In July 2017, law enforcement officers in Pensacola, Florida tried to arrest Mr. Wali Ross at a motel.  He saw them and fled.  They then searched his motel room twice: first shortly after he ran, to see if he had returned to his room, and again with motel management’s permission upon check-out time.  Mr. Ross sought to suppress the evidence found in both searches.  A three-judge panel held that by the time of the second search, Mr. Ross had abandoned the room and therefore, under Eleventh Circuit precedent, he lacked Fourth Amendment “standing” to challenge that search and the Court did not have authority to hear his claim.  The Eleventh Circuit granted rehearing en banc to reconsider that precedent.

CAC filed an amicus curiae brief in support of Mr. Ross.  Our brief made three principal points.  First, the Eleventh Circuit precedent was at odds with Fourth Amendment standing and abandonment doctrines.  Second, treating abandonment as an initial jurisdictional hurdle going to the Court’s very authority to hear the claim shifted the burden from the government, which traditionally must prove an exception—like abandonment—to the Fourth Amendment’s warrant requirement, to the individual seeking to bring a Fourth Amendment claim.  That structure undermined the robust privacy protections the Fourth Amendment was adopted to provide.

Third, treating abandonment as jurisdictional undermined courts’ ability to properly analyze how the Fourth Amendment applies to modern technology.  The types of “papers and effects” the Framers adopted the Fourth Amendment to protect are now accessible through the technological devices people carry on their persons everywhere, and as the Supreme Court has made clear, established doctrinal rules must be applied carefully, and sometimes differently, in cases involving new technology.  Treating abandonment as jurisdictional precludes courts from engaging in the nuanced merits analysis that is necessary to give full force to the rights the Fourth Amendment was meant to protect.

The en banc Eleventh Circuit overruled its previous case law treating abandonment as jurisdictional and remanded the case to the original panel for further proceedings.  In correcting its previous judgment, the court held that “abandonment implicates only the merits of [a] Fourth Amendment Claim, not [] standing in the Article III sense,” and thus recognized that “if the government fails to argue abandonment, it waives the issue.”  In abrogating its prior rule, the Eleventh Circuit joins the majority of circuit courts in “treat[ing] abandonment as an issue that runs to the merits of a suspect’s Fourth Amendment challenge, rather than his Article III standing.”