Sunday, March 07, 2010

Case o' The Week: Ninth Won't "Stand" for Late-Raised Issues (Usually): Fourth Amendment Standing & Reyes-Bosque

The party didn't raise a Fourth Amendment issue in the district court, didn't offer opposing facts or testimony putting the issue in play, and didn't get around to litigating the issue until it finally hit the Ninth Circuit. Waived?

Nope. (The party was the government). United States v. Reyes-Bosque, __ F.3d __, 2010 WL 681839 (9th Cir. Mar. 1, 2010), decision available here.

Players: Decision by visiting Senior Sixth Cir. Judge Eugene Edward Siler, Jr. (right), joined by Judges Shroeder and Ikuta.

Facts: After smuggled aliens escaped out of a stash house they were discovered by the Border Patrol. Id. at *1. The agents took the aliens back to a two-bedroom unit where they had been staying (“Unit 4") and conducted a warrantless search. Id. at *1-*2. They found evidence of alien smuggling. Id. at *2. A “sweep” of the adjacent unit (“Unit 3") revealed Reyes-Bosque, and a (hiding) Mexican national, Ramirez-Esqueda, who later admitted that he was working in Reyes-Bosque’s alien-smuggling operation. Id. at *3.

Both men’s Fourth Amendment motions were denied, and they were convicted at separate trials of a variety of alien-smuggling offenses. Id. at *1, *5.

Issue(s): “Ramiriez-Esqueda argues that he has standing to challenge the search of Unit 3, because he was an overnight guest of Unit 3.” Id. at *6.

Held: “Because Ramirez-Esqueda has not presented sufficient evidence to prove that he was an overnight guest at Unit 3 and has not argued that he has standing to challenge the search on any other grounds, we conclude that he does not have standing to challenge the search of Unit 3.” Id. at *7.

Of Note: Defendant Ramirez-Esqueda did present evidence that he was an overnight guest: his own statement. Id. at *6. That evidence was undisputed – there were no contrary declarations and no opposing testimony from government witnesses. Id. at *6. Nonetheless, visiting Judge Siler here finds that Ramirez-Esqueda lacked standing – because, among other things, the defendant wasn’t “resting” inside the Unit around “8:30 or 9:00 a.m.” Id. at *6.

The panel here admittedly relies on the Ninth’s 1995 Armenta decision in reaching its standing decision, but the result is nonetheless a frustrating swipe at Fourth Amendment protections. The defense is tasked with not only establishing standing, but disproving alternate theories for the defendant’s presence in Unit 3 despite the government's failure to present evidence opposing the defendant's statement. Id. at *6.

How to Use: What exactly did the government argue in the district court, when it contested Ramirez-Esqueda’s standing? Well, turns out “the government did not raise the issue of standing before the district court.” Id. at *6 n.3 (emphasis added).

If the government didn’t contest the defendant’s standing during the suppression litigation, how in the world did Ramirez-Esqueda lose on “standing” on appeal? Because, assures the Ninth, “we may consider it now.” Id.

Here’s Judge Siler’s explanation of the rule: “So long as the government did not rely on acts contrary to its standing argument before the district court, the standing issue is properly before us on appeal.” Id. The (curious) rule on the government’s ability to first challenge standing on appeal seems to hinge on whether the defense, or the government, won the suppression litigation in the district court. Id.; see also United States v. Taketa, 923 F.2d 665, 670 (9th Cir. 1991) (“Sherwin and Spilotro involved government appeals of suppression motions that had been granted. It was proper that in that circumstance the appellate courts declined to consider government arguments untimely raised. In this case, by contrast, we consider a defendant’s appeal of a suppression motion that was denied, when the question was raised in the district court. The burden of demonstrating that the evidence should have been suppressed is upon the appellants.”)

The punch line is to remember Reyes-Bosque when developing the appellate record on a motion to suppress. Even if an AUSA or district court doesn’t bother about “standing” while below, worry about the Ninth reaching out and snagging the issue on appeal (particularly troubling when, as here, it is on an under-developed factual record).

For Further Reading: Poet Ruth Stone would not be granted standing by the Ninth – she was up too early, didn’t have a key, and felt “isolated like a rabbit” in the home. See Ruth Stone, “Overnight Guest,” Poetry Magazine, June 1998, available here.

Image of the Hon. Eugene Edward Siler, Jr. from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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