The issue of standing usually arises when a defendant seeks to invoke the exclusionary rule7 and suppress evidence from a search even though the defendant’s Fourth Amendment rights were not infringed. For example, the Sixth Circuit has held that drivers lack Fourth Amendment standing to challenge the “personal search of the passengers in their cars or the admissibility of the contraband found on them.”8 Thus, if a police officer searches a passenger and finds some evidence of wrongdoing, the driver cannot successfully move to suppress that evidence because his Fourth Amendment rights were not infringed.9
However, if the government does not argue that the defendant lacks standing, a defendant whose rights were not infringed may successfully bring a motion to suppress. Furthermore, because Fourth Amendment standing is not a question of jurisdiction or Article III,10 some circuits hold that the question of standing can be waived if the government fails to raise the issue in the district court.11 At least one other circuit, the Eighth Circuit, takes the opposite approach and holds that the government cannot waive the issue of Fourth Amendment standing.12
Even within the circuits that agree that Fourth Amendment standing can be waived, there is division about how to treat the government’s failure to raise the standing argument in the district court. The most common approach suggests that “the government’s failure to argue the standing issue before the district court represents a waiver that fully extinguishes the argument, even if the government catches its error on appeal.”13 The Ninth Circuit, on the other hand, takes a hybrid approach and looks to the party bringing the appeal to determine whether standing arguments can be waived.14 If the government appeals a grant of a suppression motion and did not making standing arguments in the district court, the Ninth Circuit treats the standing issue as waived.15 However, if the defendant appeals a denial of his suppression motion and the government did not make standing arguments in the district court, the Ninth Circuit allows the government to contest the defendant’s standing for the first time on appeal.16
All of these different approaches make some sense. The Eighth Circuit is correct that a claim brought without standing has fundamental justiciability problems.17 Furthermore, allowing a waiver of this argument would permit more people to invoke the exclusionary rule, which may or may not be a good thing. But the rule followed by the majority of circuits also makes a good point: if there is no grounding in statute or Article III, then the general rule that a litigant waives or forfeits18 an argument if it is not made in the district court should be followed. The Ninth’s Circuit’s hybrid approach also seems sufficient as it looks to the party bringing the appeal and the parties’ respective burdens to determine whether waiver is appropriate. Although each of these arguments on their own is logically sound, they are irreconcilable.
The cases evaluating this topic do not look to the rationales behind the Fourth Amendment or the exclusionary rule, yet these rationales provide important justifications that could change the analysis of whether standing arguments should be waived. As noted above, whether a circuit allows waiver will affect the number of defendants who can successfully invoke the exclusionary rule and prevail on their motions to suppress. Theoretically, if a circuit allows waiver of standing arguments, more defendants could invoke the exclusionary rule and prevail on their motions to suppress. If a circuit does not allow waiver, and instead allows the government to raise standing challenges on appeal, fewer defendants might prevail on their motions to suppress. The rationales behind these original rights and rules could provide additional insight to the issue of waiver.
On the one hand, the exclusionary rule is an important check on police misconduct as it discards evidence obtained illegally.19 Furthermore, the main purpose of the Fourth Amendment is to ensure and protect individual privacy. Courts might prefer waiver of these arguments because it errs on the side of protecting defendants’ privacy and Fourth Amendment rights. However, as Justice Rehnquist once noted, “[e]ach time the exclusionary rule is applied it extracts a substantial social cost for the vindication of Fourth Amendment rights. Relevant and reliable information is kept from the trier of fact and the search for truth at trial is deflected.”20 The idea that the exclusionary rule helps the guilty evade justice, in conjunction with the fact that waiver would allow defendants whose rights were not infringed to invoke this rule, suggests that waiver may not be the appropriate rule.
