Waive after Waive: Can the Government Waive a Challenge to Fourth Amendment Standing?

Background: Not All Standing is Done on the Same Legs

The most familiar idea of “standing” is based in Article III and is about whether someone can participate in the case at all. However, the term “standing” has attached itself to a narrower issue within Fourth Amendment law, despite then-Justice Rehnquist’s misgivings in Rakas v. Illinois.

Fourth Amendment standing is shorthand for the requirement that in a motion to suppress evidence from an unconstitutional search and seizure, the defendant must show that the search violated the defendant’s own personal rights of privacy, liberty, or possession. A defendant lacks Fourth Amendment standing if they attempt to suppress evidence based on the violation of someone else’s rights, for example, when a search of a car one does not own uncovers a gun that one, likewise, cannot lay claim to—the move not permitted in Rakas.

It is the responsibility of the government to bring a challenge to a defendant’s Fourth Amendment standing, but what happens when it does not do so at the district level? Is it waived in any future proceedings?

The Split

Two circuits have held that the government does not waive Fourth Amendment standing issues if it fails to raise them in district court: the First Circuit and the Eighth Circuit. The Eighth Circuit case on point, United States v. Rodriguez-Arreola, clearly states that the government does not waive a lack of Fourth Amendment standing based on a previous case pertaining to Article III standing, surely causing Chief Justice Rehnquist to spin uncontrollably in his grave:

The government cannot waive Rodriguez’s lack of standing, and therefore any argument based on waiver must fail…(“[I]t is elementary that standing relates to the justiciability of a case and cannot be waived by the parties.”).

On the other hand, seven circuits hold that the government does in fact waive Fourth Amendment standing challenges if it fails to raise them in district court, though some circuits are more lenient than others. This majority position is rooted in the idea that just because the word “standing” is involved, it does not implicate Article III jurisdictional issues—it views Fourth Amendment standing as simply shorthand for the substance of the Fourth Amendment.

Most of these circuits (namely, the Third, Fifth, Seventh, Tenth, and Eleventh) hold that the government may not raise an issue of Fourth Amendment standing for the first time on appeal. If the government fails to challenge Fourth Amendment standing on the district level, it amounts to a complete concession on the issue by the government.

The Ninth Circuit, in United States v. Paopao, gives the government some wiggle room, allowing challenges to Fourth Amendment standing to be raised for the first time on appeal. It makes clear in United States v. Ewing, however, that failure to place a challenge to Fourth Amendment standing in the appellate brief only to bring it up at oral argument is not a valid move, and amounts to a waiver of the challenge.

The latest circuit to join the waive-friendly bunch is the Sixth. United States v. Noble leans toward the Ninth Circuit’s holding, though it is not so lenient. The Sixth Circuit first criticizes the approach of the First and Eighth Circuits, noting:

“Fourth Amendment standing is akin to an element of a claim and does not sound in Article III. The government, like other litigants, therefore, can forfeit or waive an argument that defendants lack Fourth Amendment standing.”

Later, the Sixth Circuit lays out its own approach to waivability:

“[W]e would allow the government to raise an objection to a defendant’s Fourth Amendment standing for the first time on appeal, provided that the government can show that the defendant plainly lacked standing and that our failure to recognize it would “seriously affect…the fairness, integrity or public reputation of judicial proceedings.” …However, if the government fails to raise the issue in its opening brief on appeal, then the objection is waived.”

Looking Forward

While the Supreme Court has released opinions concerning Fourth Amendment standing, it has not explicitly stated whether the government waives the issue if it fails to bring it up in district court. Considering the precedent of Rakas, if the right mix of criminal procedures twists and turns its way up to the highest Court, it would not be unreasonable to wager on the path chosen by most circuits today. For what it’s worth, however, this blogger would like to see a reexamination of the general idea that a defendant cannot acquire Fourth Amendment standing without an interest in the property searched, especially when that unconstitutional search specifically targeted that defendant.