United States v. Wali Ebbin Rashee Ross (11th Cir. June 2020), EN BANC

The Federal Docket

July 6, 2020

Fourth Amendment/Article III Standing – A suspect’s abandonment of privacy or possessory interest in the object of a search or seizure implicates only the merits of his Fourth Amendment challenge. The suspect does not lose his Article III standing. If the government fails to argue abandonment, it waives the issue.

Wali Ross was charged with possession of a firearm and ammunition by a convicted felon, possession of heroin with the intent to distribute, one count of firearms-related forfeiture, and one count of forfeiture related to the property and proceeds obtained by a controlled-substances violation. Ross filed a motion to suppress, arguing the search of his hotel room was a violation of his Fourth Amendment rights. The district court denied his motion.

Sitting en banc, the Court expressly overruled United States v. Sparks, 606 F.3d 1323 (11th Cir. 2015) to the extent it held that “a suspect’s alleged abandonment of a place or thing implicates his Article III standing to challenge a search of it—and, therefore, that the government cannot waive an abandonment argument.” The Court instead held that “a suspect’s alleged abandonment runs only to the merits of his constitutional claim, and not his Article III standing to challenge the search.”

The Court reasoned that that a suspect’s abandonment does not implicate his standing with respect to Article III; abandonment only implicates the merits of a Fourth Amendment claim. Fourth Amendment “standing” is determined by the existence of a reasonable expectation of privacy and is not related to standing as defined by Article III.  Instead, Article III standing restricts which litigants can assert a lawsuit in federal court as it relates to the case-or-controversy requirement.

The Court also held that, because abandonment “runs to the merits of [a] Fourth Amendment challenge,” the government waives the issue if it fails to argue abandonment.

Concurring Judge Rosebaum acknowledged that she authored the opinion in Sparks and thanked the Court for correcting the error.

Appeal from the Northern District of Florida

Opinion by Newsom, joined by W. Pryor, E. Carnes, Wilson, Martin, Jordan, Rosenbaum, J. Pryor, Branch, Grant, Luck, and Lagoa.

Concurrence by Rosenbaum

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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