This Comment will also analyze this issue of waiver by comparing it to other types of arguments that a defendant either can or cannot waive. The general rule for both criminal and civil cases is that arguments not made in the district court are waived and cannot be brought for the first time on appeal.21 However, there are several crucial exceptions in the criminal context to this raise-or-waive rule. These include the court’s lack of jurisdiction,22 plain errors affecting substantial rights,23 and petitioner’s lack of an opportunity to raise objections at trial.24 Of these three, the exception of plain error review is the most relevant to Fourth Amendment standing arguments. Although the rationales underlying standing and the exclusionary rule are interesting, relying on the general rule of waiver and its few exceptions provides a firmer ground on which courts should base their analysis.
This Comment will first analyze the approaches taken by the various circuits. The next section will scrutinize these approaches against the rationales underlying the exclusionary rule. And finally, this Comment will compare the circuits’ approaches against the general rule of waiver with a particular focus on plain error review. Ultimately, Supreme Court precedent, concerns of individual privacy and deterrence of police misconduct, as well as the general rule of waiver suggest that waiver of standing arguments might be the better approach.
The Eighth Circuit holds that the government cannot waive a Fourth Amendment standing argument, even if the government failed to bring the argument in the district court.25 In United States v. Rodriguez-Arreola, the defendant argued that the government waived any arguments about Fourth Amendment standing because the government “never raised the argument before the district court.”26 The district court granted the defendant’s motion to suppress evidence, and the government appealed that decision.27 On appeal, the government argued that the defendant lacked Fourth Amendment standing, as the challenged search infringed on the rights of the defendant’s companion rather than the rights of the defendant.28 Despite the fact that the government did not make this argument in the district court, the Eighth Circuit held that “the government cannot waive [defendant’s] lack of standing, and therefore any argument based on waiver must fail.”29 The court further noted: “it is elementary that standing relates to the justiciability of a case and cannot be waived by the parties.”30 This rule is an outlier among circuits and does not appear to have much support even within the Eighth Circuit.31
The majority of circuits hold that the government’s Fourth Amendment standing arguments are waived if not brought in the district court. The Third, Fifth, Sixth, Seventh, Tenth, and Eleventh Circuits all follow the simple rule that “the government’s failure to argue the standing issue before the district court represents a waiver that fully extinguishes the argument, even if the government catches its error on appeal.”32 These circuits rely on the two Supreme Court cases of Rakas v. Illinois33 and Steagald v. United States.34 In Rakas, the Court declined to extend its definition of Fourth Amendment standing and reiterated that defendants must demonstrate that their personal rights were violated in order to invoke the exclusionary rule.35 Importantly, the Court also noted that Fourth Amendment standing is a different concept than jurisdictional standing, and is “more properly subsumed under substantive Fourth Amendment doctrine.”36
In Steagald, the Court held that the government “may lose its right to raise factual issues of [standing] before this Court when it has made contrary assertions in the courts below.”37 Agents entered the defendant’s house to execute an arrest warrant for another individual.38 Agents then searched the home without a warrant, found cocaine, and arrested and indicted the defendant for drug charges.39 At the trial court and in the brief to the Supreme Court, the government argued that the house searched was the defendant’s primary residence and that the defendant had significant ties to the property, but at oral argument the government argued that the defendant lacked Fourth Amendment standing and a reasonable expectation of privacy in the home.40 Noting that the standing argument was in direct contradiction with the government’s argument in the district court, the Court suggested that standing arguments could be waived if the government was contradicting its earlier stance.41 Thus, the crucial issue for the Court in Steagald was whether the government’s argument was contradicting or hindering findings of fact in the trial court.
The circuits distilled the majority rule from the separate rulings of Rakas and Steagald. The circuits tend to focus on the fact that Fourth Amendment standing is a different concept than jurisdictional standing, as noted by Rakas.42 The Sixth Circuit noted in United States v. Noble43 that “Fourth Amendment standing is akin to an element of a claim and does not sound in Article III.”44 The Third Circuit similarly noted that: “Fourth Amendment standing is one element of a Fourth Amendment claim, and does not implicate federal jurisdiction. Consequently, standing can be conceded by the government, and it is also subject to the ordinary rules that an argument not raised in the district court is waived on appeal.”45 The Sixth Circuit also looked to Steagald to support its proposition that “the government, like other litigants, can forfeit or waive an argument that defendants lack Fourth Amendment standing.”46
The two cases of Rakas and Steagald do support the majority rule that the standing arguments can be waived by the government. However, these cases leave much to be decided. Steagald speaks in permissive terms (the government “may lose its right”), but does not state whether waiver is required or automatic.47 Furthermore, it is unclear under Steagald if the government waives this argument only if it made contradictory assertions below, as opposed to not making any assertions at all. Steagald does not specify whether the government can retain this right in certain circumstances, even if it did not make the argument below.
