4/3/2020
by: Don Samuel
Lawyers all know what the term “standing” means: It is not, when spoken in a courtroom, just a reference to what we all do when the judge (or jury) walks into the courtroom. It also describes in a formal way, the parties’ relationship to the controversy. If my neighbor to the south drives his car into the living room of the house belonging to my neighbor to the north, I can’t file a lawsuit, because I was not injured. I have no “standing” to complain. If the Georgia Legislature passes a law that provides that only people with blonde hair can receive Medicaid benefits, somebody with brown hair who lives in Alabama cannot file a lawsuit, because a person from Alabama, regardless of hair color, has no beef with the Georgia legislature. That person has no standing to complain.
In criminal cases, the issue of “standing” is not often disputed. In every case, the defendant who is charged with a crime has standing to defend against the charges. That is clear. And in all cases, the prosecutor (state or federal) has standing to bring the charges, assuming there is an allegation that a state or federal law was violated. Both parties, therefore, have standing to participate in the case.
But for the past century, an entirely different kind of “standing” has been the subject of dispute in criminal cases: specifically, prosecutors often claim that a defendant does not have “standing” to complain about a particular search that resulted in the discovery of evidence that is being used in the defendant’s prosecution. There is no doubt that the defendant has standing to defend against the charges. But if I am the defendant, do I have standing to complain about a search of my wife’s pocketbook, from which the police seized a ledger that documented all of my cocaine sales? The police did not search my pocketbook. In fact, I wasn’t even with my wife when her pocketbook was searched. The prosecutor will argue that because my belongings were not searched, I have no “standing” to raise a Fourth Amendment challenge to the use of the ledger at my trial.
The prosecutor is right. But that formulation of “standing” can be confusing, because it is entirely different than the concept of “standing” to participate as a party in the litigation.
Why is the case of United States v. Ross getting attention now? Because the Eleventh Circuit previously held that "standing" for Fourth Amendment purposes is also "jurisdictional" -- and (the earlier decision held), if the defendant does not have Fourth Amendment standing, then the prosecutor can challenge that at any time. The right to challenge a defendant's claim if the defendant lacks that kind of standing can be raised at any time. But if the government wants to challenge a defendant's standing to raise a Fourth Amendment claim, that challenge must be made in a timely manner and not for the first time on appeal. Because the Eleventh Circuit has that previous confused opinion, the Eleventh Circuit decided on March 23, 2020, that every judge in the Circuit is going to address this confusion in a case that the court agreed to hear en banc: United States v. Ross, No. 18-11679. When this case is decided, hopefully, we will all know where we stand on this issue.