Federal Prosecutors in Lexington, Kentucky: "Oops"

There is a lot to like about United States v. Noble, No. 13-6056, though I doubt many federal prosecutors share my excitement.  Particularly federal prosecutors in Lexington, Kentucky.

Courtney Noble was a passenger in a Chevrolet Tahoe driven by Marcus Adkins.  Law enforcement suspected the vehicle to be associated with a drug trafficking ring and conducted a traffic stop. Noble was "very nervous."

Adkins consented to a search of the vehicle. In order to conduct the search, police "removed Noble from the Tahoe and frisked him for weapons on the basis of Noble's nervousness, the fact that the Tahoe was suspected in a DEA investigation, and that [an officer's] training told him that drug traffickers are often armed."  Police discovered drugs, paraphernalia, and a firearm on Noble's person. Both men were charged with conspiracy, along with Dena Brooks, who was later found in a hotel room associated with the conspiracy.

Noble moved to suppress the evidence found during the frisk, and Adkins and Brooks joined the motion. The district court denied the motion to suppress, and all three defendants appealed.

The Sixth Circuit found that the search of Noble was unreasonable under the Fourth Amendment and vacated Noble's conviction.

But that left the court with "an awkward problem": neither Adkins nor Brooks can "explain[] how the frisk of Noble impacts their Fourth Amendment rights."  And that is because they obviously lack Fourth Amendment "standing" to object to the unreasonable search of Noble.  Their motions to suppress had no merit.

But it was their lucky day.

At both the district court and in its brief on appeal, prosecutors neglected to argue that Adkins and Brooks lacked standing to object to the search of Noble's person.  Thus, in a letter to the court after oral argument, the appellate chief of their office ("and to its credit") acknowledged that the government had "waived" the issue for appeal.

Facing an open question in the Sixth Circuit and a split of authority elsewhere, the court "join[ed] the majority of circuits to have considered this issue" and held that "the government may forfeit or waive its objection" to Fourth Amendment standing.  The court explained,

we would allow the government to raise an objection to a defendant's Fourth Amendment standing for the first time on appeal, provided that the government can show that the defendant plainly lacked standing and that our failure to recognize it would "seriously affect[] the fairness, integrity or public reputation of judicial proceedings." However, if the government fails to raise the issue in its opening brief on appeal, then the objection is waived. 

Here, because the government missed the issue of Fourth Amendment standing not only at the district court but also in the opening brief on appeal, both Adkins and Brooks got a windfall. Their convictions were vacated just like Noble's.

Judge Moore wrote the opinion and Judge Tarnow joined. Judge Kethledge dissented from the Fourth Amendment analysis alone, finding the "question . . . close" but ultimately concluding that the police were reasonable to ensure that Noble was not armed during the search of the vehicle.