The Ninth Circuit has developed its own approach to the issue of waiver. It looks to the party bringing the appeal, as well as to arguments made below, to determine if the issue was waived. If the government appeals the grant of a suppression motion and it did not make any arguments about standing in the district court, the Ninth Circuit treats the issue as waived.48 However, if the defendant appeals the denial of his suppression motion, and the government did not make any standing arguments below, the government is allowed to raise standing arguments for the first time on appeal.49 When a defendant appeals the denial of his motion, the burden is on him to prove standing.50 Because this burden is on the defendant, the Ninth Circuit reasoned in United States v. Taketa,51 it is acceptable for the government to raise challenges to the defendant’s standing for the first time on appeal.52
The Ninth Circuit does have an exception to this general rule, however, for situations in which the government conceded in the trial court that the defendant had standing or made arguments that the defendant had a reasonable expectation of privacy in the area searched.53 Even if the defendant is appealing the denial of his motion, the government cannot challenge the defendant’s Fourth Amendment standing on appeal if the government “assented to contrary findings of fact.”54 This exception seems to follow the Court’s concern in Steagald, that the government can argue or concede one thing in the trial court and then argue another on appeal.
The concept of waiver does not exist in a vacuum, but rather is informed by the underlying rationales for the Fourth Amendment and the exclusionary rule. These rationales, which have not been interrogated by lower courts and circuits addressing this issue, provide a useful analytical framework.
As noted by Anthony Amsterdam, two competing perspectives dominate Fourth Amendment jurisprudence.55 On the one hand, there is the “atomistic” perspective, which is the idea that the Fourth Amendment “should be viewed as a collection of protections of atomistic spheres of interest of individual citizens.”56 The Fourth Amendment protects isolated individuals as “atoms” by protecting “my person and your house and her papers and his effects.”57 The second is the “regulatory” perspective: the idea that the Fourth Amendment functions “as a regulation of governmental conduct.”58 Instead of intending to protect individual rights, the Fourth Amendment intends to protect the collective people from government intrusion, usually by deterring police misconduct.59 These two ideas help to explain the rationales underlying the exclusionary rule and standing.
The exclusionary rule follows the regulatory model, as its main purpose is to deter police misconduct in order to protect society as a whole.60 In Mapp v. Ohio,61 the Court noted that “the purpose of the exclusionary rule ‘is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.’”62 Because the purpose of the rule is to deter, the rule does not focus on protecting the rights of individuals or remedying the defendant’s injury, but rather on excluding illegally obtained evidence as a punishment for violators.63 Furthermore, the exclusionary rule fits the regulatory model because it focuses on protecting the rights of all people, not the rights of discrete individuals. Importantly for critics, the rule protects the rights of all people by protecting the rights of mostly guilty people.64 In theory, by protecting the rights of the guilty and deterring police misconduct, the exclusionary rule helps protect the rights of the innocent.
The idea of standing rests on a wholly different rationale. The idea that a person may only raise a Fourth Amendment challenge if he was personally a victim of unlawful police activity is based on the “atomistic” perspective, as it rests on the idea that the Fourth Amendment is meant to protect only the rights and interests of individuals. The doctrine of standing does not engage with regulatory concerns of deterrence or protecting the rights of the collective. But standing does more than focus on the rights of individuals: it limits the exclusionary rule to only those defendants whose rights were personally infringed. Thus, the concept of standing restricts the pool of people who can invoke the exclusionary rule and suppress evidence. This sets up a strange, and perhaps irreconcilable, tension as standing appears to be in direct conflict with the goals and purpose of the exclusionary rule.65
Yet the Supreme Court seems to have embraced this tension, as it has noted that the concept of standing only makes sense if it is treated as a meaningful limitation on the exclusionary rule, and that this idea is an important policy consideration underlying the doctrine of standing.66 When deciding to limit the exclusionary rule to defendants that had standing, the Court noted that “the additional benefits of extending the exclusionary rule to other defendants [beyond those with standing] would [have to] justify further encroachment on the public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth.”67 The doctrine of standing seems to be the Court’s determination that the exclusionary rule imposes costs on society (by allowing criminals to go free), and that such costs must be limited. This irreconcilable doctrinal tension between the exclusionary rule and standing might not be a defect of the system, but perhaps a crucial feature.
