                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0069n.06

                                             No. 10-5833

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                            FILED
                                                                                        Jan 19, 2012
UNITED STATES OF AMERICA,                          )
                                                   )                              LEONARD GREEN, Clerk
        Plaintiff-Appellee,                        )
                                                   )
v.                                                 )    ON APPEAL FROM THE UNITED
                                                   )    STATES DISTRICT COURT FOR THE
ERIC M. COUSIN,                                    )    EASTERN DISTRICT OF TENNESSEE
                                                   )
        Defendant-Appellant.                       )




        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
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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