When the Prosecution Drops the Ball in Arguing 4th Amendment Standing, Who Picks It Up?

The peculiar situation that led to U.S. v. Noble, 762 F.3d 509 (6th Cir. 2014) is the most recent installment of a difficult dilemma several courts have faced nationwide. During the appeal of a criminal trial, one of three defendants was able to successfully suppress evidence on a motion joined by the other defendants because law enforcement violated the Fourth Amendment by frisking him after a search of his co-defendant’s car. However, during that same appeal the court decided that the two co-defendants never explained why they had standing to join the motion, and also decides that they in fact lacked the standing necessary to challenge the illegal search. In another awkward twist, the government never challenged the co-defendants’ standing when they joined the original motion at the trial level. This typically means that the issue of the co-defendants’ Fourth Amendment standing is not ripe for appeal. This situation poses the difficult dilemma of whether a court should allow defendants to suppress probative evidence when they have no right to do so or forgive the government’s failure to raise the argument at the proper time, forgoing the standard rules of appellate procedure. This note will focus on what the court ought to do in order to resolve this dilemma.