It is with these considerations in mind that one could consider the issue of waiver. Whether the government waives a challenge to Fourth Amendment standing implicates the concerns and rationales underlying the Fourth Amendment and the exclusionary rule. If the government does waive a challenge to a defendant’s Fourth Amendment standing, more defendants will be able to invoke the exclusionary rule. Waiver, in essence, limits or checks the doctrine of standing by allowing some defendants who do not have standing to slip through the cracks and invoke the exclusionary rule even though they do not technically have standing to suppress evidence. In doing so, waiver makes standing a less effective check on the exclusionary rule. Thus, there is a scheme in which the exclusionary rule checks police misconduct, standing checks the exclusionary rule, and waiver checks challenges to standing. Waiver of challenges to standing might find support from those who think that the exclusionary rule is crucial to deterring misconduct and that standing unnecessarily constrains the exclusionary rule.
If courts did not allow waiver of the government’s challenge to Fourth Amendment standing, and if the government were allowed to challenge a defendant’s standing on appeal, fewer defendants would be able to invoke the exclusionary rule and suppress evidence. The Eighth Circuit’s rule of not allowing the government to waive challenges to standing essentially creates a dual check on the exclusionary rule. The doctrine of standing already limits the pool of defendants who can invoke the exclusionary rule and suppress evidence. Allowing the government to reargue in the appellate court that the defendant lacks standing would further limit the number of defendants who could invoke the exclusionary rule. For those who think that the exclusionary rule imposes costs that are too great, and that the rule allows too many criminals to go free, the Eighth Circuit’s rule might appear to be the better approach.
A potential problem with this analysis is that it allows courts to determine and analyze whether waiver is appropriate based on whether they support the exclusionary rule. Relying on the exclusionary rule as a justification adds an element of political divisiveness to a procedural issue that might be best be resolved through other forms of analysis.
A more useful analysis involves looking to the general rule of waiver and its few exceptions and investigating how this should apply to waiver of standing arguments. As noted above, the general rule for civil and criminal cases is that arguments not brought in the district court are waived on appeal.68 There are several crucial reasons for this general rule. First, it “induce[s] the timely raising of claims and objections, which gives the district court the opportunity to consider and resolve them.”69 Second, it also enables the record to be developed “when the recollections of the witnesses are freshest.”70 And third, district courts are often in the best position to consider and determine relevant facts as well as potential errors.71 By timely raising these arguments and issues in the district court, “the district court can often correct or avoid the mistake so that it cannot possibly affect the ultimate outcome.”72 This rule also prevents litigants from “sandbagging” the court—“remaining silent about [an] objection and belatedly raising the error only if the case does not conclude in his favor.”73 Despite the important rationales of this general rule, there are several exceptions that allow arguments to be raised for the first time on appeal. These include lack of jurisdiction,74 lack of an opportunity to raise the issue at trial,75 and plain errors affecting substantial rights.76 This section will compare Fourth Amendment standing to the exceptions of jurisdiction and plain errors.77
The most straightforward exception to the general rule is a court’s ability to hear arguments about jurisdiction. Jurisdictional issues can never be waived by the parties, and a court can hear arguments about jurisdiction on appeal regardless of whether those arguments were brought below.78 As the Second Circuit has noted, “it is well settled that lack of federal jurisdiction may be raised for the first time on appeal, even by a party who originally asserted that jurisdiction existed or by the Court sua sponte.”79 And this rule applies for issues of Article III jurisdiction as well as statutory jurisdiction.80
As noted by several circuits that adopt the majority rule, Fourth Amendment standing is not a jurisdictional concept, but is rather “akin to an element of a claim and does not sound in Article III.”81 Although Fourth Amendment standing seems to implicate justiciability in a similar way to jurisdiction, courts treat Fourth Amendment standing as substantive Fourth Amendment doctrine, not as a jurisdictional issue or requirement.82 Because Fourth Amendment standing “does not implicate federal jurisdiction,”83 the majority of circuits found that Fourth Amendment standing should not fall under this exception to the general rule of waiver.
