USA v. Eric Cousin


Per Curiam OPINION filed : The district court's judgment is AFFIRMED, decision not for publication pursuant to local rule 206. Deborah L. Cook, Circuit Judge; Helene N. White, Circuit Judge and Bernice Bouie Donald, Circuit Judge.

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Case: 10-5833 Document: 006111187987 Filed: 01/19/2012 Page: 1 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 12a0069n.06 No. 10-5833 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ERIC M. COUSIN, Defendant-Appellant. ) ) ) ) ) ) ) ) ) Jan 19, 2012 LEONARD GREEN, Clerk ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE Before: COOK, WHITE, and DONALD, Circuit Judges PER CURIAM. Eric Cousin, who has entered a conditional guilty plea to federal drug and firearm charges, appeals the district court’s order denying his motion to suppress. Cousin argues that the district court should have permitted an evidentiary hearing to determine whether the underlying traffic stop resulted from racial profiling in violation of his rights under the Equal Protection Clause of the Fourteenth Amendment. We unanimously agree that this appeal would not benefit from oral argument. Fed. R. App. P. 34(a). After reviewing the record, the parties’ briefs, and the applicable law, we agree with the district court that our recent decision in United States v. Nichols controls and precludes application of the exclusionary rule to Cousin’s equal protection claim. 512 F.3d 789, 794–95 (6th Cir. 2008) (declining to apply the exclusionary rule to a suppression motion predicated on the officer’s alleged use of racial profiling), overruled on other grounds as recognized in United Case: 10-5833 Document: 006111187987 Filed: 01/19/2012 Page: 2 No. 10-5833 United States v. Cousin States v. Buford, 632 F.3d 264, 269 (6th Cir. 2011). Cousin’s challenge to the stop under the 4th Amendment was rejected and he does not challenge that determination. Thus, the exclusionary rule does not apply. Under Nichols, “the proper remedy for any [criminal defendant’s equal protection] violation is a 42 U.S.C. § 1983 action against the offending officers.” Id. at 794. Cousin asks the court to overrule Nichols, but we cannot do so in the absence of an intervening change in law or en banc review. See, e.g., 6 Cir. R. 206; Valentine v. Francis, 270 F.3d 1032, 1035 (6th Cir. 2001). We therefore AFFIRM the district court’s judgment. -2-

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