PATRICK J. SCHILTZ, District Judge.
A jury convicted defendant Rodney Foster of unlawfully possessing a firearm and ammunition. After trial, the Court granted Foster's motion for acquittal notwithstanding the verdict because the Court decided, after hearing the evidence presented
The government now moves for reconsideration of the Court's order directing Foster's acquittal. As a procedural matter, the government brings its motion for reconsideration under United States v. Healy, 376 U.S. 75, 78-80, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964), and United States v. Ibarra, 502 U.S. 1, 6-7, 112 S.Ct. 4, 116 L.Ed.2d 1 (1991), which allow such motions even though the Federal Rules of Criminal Procedure do not expressly authorize them.
As a substantive matter, the government argues that Foster lacked Fourth Amendment "standing" to challenge the admission of the gun and that the Court therefore erred in holding that the gun was inadmissible. (The government does not ask the Court to reconsider its decision to suppress the ammunition.) The gun was recovered from a car in which Foster was a passenger. According to the government, the Court should have denied Foster's motion to suppress the gun because, regardless of whether the search of the car was lawful, Foster did not own the car, but was merely a passenger, and thus the search of the car could not have violated Foster's Fourth Amendment rights under Rakas v. Illinois, 439 U.S. 128, 148-49, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).
As a general rule, a search cannot violate a person's Fourth Amendment rights unless the person has a reasonable expectation of privacy in the place searched—whether it be a home, a car, or somewhere else. Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) ("[I]n order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable...."). In the past, the question of whether such a reasonable expectation of privacy exists has often loosely—and misleadingly—been referred to as a question of Fourth Amendment "standing." See United States v. Green, 275 F.3d 694, 698 n. 3 (8th Cir.2001).
The government did not make its "standing" argument to the magistrate judge who first heard argument on Foster's motion to suppress the gun. Or to the undersigned in response to Foster's objection to the magistrate judge's recommendation that the Court deny the suppression motion. Or at any time before trial. Or at any time during trial. Or after trial, in response to Foster's post-trial motion for a judgment of acquittal and for reconsideration of the Court's earlier suppression order. Only now—after the pretrial proceedings, after the trial, and after the post-trial proceedings—does the government contend, for the first time, that Foster lacked "standing" to seek suppression of the gun.
The government does not explain its failure to raise its "standing" argument earlier. Instead, the government merely contends that Fourth Amendment "standing" is jurisdictional and that, as a result, the government's challenge to Foster's "standing" is unwaivable. Gov't Mot. Reconsider. at 3-4 [Docket No. 107]. In support of this contention, the government relies on a single decision of the Eighth Circuit—United States v. Rodriguez-Arreola, 270 F.3d 611 (8th Cir.2001).
This Court must ordinarily follow Eighth Circuit precedent regardless of whether that precedent is, in this Court's opinion, correctly decided. But when a decision of the Eighth Circuit conflicts with a decision of the United States Supreme Court, this Court must, of course, follow the decision of the United States Supreme Court. That is the situation here, as Rodriguez-Arreola's holding about Fourth Amendment "standing" directly contradicts the holding of a binding Supreme Court case—Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981).
The relevant facts of Steagald are these: Police obtained an arrest warrant for a fugitive and believed that he might be found in a particular house. 451 U.S. at 206, 101 S.Ct. 1642. Based only on the arrest warrant—and without a search warrant —police searched the house. Id. at 207, 101 S.Ct. 1642. They found drugs during the search, and Gary Steagald— who was not the fugitive, but who was standing outside the house at the time of the search—was charged with drug crimes based on the drugs found in the house. Id. at 206-07, 101 S.Ct. 1642. After the district court denied Steagald's suppression motion with respect to the drugs, he was convicted at trial, and the Fifth Circuit affirmed the district court's denial of the suppression motion. See id. at 207, 101 S.Ct. 1642.
The Supreme Court reversed, holding that the drugs should have been suppressed because the police violated the Fourth Amendment by searching the house without a search warrant. Id. at 222-23, 101 S.Ct. 1642. In addition, the Supreme Court expressly held that the government had waived its right to argue that Steagald lacked a reasonable expectation of privacy in—that is, lacked "standing" as to—the house whose search he challenged:
Id. at 209, 101 S.Ct. 1642 (emphasis added). Steagald leaves no doubt that, contrary to Rodriguez-Arreola, the government can waive a Fourth Amendment "standing" argument.
Further, the Supreme Court has repeatedly rejected the linguistic foundation of Rodriguez-Arreola—namely, the use of the word "standing" to describe a defendant's ability to challenge a particular search under the Fourth Amendment. Without that foundation, the argument that the government cannot waive a challenge to Fourth Amendment "standing" crumbles away. Put another way, if Fourth Amendment "standing" is not really standing (and it is not), then cases about Article III standing—in particular, cases about the jurisdictional nature of the standing requirement—are irrelevant.
