Waiver by Explicit Disavowal at a Suppression Hearing Bars Appellate Review of a Residence-Search Challenge

Introduction

In United States v. Kevin Smith, No. 24-1797 (6th Cir. Nov. 5, 2025) (not recommended for publication), the Sixth Circuit affirmed the denial of a motion to suppress and the resulting convictions after concluding that the defendant waived—rather than merely forfeited—his challenge to the search of a residence. The decision addresses the line between waiver and forfeiture in the suppression context and underscores how an explicit narrowing of issues by defense counsel at a suppression hearing can foreclose appellate review.

The case arose from a fentanyl investigation that used two controlled buys and surveillance of a Ford F-150 associated with Kevin Smith. A magistrate judge issued a warrant covering Smith’s person, the F-150, and a Walnut Street residence. On execution of the warrant, officers seized multiple controlled substances, firearms, and prerecorded buy funds. Smith moved to suppress evidence, but in district court expressly disclaimed any challenge to the search of the Walnut residence, focusing instead on the stop and search of his person and truck. On appeal, he attempted to challenge probable cause to search the residence for the first time.

The key issue before the Sixth Circuit was procedural: whether Smith’s attempt to contest the residential search on appeal was barred by waiver due to his counsel’s explicit disavowal of that argument at the suppression hearing. The court held the issue was waived and declined to review it, affirming the conviction and sentence.

Summary of the Opinion

The Sixth Circuit affirmed the district court’s judgment. Applying the established standard of review—clear error for factual findings and de novo for legal conclusions (United States v. Long, 464 F.3d 569, 572 (6th Cir. 2006))—the court resolved the appeal on waiver grounds:

The government argued that Smith waived any challenge to the Walnut Street search. The court agreed, citing a continuum that distinguishes forfeiture (failure to timely assert a right) from waiver (intentional relinquishment of a known right). See United States v. Carter, 89 F.4th 565, 568 (6th Cir. 2023) (relying on United States v. Olano, 507 U.S. 725, 733 (1993)).
The panel emphasized defense counsel’s explicit statements in the suppression hearing narrowing the motion to Smith’s person and the Ford F-150 and affirmatively stating, “No, we’re not saying the house.” The district court relied on that representation and developed no factual record on the house-search issue.
Because of the clear, on-the-record disavowal and the absence of factual development, the Sixth Circuit concluded the issue was waived and thus unreviewable on appeal. Cases treating unraised arguments as forfeited and therefore subject to plain-error review did not apply because here counsel took an affirmative step to abandon the issue.
The court also rejected the claim that the district court’s general statements about probable cause to search the house meant the merits had been reached. The district court did not specifically address the now-asserted challenges; its generalized finding did not convert the disavowed issue into one preserved for appeal.
Having found waiver, the court declined to review any additional arguments predicated on invalidating the residence search. The convictions and sentence were affirmed in full.

Factual and Procedural Background

Investigation and First Controlled Buy (late April 2023): A cooperating individual (CI) told officers about a fentanyl dealer named “Kevin,” described as a Black male, ~40–50, residing in Westland, Michigan. During a controlled buy, the CI entered a black Ford F‑150 driven by a Black male. Afterward, officers “eventually followed” the F‑150 to a Walnut Street residence and observed the driver walk to the front door. The CI confirmed the seller was the “Kevin” previously identified.
Identification of Kevin Smith: The F‑150 was registered to Antwanda Roland. A Dodge Ram registered to Roland led to a past citation issued to Kevin Smith. The CI identified Smith from a driver’s license photo as the seller.
Second Controlled Buy (early May 2023): Officers surveilled the Walnut residence, observed Smith exit the front door and get into the same F‑150. The controlled buy occurred at a prearranged location; officers again “eventually” followed Smith back to the Walnut residence, where he reentered. The CI turned over fentanyl obtained in the buy.
Warrant and Execution (May 10–11, 2023): A magistrate judge authorized a search of Smith’s person, the F‑150, and the Walnut Street residence. On May 11, during a traffic stop and search of Smith and the truck, officers recovered crack-cocaine, fentanyl, a digital scale, and a firearm in the console. They also searched the Walnut residence and found methamphetamine, fentanyl, cocaine, crack cocaine, processing/packaging materials, cash including prerecorded buy funds, and two loaded firearms.
District Court Proceedings: Indicted on six counts (four drug-distribution counts; two firearm-possession counts), Smith moved to suppress evidence from the traffic stop. At the suppression hearing, defense counsel narrowed the challenge, explicitly disavowing the house search: “No, we’re not saying the house.” The district court denied the motion, upholding the warrant and searches. A jury convicted Smith on all six counts, and he was sentenced on September 10, 2024.
Appeal: For the first time on appeal, Smith argued lack of probable cause to search the Walnut residence, asserting it was not his residence and that the “eventually followed” surveillance was insufficient to establish a nexus. The government responded that Smith had waived any challenge to the residence search.

