CA11 (en banc): GFE considered even though waived before the panel

The Eleventh Circuit en banc concludes that the good faith exception may sometimes be reached on appeal even though the government didn’t raise it before the panel. United States v. Campbell, 2022 U.S. App. LEXIS 4317 (11th Cir. Feb. 16, 2022) (7-5):

Generally, issues that are not raised in a party’s brief on appeal are considered abandoned. But that rule is not ironclad, and we may exercise our discretion to consider issues not raised by the parties on appeal. Erickson Meko Campbell appeals the District Court’s denial of his motion to suppress evidence he claims was obtained in violation of the Fourth Amendment. Before the panel, both Campbell and the Government argued about whether a Fourth Amendment violation occurred. However, neither addressed whether the good-faith exception to the exclusionary rule would allow the suppression of that evidence even if a Fourth Amendment violation did occur. We asked the parties in our en banc briefing notice the following question: “Is the good-faith exception to the exclusionary rule a proper ground for affirming Campbell’s conviction despite the government’s failure to raise that alternative ground before the panel?” We conclude that we have the power to reach the good-faith exception in this case and exercise our discretion to do so. We also conclude that the good-faith exception applies in this case. Accordingly, we affirm the denial of Campbell’s motion to suppress.

It seems to me that only the prosecution gets the benefit of this rule. Read the dissent if you have time.