§ 19.04 ILLINOIS

• Jurisdiction: North Carolina

§ 19.04. Standing to Contest a Search: Rakas v. Illinois

[A] The New Approach

Rakas v. Illinois³¹ is the leading Supreme Court case in modern "standing" jurisprudence. It brought a new language and a different approach to the doctrine.

In Rakas, police officers stopped an automobile that purportedly met the description of the car used in a robbery that had transpired moments earlier. The four occupants, including its owner who had been driving, were ordered out of the car, after which the police searched the passenger compartment. Rifle shells were found in the locked glove compartment, and a sawed-off rifle was found under the front passenger seat.

R,³² a passenger, moved to suppress the rifle and the shells found in the car, apparently on the ground that the police lacked adequate cause for the search. As the Court pointed out various times, R did not base his claim for standing on the ground that he had an ownership interest in the vehicle or in the property seized, which were grounds for standing prior to Rakas.³³ Instead, the key³⁴ standing claim was that R was "legitimately on the premises" at the time of the search, another basis for standing authorized by the Court in Jones v. United States.³⁵

By a 5-4 vote, the Court, per Justice Rehnquist, held that R's motion to suppress the evidence on the basis of his status as a legitimate passenger in the car was properly denied by the trial court. In so holding, the Court announced a new way to look at the issue of standing. According to the majority, the question of standing should not be considered "distinct from the merits of a defendant's Fourth Amendment claim."³⁶ That is, beginning with this case, the issue of standing to contest a search collapses into the basic "Katz-ian"³⁷ matter of whether the defendant had a reasonable or legitimate expectation of privacy in the area searched. According to Rakas, the new test for standing to contest a search—or what the Court described as the "capacity to claim the protection of the Fourth Amendment" — is "whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." The Court minimized the significance of this restatement of standing law. It stated that "[w]e can think of no decided cases of this Court that would have come out differently had we concluded, as we do now, that the . . . standing requirement . . . is more properly subsumed under substantive Fourth Amendment doctrine."

Justice Rehnquist explained that although the holding in Jones was correct,³⁸ the phrase used in that case—"legitimately on premises" — "creates too broad a gauge for measurement of Fourth Amendment rights." According to the Jones standard, the Rakas Court reasoned, a casual visitor to another person's home would have standing to contest a search of the basement that the visitor had never seen or been permitted to enter. Similarly "a casual visitor who walks into a house one minute before a search of the house commences and leaves one minute after the search ends would be able to contest the legality of the search." To the Rakas Court, neither outcome was sensible, as the first visitor had no legitimate expectation of privacy in the basement, and the second visitor had no expectation of privacy in the home at all.³⁹ Rehnquist pointed out, however, that "[t]his is not to say that such visitors could not contest the lawfulness of the seizure of evidence or the search if their own property were seized. . . ."⁴⁰

On the facts of Rakas, the majority concluded that R failed to prove that he had any legitimate expectation of privacy in the areas searched, namely, in the locked glove compartment and the area under the front passenger seat. According to the Court, "[l]ike the trunk of an automobile, these are areas in which a passenger qua passenger simply would not normally have a legitimate expectation of privacy." Therefore, R could not successfully claim the protections of the Fourth Amendment.

Justice White, with whom Justices Brennan, Marshall, and Stevens joined, dissented. He warned that the Court had "declare[d] an 'open season' on automobiles." He interpreted the case to stand for the proposition that "a legitimate occupant of an automobile may not invoke the exclusionary rule and challenge a search of that vehicle unless he happens to own or have a possessory interest in it." The dissent argued that the holding in Rakas would undercut the purpose of the exclusionary rule, as it would serve as an invitation to the police to search any automobile containing more than one person, on the ground that any evidence unlawfully found in it would probably be admissible against at least one of the occupants.

The dissent objected to the Court's approach on two other grounds. First, it criticized the majority for rejecting Jones's legitimately-on-the-premises rule, which was relatively easy to apply by police and courts, and substituting for it a non-bright-line test ("legitimate expectation of privacy in the invaded place"), which it predicted would present greater difficulties of application.⁴¹

Second, the dissent accused the Court of returning to pre-Katz property rights distinctions, even as it denied that it was doing so. As the dissent viewed the facts in Rakas, R was in a private place (an automobile) with the permission of the owner of that place, yet this did not entitle him under the majority's analysis to a legitimate expectation of privacy. "But," the dissent asked rhetorically, "if that is not sufficient, what would be?" Its answer was that "it is hard to imagine anything short of a property interest [in the car] that would satisfy the majority."

As a matter of privacy rights, Justice White believed that the majority's holding was not only contrary to precedent, "but also to the everyday expectations of privacy that we all share." He suggested that if the owner of the car in Rakas had invited R to be a passenger and had said, "I give you a temporary possessory interest in my vehicle so that you will share the right of privacy that the Supreme Court says that I own," then the majority "apparently" would have reached a different conclusion. "But," he said, "people seldom say such things, though they may mean their invitation to encompass them if only they had thought of the problem."

In view of the dissent's claims regarding the meaning of Rakas, and the majority's observation that "[i]t is not without significance that these statements of today's "holding" come from the dissenting opinion, and not from the Court's opinion,"⁴² a closer look at the impact of Rakas is in order.

[B] The Impact of Rakas: A Closer Look

Nothing in Rakas suggests any change in the previous rule that a person with a possessory interest in premises searched by the police has standing to contest the search of her own residence, even if she is absent at the time of the intrusion.⁴³ The analysis that follows considers more difficult issues.

[1] Search of Another Person's Residence

[a] When the Owner or Lessor is Absent

After Rakas, a person may not challenge a search of another person's residence merely on the ground that he was "legitimately on the premises" at the time of the intrusion. Although this was a satisfactory basis in Jones v. United States,⁴⁴ it is now necessary to determine whether the guest had a reasonable expectation of privacy in the premises searched.

A non-resident defendant may have standing to contest a search if she was the sole occupant of the premises with the permission of the resident, and has some significant connections to the premises. For example, the defendant in Jones was alone in his friend's apartment when the search occurred. He had a key to the premises, which he used to admit himself to the apartment, had clothing in the closet, had slept there "maybe a night," and had "complete dominion and control" (Rakas's words) over the apartment, except vis a vis the absent host. As Rakas analyzed Jones, the latter case stood "for the unremarkable proposition that a person can have a legally sufficient interest in a place other than his own home so that the Fourth Amendment protects him from unreasonable governmental intrusion into that place."

[b] When the Owner or Lessor is Present

As it turns out, a person may sometimes successfully challenge a search of another person's residence, even when the resident is present. This is evident from Minnesota v. Olson.⁴⁵ In Olson, the Supreme Court held, 7-2, that O, an overnight guest in his girlfriend's home, could challenge the police entry of the premises, notwithstanding the fact that O was never alone in the home, did not have a key, and lacked dominion and control over the premises.

Speaking for the Court, Justice Byron White (the author of the Rakas dissent) stated that "[w]e do not understand Rakas . . . to hold that an overnight guest can never have a legitimate expectation of privacy except when his host is away and he has a key. . . ." Instead, any overnight guest, even one who lacks "untrammeled power to admit and exclude" others because the host is present, can challenge a search of his host's home. According to Justice White, this holding "merely recognizes the everyday expectations of privacy that we all...