§ 19.03 ILLINOIS

• Jurisdiction: United States

§ 19.03. The Law of Standing: Pre-Rakas v. Illinois

[A] In General

The law of standing took a significant turn in 1978, when the Supreme Court decided Rakas v. Illinois.¹⁸ The implications of Rakas are discussed in the next chapter section. However, to appreciate the significance of Rakas, it is helpful to understand the law preceding it.

Prior to Rakas, the Supreme Court handed down only 12 opinions dealing with the doctrine of standing.¹⁹ However, based on the Court's few opinions and lower court jurisprudence, the following summary of pre-Rakas law is possible.

A defendant had standing to raise a Fourth Amendment claim if she: (1) owned or had a possessory interest in the premises searched;²⁰ (2) was legitimately on the premises at the time of the search;²¹ (3) owned the property seized;²² or (4) had lawful possession of the property seized, such as in the status of a bailee.²³ For awhile, it also appeared to some courts and observers that one could claim standing if she was a co-defendant or co-conspirator of a person who had Fourth Amendment standing. This so-called "derivative standing" doctrine, however, was rejected by the Supreme Court prior to Rakas.²⁴

For approximately two decades, even for two years after Rakas, the Supreme Court also recognized a doctrine called "automatic standing," which is considered immediately below.

[B] Automatic Standing²

The Supreme Court unanimously held in Jones v. United States²⁶ that a defendant did not have to prove standing to raise a Fourth Amendment claim if possession of the evidence seized was a necessary element of the crime for which the defendant was being prosecuted. For example, in Jones, federal agents seized narcotics belonging to J in a search of X's apartment. J was prosecuted for possession of the narcotics. Under the automatic standing rule announced in the case, J was allowed to contest the legality of the search of X's apartment: he did not have to prove that the narcotics belonged to him, which would have been the usual basis for securing standing in such circumstances.

The Court permitted automatic standing for two reasons. First, the Court expressed concern about the dilemma confronting a defendant charged with a crime of possession who wished to contest a search: To prove standing to raise a Fourth Amendment claim she might have to testify in a pretrial hearing that she owned or possessed the seized evidence, the very "facts the proof of which would tend, if indeed not be sufficient to...