United States of America v. Eric M. Cousin

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0069n.06
No. 10-5833
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ERIC M. COUSIN,
Defendant-Appellant.
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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

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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.
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