Another crucial exception to the general rule of waiver is the plain error rule. In the absence of a plain error, issues not raised before the trial court “will be deemed waived on appeal.”84 The plain error rule comes from Federal Rule of Criminal Procedure 52(b), which “permits an appellate court to recognize a plain error that affects substantial rights even if the claim of error was not brought to the district court’s attention.”85 Under the Supreme Court’s interpretation of this Rule, an appellate court may correct an error not raised at trial only when the appellant demonstrates:
(1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant’s substantial rights, which in the ordinary case means it affected the outcome of the district court’s proceedings; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.86
Even if an appellate court concludes that an error occurred, it may still affirm the trial court’s judgment by finding that it was a “harmless” error.87
Meeting all four of the plain error prongs is quite difficult.88 The Supreme Court has found that many types of errors are not plain errors but rather harmless errors that do not warrant reversal, including: coerced confessions,89 certain grand jury procedural violations,90 variances between the indictment before the grand jury and the proof offered at trial,91 misjoinder of defendants of offenses,92 failure to determine if the defendant understands the nature of the charges,93 juror misconduct,94 prosecutorial misconduct,95 errors in jury instructions,96 sentencing errors,97 and the absence of a defendant from trial proceedings.98
Certain types of errors, termed “structural errors,” are never considered harmless and are corrected regardless of their effect on the outcome.99 Structural errors involve “structural defects in the trial mechanism” so serious that “a criminal trial cannot reliably serve its function as a vehicle for determining guilt or innocence.”100 These errors affect substantial rights that are fundamental to a fair trial, and it is often difficult to assess the actual effect of these errors.101 This category is very narrow and includes total deprivation of counsel,102 lack of an impartial judge,103 violation of the right to a public trial,104 right to self-representation at trial,105 and racial discrimination in grand jury selection.106 A crucial difference between structural errors and plain errors is that the former can only be raised on appeal if it was preserved in the district court. If the error was not preserved, then the courts engage in plain error review instead of structural error review. However, defendants can point to the fact that the error they are asserting on plain error review would normally be a structural error, which could help the defendant meet the third prejudice prong of plain error analysis.
Fourth Amendment standing has never been deemed a structural error, and it should not be. Fourth Amendment standing is almost always invoked by the government trying to quash a defendant’s motion to suppress, whereas structural errors turn on a fundamental violation of the defendant’s rights. Furthermore, Fourth Amendment standing does not implicate “structural defects in the trial mechanism” but rather serves as a counter to a defendant’s argument that evidence should be excluded. Because Fourth Amendment standing does not fit into the structural error exception the question then becomes, should courts review Fourth Amendment standing for plain error?
