reverse the order of the District Court.