Analysis

Precedents Cited and Their Role

United States v. Long, 464 F.3d 569, 572 (6th Cir. 2006): Sets the standard of review for suppression rulings—clear error for facts, de novo for law.
United States v. Carter, 89 F.4th 565, 568 (6th Cir. 2023): Articulates the continuum between forfeiture and waiver, quoting Olano’s core definitions—failure to assert a right (forfeiture) versus intentional relinquishment (waiver).
United States v. Olano, 507 U.S. 725, 733 (1993): Supreme Court anchor defining waiver versus forfeiture. Waiver eliminates the error; forfeiture permits plain-error review.
Walker v. United States, 134 F.4th 437, 440–46 (6th Cir. 2025): Elaborates on assessing intent to abandon an argument. The more a party’s statements reflect a deliberate decision to abandon, the closer to waiver; absent indications of intent, conduct trends toward forfeiture.
Wood v. Milyard, 566 U.S. 463, 473 (2012): Highlights that courts should respect a party’s deliberate decision to forgo a claim or defense.
United States v. Montgomery, 998 F.3d 693, 697 (6th Cir. 2021): Addresses intentional abandonment and its consequences in appellate review.
United States v. Holland, 522 F. App’x 265, 272 (6th Cir. 2013): Finds waiver where defense counsel acknowledged below that the defendant let officers in—an explicit concession that precluded raising consent arguments on appeal. The panel analogized Smith’s counsel’s statements to Holland’s on-the-record concession.
United States v. Clariot, 655 F.3d 550, 556 (6th Cir. 2011): Distinguishes forfeiture from situations where the district court actually addressed the merits. The Smith panel emphasized that merely mentioning an issue or entering a general conclusion does not equate to resolving the specific merits of an unraised argument.
United States v. Noble, 762 F.3d 509, 526–28 (6th Cir. 2014): The government’s failure to raise lack of standing was forfeiture, not waiver; mere omission does not show intentional abandonment. The panel used Noble to contrast Smith’s case, where counsel affirmatively disavowed the issue.
United States v. Clark, 24 F.4th 565, 577 (6th Cir. 2022): Confirms that explicit concessions on the record constitute affirmative waiver of the precise issue later raised on appeal.
United States v. Mabee, 765 F.3d 666, 673 (6th Cir. 2014); United States v. Abdi, 827 F. App’x 499, 506 (6th Cir. 2020): Support the rule that plain, explicit concessions in the trial court waive appellate review of those issues.

Legal Reasoning

The Sixth Circuit’s ruling turns on process rather than substance. The court delineated the waiver–forfeiture continuum and then placed Smith’s conduct firmly on the waiver end, drawing from multiple points in the record:

Explicit Disavowal: The district judge asked for clarification on which parts of the warrant were being challenged. Defense counsel responded, “No, we’re not saying the house,” expressly excluding the residence from the suppression challenge. This is the “hallmark of waiver” because it shows a considered, intentional abandonment of a known claim.
Reliance and Record Development: The district court relied on counsel’s limitation and did not develop facts or hold an evidentiary hearing on the residence issue. Reviewing it on appeal would require factual findings that an appellate court cannot make in the first instance. This practical consequence reinforces a finding of waiver.
No Merits Ruling Below: Although the district court later stated that probable cause existed to search the house, the Sixth Circuit interpreted that as part of a general conclusion and not as a merits ruling on arguments never presented. Under Clariot, only when a district court actually addresses the merits of a specific issue can an otherwise unpreserved claim be treated as forfeited rather than waived. Here, the judge even noted that “defendant has not raised an issue that would undermine the affidavit,” confirming no merits dispute on the house was before the court.
Distinguishing Forfeiture Cases: In cases like Noble, the absence of a party’s argument is forfeiture, opening the door to plain-error review. But Smith is different: counsel did not merely omit the issue; counsel affirmatively narrowed the challenge, directing the court away from the house. That is waiver, and it extinguishes the claim for appellate purposes.