By occasionally and inconsistently applying plain error review, the courts created an abundance of confusion.113 Attempting to dispel some of this confusion, the rule makers amended Rule 12(e) in 2014 and dropped the word “waives.”114 The Advisory Committee Notes to Rule 12(e) mention that the Committee realized the confusion created by the use of the term “waives” (with some courts treating the phrase as completely barring appellate review and others allowing some claims to proceed under plain error review) and intentionally removed that term “to avoid possible confusion.”115 Importantly, the rule makers did not address whether plain error review should apply to motions to suppress now that the rule has changed, instead noting that it is up to “the Courts of Appeals to decide if and how to apply Rules 12 and 52 when arguments that should have been the subject of the [motion to suppress] are raised for the first time on appeal.”116
The amendments to Rule 12 leave open the possibility for plain error review to apply to motions to suppress in general, and to Fourth Amendment standing specifically. Several circuits have noted that plain error review could apply to motions to suppress in light of the 2014 Amendment, but none have actually applied plain error review in the Fourth Amendment standing context.117 At least two circuits, the D.C. Circuit and the Sixth Circuit, noted that plain error review could apply to the government’s Fourth Amendment standing arguments, but in each case the court declined to apply plain error review and instead held that the government’s standing arguments were waived and could not be reached by the appellate court.118
In light of the 2014 amendments that suggest that plain error review applies to motions to suppress, two circuits suggested that plain error review could apply to the government’s Fourth Amendment standing objections.119 Courts should not take this approach and should instead hold that plain error review does not apply to the government’s Fourth Amendment standing arguments. Rather, courts should hold that the government’s failure to object to a defendant’s Fourth Amendment standing in the trial court should fall under the general raise-or-waive rule and not under the plain error exception. Thus, courts should hold that failure to bring this argument in the district court represents a waiver that fully extinguishes the argument and cannot be subject to plain error review.120
There are several important policy reasons for plain error review, but they are less compelling in the Fourth Amendment standing context. First, the denial of review for plain errors encourages parties to meet deadlines and to seek leave to file late motions in the district court.121 Even though motions will be untimely, the movant will have a better opportunity to develop the factual record and establish how the error is prejudicial. Second, appellate review of plain errors that disadvantage the defendant “discourages overzealous advocacy by the government”122 by preventing the government from taking advantage of known prejudicial errors not typically noticed by criminal defendants. But finally, and most importantly, the plain error rule serves to protect “substantial rights” and to correct errors that seriously affect the integrity of the judicial proceeding.123 Although the government can also invoke plain error review, the justification behind the plain error rule seems to focus on fundamental rights of defendants and fairness in judicial proceedings; it does not focus on the government’s failure to bring certain arguments.124 Allowing the government a second opportunity to raise a defense to a defendant’s motion does not fit under the policy objectives and purpose of the plain error rule. Courts should be more concerned about allowing the government to take a second bite at the apple than the potential error of a defendant bringing a successful motion to suppress.
Furthermore, defendants cannot invoke plain error review for many significant errors that seem to fundamentally affect defendants’ rights, including prosecutorial misconduct, juror misconduct, coerced confessions, and errors in jury instructions.125 The government’s failure to raise an element of a claim or defense does not seem to be as crucial to defendants’ rights and the integrity of the judicial process as coerced confessions and juror misconduct. Yet coerced confessions and juror misconduct, as well as many other significant errors, are not subject to plain error review. Allowing plain error review for the government’s failure to raise Fourth Amendment standing gives the government an unfair and unwarranted advantage. Allowing plain error review in this context does not serve the purpose of the plain error rule and might undermine it by giving the government an unfair advantage.
Unlike the purposes of the plain error rule, the policy concerns underlying the general rule of waiver are compelling in this context. As noted above, the general rule of waiver “induce[s] the timely raising of claims and objections, which gives the district court the opportunity to consider and resolve them.”126 Furthermore, district courts are often in the best position to consider and determine relevant facts as well as potential errors.127 By timely raising these arguments and issues in the district court, “the district court can often correct or avoid the mistake so that it cannot possibly affect the ultimate outcome.”128 This rule also prevents litigants from “sandbagging” the court—”remaining silent about [an] objection and belatedly raising the error only if the case does not conclude in his favor.”129 These concerns are particularly compelling here. Raising the issue of Fourth Amendment standing early saves time and cost, as the district court could more swiftly adjudicate a defendant’s motion to suppress. This is particularly relevant here because Fourth Amendment standing inquiries are fact specific, as they often involve questions about the defendant’s activity and relationship to other parties in the proceeding.130 Requiring the government to raise this issue early would help the factual record develop quickly and fully. This would also prevent the costly appeal of an issue that should be adjudicated in the district court. These concerns and incentives are crucial in this setting, and courts should incentivize the government to raise Fourth Amendment standing arguments in the district court.