The Supreme Court first rejected the phrase "standing" in the Fourth Amendment context in Rakas v. Illinois. Rakas considered "whether it serves any useful analytical purpose to consider this principle" —that is, the principle that Fourth Amendment rights are personal rights—"a matter of standing, distinct from the merits of a defendant's Fourth Amendment claim." 439 U.S. at 138-39, 99 S.Ct. 421. Rakas held that it did not: "[T]he better analysis forthrightly focuses on the extent of a particular defendant's rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing." Id. at 139, 99 S.Ct. 421. Rakas also said that it was "dispensing with the rubric of standing...." Id. at 140, 99 S.Ct. 421 (emphasis added).
Twenty years later, in Minnesota v. Carter, the Supreme Court reversed a suppression ruling from the Minnesota Supreme Court and criticized that court's use of the term "standing" in the context of a Fourth Amendment challenge. 525 U.S. at 87, 119 S.Ct. 469. Carter said: "The Minnesota courts analyzed whether respondents had a legitimate expectation of privacy under the rubric of `standing' doctrine, an analysis which this Court expressly rejected 20 years ago in Rakas." Id. (emphasis added).
The lesson of Rakas has not been lost on the federal courts of appeals. Indeed, the Eighth Circuit itself has held—before, and contrary to, Rodriguez-Arreola—that the government waived a Fourth Amendment "standing" argument. In United States v. Morales, the Eighth Circuit reversed the district court's denial of a defendant's motion to suppress evidence found in a hotel room. 737 F.2d 761 (8th Cir.1984). Morales held:
Id. at 763 (emphasis added; citations and footnote omitted). After citing Rakas, Morales relied on Steagald, saying that Morales involved factors similar to those that led the Supreme Court in Steagald to "conclude[] that the government had lost its right to challenge standing...." 737 F.2d at 764.
More recently, the Eighth Circuit recognized in United States v. Green that "`the concept of "standing" has not had a place in Fourth Amendment jurisprudence' [since Rakas]." 275 F.3d 694, 698 n. 3 (8th Cir.2001) (quoting United States v. Sanchez, 943 F.2d 110, 113 n. 1 (1st Cir.1991)). And in United States v. Reinholz, the Eighth Circuit treated the proposition that Fourth Amendment "standing" arguments are waivable as sufficiently self-evident that it held in a mere footnote: "The record is unclear as to whether Reinholz [the defendant challenging a search] had a sufficient and reasonable enough expectation of privacy in Chevalier's residence to trigger Fourth Amendment protection. The Government, however, failed to raise this issue on appeal and, therefore, it is waived." 245 F.3d 765, 773 n. 3 (8th Cir. 2001) (emphasis added).
Finally, both the Fifth and the Tenth Circuits have expressly held, contrary to Rodriguez-Arreola, that Fourth Amendment "standing" is not jurisdictional. In United States v. Pack, the Fifth Circuit, relying on Rakas, said that "the question of Fourth Amendment `standing' is not truly a question of standing in the first place, but is instead an issue of the merits of [the defendant's] claim." 612 F.3d 341, 349 n. 4 (5th Cir.2010). And in United States v. Dewitt, the Tenth Circuit found that the government had waived a Fourth Amendment "standing" challenge by failing to raise it below. 946 F.2d 1497, 1499 (10th Cir.1991). Dewitt rejected the government's argument that a Fourth Amendment "standing" challenge is unwaivable, noting that "[s]uch a proposition would be contrary to established Supreme Court case law," namely Steagald. Id. Or, as United States v. DeLuca bluntly put it, "[Fourth Amendment] standing arguments are not jurisdictional and may be waived." 269 F.3d 1128, 1135 (10th Cir.2001).
Both Steagald and Rakas preclude this Court from following Rodriguez-Arreola. Moreover, Rodriguez-Arreola conflicts with Morales, an earlier Eighth Circuit decision that the panel in Rodriguez-Arreola could not overrule and that therefore is controlling. See Kostelec v. State Farm Fire & Cas. Co., 64 F.3d 1220, 1228 n. 8 (8th Cir. 1995) (explaining that in the case of an intra-circuit conflict, the earliest decision is properly treated as controlling).
Under Steagald, Rakas, and Morales, then, the government can indeed waive the argument that a defendant challenging a search lacked a reasonable expectation of privacy in the place searched. And that is precisely what the government did in this case. By failing to argue in a timely manner that Foster lacked a reasonable expectation of privacy in the car in which the gun was found, the government has waived its right to make that argument.
Based on the foregoing and on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT the motion of the government [Docket No. 107] for reconsideration of the Court's order granting defendant Rodney Foster's motion for a judgment of acquittal is DENIED.