Because of waiver, the court did not reach the underlying Fourth Amendment question—whether the affidavit’s facts, including the “eventually followed” surveillance and the two controlled buys, supplied a sufficient nexus to search the Walnut residence. Nor did the court analyze the Leon good-faith exception or any other alternative grounds. Those issues remain untouched because the procedural bar controlled the outcome.

Impact and Practical Implications

Although unpublished and therefore nonbinding, this decision crystallizes several practical lessons for litigation in the Sixth Circuit:

Preservation Demands Precision: Defense counsel must be exact in framing suppression challenges. An explicit concession—“No, we’re not saying the house”—will be treated as waiver. Once waived, the issue is unreviewable on appeal, even for plain error.
Record Clarity Matters: Trial courts should continue to solicit clarifications, as the district judge did here, to delineate what is genuinely at issue. Clear colloquies reduce uncertainty and conserve judicial resources by focusing factual development on live disputes.
Government Strategy: Prosecutors should highlight explicit defense concessions and reliance by the district court to defeat appellate challenges. Building a record of the defense’s intent to abandon an argument can be outcome-determinative.
Appellate Practice: Counsel contemplating appeal should review suppression transcripts closely. Where express disavowals appear, appellate arguments should pivot to preserved issues or to claims not extinguished by waiver (e.g., sentencing challenges, other evidentiary rulings), rather than attempting to relitigate waived Fourth Amendment issues.
Substance Deferred: Because the panel resolved the case on waiver, it provided no new guidance on the nexus required to search a residence based on controlled buys and post-transaction surveillance. Practitioners must look to other Sixth Circuit authorities for that substantive standard.
Unpublished but Persuasive: Even “not recommended for publication” decisions can be cited for persuasive value under Sixth Circuit practice. This opinion adds to a growing body of circuit case law emphasizing that explicit concessions at suppression hearings are fatal to later appeals on those points.

Complex Concepts Simplified

Waiver vs. Forfeiture:
- Forfeiture is the failure to timely assert a right—often the result of oversight. Forfeited issues, in some circumstances, may still be reviewed for plain error.
- Waiver is the intentional relinquishment of a known right—an affirmative decision to abandon an argument. Waived issues are not reviewed on appeal.
- In practice: Saying nothing is more likely to be forfeiture; saying “we are not challenging X” is waiver.
Invited Error:
- A related concept where a party induces or invites the court to take a course of action and later cannot complain about the result. It sits on the same continuum as waiver and forfeiture and reflects intentionality in shaping the proceedings.
Standard of Review in Suppression Appeals:
- Factual findings: Clear error (deferential).
- Legal conclusions (e.g., probable cause, Fourth Amendment application): De novo (non-deferential).
- Forfeited issues: Sometimes reviewed for plain error; waived issues: not reviewed.
Nexus to a Residence (general concept):
- To search a residence, the Fourth Amendment requires a fair probability that evidence of a crime will be found there, not just at the place of the observed transactions.
- Surveillance linking a suspect’s movements to a residence and controlled buys can be relevant, but whether they establish a sufficient nexus depends on the totality of the circumstances.
- In this case, the court did not decide the nexus issue because the challenge was waived.

Conclusion

United States v. Kevin Smith reinforces a procedural rule with significant practical bite: when defense counsel explicitly disavows a challenge to part of a warrant or search at a suppression hearing, the issue is waived and cannot be revived on appeal. The panel’s application of the waiver–forfeiture continuum—drawing on Carter, Olano, Walker, Holland, Clariot, Noble, Clark, Mabee, and Abdi—demonstrates a consistent Sixth Circuit approach: explicit, on-the-record concessions are determinative. Because counsel told the district court that “the house” was not at issue, the Sixth Circuit declined to reach the merits of the probable-cause challenge to the Walnut residence and affirmed the convictions and sentence.

The decision’s broader significance lies in its message to practitioners: clarity and precision at suppression hearings control appellate options. To preserve challenges, counsel must avoid foreclosing them in the trial court; conversely, the government should build a record of concessions where they occur. While unpublished, this opinion adds persuasive force to a line of Sixth Circuit authority emphasizing that explicit disavowals at the suppression stage preempt later appellate review.