Without looking to concerns of deterrence of police misconduct, the exclusionary rule, or the rationale underlying standing, the majority of circuits has determined that waiver is appropriate.131 These circuits look to Supreme Court precedent of Rakas and Steagald, as well as to the general rule that arguments not made in the district court are waived.132 On their own, the arguments put forth in favor of the majority rule are quite convincing. They become even more so when one considers the importance of the exclusionary rule, and the problems with the dual check on the exclusionary rule created by the Eighth Circuit’s approach. The circuits that do not yet follow the majority rule should consider switching to the majority rule.
Although the Ninth Circuit’s hybrid approach might seem appealing as it allows waiver in some circumstances and precludes waiver in others,133 it is not the ideal approach. The Ninth Circuit’s rule might make more sense than the Eighth Circuit’s in that it does not allow waiver when the defendant is bringing the appeal (and thus has the burden of proving that he has standing), but allows waiver when the government is bringing the appeal. The Ninth Circuit’s rule is better than the Eighth’s in that it contemplates some circumstances in which waiver is appropriate but not as good as the majority rule because it creates confusion as to when waiver is appropriate and gives the government a free pass for failing to make arguments that help develop the factual record.
A potential benefit to the Ninth Circuit’s rule is that it might save judicial resources by allowing the government to make what it thinks is the best argument in the district court, while still giving the government an opportunity to raise standing issues when defendants appeal. Under the majority rule, the government has to make standing arguments even if it has more compelling arguments (such as consent to the search) in order to preserve its right to bring standing arguments on appeal. The majority rule sets up scenarios in which the government might have to assert many different arguments in the district court, even when they are not compelling or necessary, just to preserve its ability to raise standing arguments should there be an appeal. In the long run, this might lead to a greater expenditure of judicial resources because the government will want to develop arguments that might not be crucial or relevant, just to preserve the potential for appeal. By allowing the government to raise Fourth Amendment standing when a defendant appeals, the Ninth Circuit’s rule might save judicial resources because it allows the government to only make the few arguments it thinks are necessary in the district court instead of throwing all possible arguments on the table to preserve arguments for appeal.
While this reasoning might seem appealing, it is quite flawed because it gives the government an unwarranted advantage in the name of judicial efficiency. Defendants do not often have this luxury; they do not get the chance to pick what they think is the best argument in the district court and then assert others on appeal. Defendants have to raise all possible arguments in the district court in order to preserve arguments for appeal, even though this might create inefficiencies and redundancies. And when defendants fail to make arguments in the district court, they have to go through rigorous plain error review which is often denied. There is no good reason to give the government this benefit while withholding it from defendants. The government should not get a special rule for Fourth Amendment standing arguments.
Furthermore, in light of the lingering confusion resulting from the plain error doctrine and its inconsistent application to motions to suppress, a baseline rule that is applied consistently to all scenarios is preferable. Regardless of which party is bringing the appeal, courts should treat similar cases alike and have one rule that they apply to a particular scenario. Courts should hold that the general rule of waiver applies to Fourth Amendment standing arguments and that these arguments cannot be brought for the first time on appeal.
Ultimately, the government’s challenge to Fourth Amendment standing should be waived if not brought in the district court. The majority rule follows Supreme Court precedent that suggests that waiver is appropriate, and it prevents standing from being an unduly burdensome check on the exclusionary rule.
Even though this procedural issue of waiver arises only in a small amount of cases, it is significant. It is raised frequently enough for most circuits to have several cases discussing the issue, and it straddles both a defendant’s procedural and substantive rights. The underlying tension between the exclusionary rule and standing make the issue an important one, as waiver tips the scale in favor of either the exclusionary rule or standing. Furthermore, waiver of Fourth Amendment standing arguments seems to fit with the policy considerations underlying the general raise-or-waive rule and does not fit into the few exceptions to this default rule. Concerns of individual privacy, deterrence of police misconduct, and baseline procedural rules suggest that Fourth Amendment standing arguments not brought in the district court should be waived.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.