BLOG BULLETS:

• The government can waive its right to contest standing by making contrary assertions in court proceedings, acquiescing in contrary findings, and/or failing to raise the question in a timely fashion.
• The “contrary assertions” may be in other proceedings in the case; several Ninth Circuit cases recognize that the government can’t make inconsistent arguments by, for example, arguing the defendant did not possess or own property when contesting standing in a suppression hearing and then arguing that the defendant did possess or own the property when seeking to prove guilt at trial.
• This doesn’t relieve the defendant of his or her burden of proving standing, but it can help counter a government lack of standing argument on appeal.

 

NOW THE BLOG:

I couldn’t let one of my points in last week’s post go by without noting some really good Ninth Circuit case law that creates a helpful caveat.  I quoted the Seventh Circuit case of United States v. Ruth, 65 F.3d 599 (7th Cir. 1995), in which the court stated, inter alia, that “it is almost impossible to find a privacy interest because this interest depends, in part, on the defendant’s subjective intent and his actions that manifest that intent.”  Id. at 605.  You should be aware that there’s some really good Supreme Court and Ninth Circuit case law – cut back on somewhat, but still helpful – that creates an important caveat to this view.

First, the government can waive its right to make a lack of standing argument.  As both the Supreme Court and the Ninth Circuit have recognized, “[t]he government . . . may lose its right to raise [a defendant’s lack of a reasonable expectation of privacy] . . . when it has made contrary assertions in the courts below, when it has acquiesced in contrary findings by those courts, or when it has failed to raise such questions in a timely fashion during the litigation.”  Steagald v. United States, 451 U.S. 204, 209 (1981), quoted in United States v. Guthrie, 931 F.2d 564, 569 (9th Cir. 1991).
Second, the “contrary assertions” may be in proceedings outside the suppression hearing.  While an automatic standing rule formerly created by the Supreme Court has since been disavowed, see United States v. Salvucci, 448 U.S. 83 (1980) (overruling Jones v. United States, 362 U.S. 257 (1960)), that “does not permit the government to argue possession but deny expectation of privacy where the circumstances of the case make such positions necessarily inconsistent.”  United States v. Issacs, 708 F.2d 1365, 1368 (9th Cir. 1983).  As put in United States v. Bagley, 772 F.2d 482 (9th Cir. 1985), “[t]he government may not argue the facts both ways in order to defeat an expectation of privacy.”  Id. at 489.

Issacs and Bagley were limited by the Ninth Circuit in United States v. Singleton, 987 F.2d 1444 (9th Cir. 1993) – Issacs on the ground that it simply rejected a government argument that the defendant could not deny ownership at trial and still assert standing on appeal and Bagley on the ground that the jury had implicitly found the defendant possessed the automobile in question when it found him guilty at trial. Singleton, 987 F.2d at 1448.  Still, Bagley remains good law for the proposition that the government cannot contest standing on appeal where it argued inconsistently at trial and the jury implicitly accepted that argument by finding the defendant guilty.  Compare United States v. Guthrie, 931 F.2d at 569 (distinguishing Bagley where partial acquittal showed jury did not accept government argument).

In sum, the statement from the Seventh Circuit’s Ruth case I quoted in the prior post – that it is “almost impossible” to find standing without an affidavit or testimony from the defendant – isn’t true where the government argues possession or ownership at trial and the jury finds the defendant guilty.  Though it might not get you an evidentiary hearing after the fact – which was the subject of my last post – it will get you past a standing challenge on appeal.