In United States v. Ross, No. 18-11679 (Oct. 29, 2019) (Newsom, Wilson, Proctor), the Court affirmed the denial of a motion to suppress evidence found in two searches of a motel room.
The first search was conducted 10 minutes after the defendant fled the motel on foot. Although the government did not raise the argument below, the Court considered the government's argument that the defendant abandoned his room and therefore lacked Fourth Amendment standing to challenge the search. The Court considered that argument because, under circuit precedent, abandonment also implicated Article III standing, which was not waivable. However, the Court rejected the abandonment argument on the merits. Although the defendant had standing to challenge the search and protective sweep of the room, the Court found that it was constitutional because the officers were seeking to execute an arrest warrant, and they had a reasonable belief that the room was the defendant's and that he was inside.
The second search was conducted with the consent of hotel management after the scheduled checkout time. The Court concluded that the defendant lacked Fourth Amendment standing to challenge the search because the defendant lost any reasonable expectation of privacy in the room after checkout time. The Court held that, in general, a short-term hotel guest loses a reasonable expectation of privacy in his room after checkout, provided the guest has not asked for and received a late checkout.
Judge Newsom concurred, criticizing the circuit precedent that obligated the Court to consider the government's abandonment argument raised for the first time on appeal, because it improperly treated abandonment as part of Article III standing. He urged the full Court to reconsider that precedent, in part because the government's ability to raise that argument for the first time on appeal—"rope-a-dope, bait-and-switch, whipsaw, whatever you wanted to call it—just doesn't seem very fair."