Pronouncements of the United States Supreme Court Relating to the Criminal Law Field: 1978-1979

JurisdictionUnited States,Federal
CitationVol. 8 No. 9 Pg. 1626
Publication year1979
8 Colo.Law. 1626
Colorado Lawyer

1979, September, Pg. 1626. Pronouncements of the United States Supreme Court Relating to the Criminal Law Field: 1978-1979


Vol. 8, No. 9, Pg. 1626

Pronouncements of the United States Supreme Court Relating to the Criminal Law Field: 1978-1979

by William H. Erickson

[Please see hardcopy for image]

William H. Erickson, Denver, is Associate Justice of the Colorado Supreme Court.

© The Colorado Lawyer 1979




1. Rakas v. Illinois, ___ U.S. ___, 99S.Ct. 421 58 L.Ed.2d 387 (December 5, 1978).

A police officer received a radio call notifying him of a robbery of a clothing store and describing the get-away car. Shortly thereafter, police stopped the vehicle in which petitioners were passengers, ordered them out of the car, and searched the vehicle's interior. They found a box of rifle shells in the locked glove compartment and a sawed-off rifle under the front passenger seat. Petitioners were arrested and subsequently tried for armed robbery. At the hearing on a motion to suppress, petitioners conceded that they did not own the vehicle that was searched and did not assert that they owned the rifle or the shells that were seized. The trial court determined that without a possessory interest in the vehicle searched or the items seized, petitioners lacked standing to object to the search and seizure and denied their motion. On appeal, the Illinois Appellate Court affirmed the trial court's denial of their motion to suppress, and the Illinois Supreme Court denied leave to appeal. The Supreme Court affirmed.

In an opinion that placed limitations on Jones v. United States, 362 U.S. 257 (1960), the Supreme Court, speaking through Justice Rehnquist, rejected the "target" theory of Fourth Amendment standing which permits a defendant to assert a violation of his Fourth Amendment rights when he is the one against whom the search is directed, regardless of any possessory interest in the premises searched. The majority declared that any language in Jones which might have been read to infer that the Court had intended to adopt the "target" theory has been repudiated by the Court's holdings in later cases. See, e.g., Alderman v. United States, 394 U.S. 165 (1969) (Harlan, J., concurring). In a footnote, the Court pointed out that they were not deciding whether the alternative holding of Jones, which established "automatic" standing to contest an allegedly illegal search where the possession required to establish standing is an essential element of the offense charged, is still viable.

While Jones was distinguished on its facts, its focus on the concept of standing as being determinative of the extent of a defendant's rights under the Fourth Amendment was rejected. The "legitimately-on-the-premises" standard is no longer a foundation for standing under the Fourth Amendment. The majority asserted that they were influenced by the substantial social cost for the vindication of Fourth Amendment rights that the exclusionary rule exacts and declared that Fourth Amendment rights are personal rights which may not be vicariously asserted. In redefining the extent of a particular defendant's rights, the Court focused on Alderman


and again declared that a person who is tied to damaging evidence seized in the search of a third person's premises or property has not been deprived of his Fourth Amendment rights.

In defining the scope of interest protected by the Fourth Amendment, Katz v. United States, 389 U.S. 347 (1967), provides proper guidance. It is a person's legitimate expectation of privacy that determines whether or not the protection of the Fourth Amendment can be claimed. The mere fact that petitioners were "legitimately on the premises" at the time of the search is not dispositive of their expectations of privacy in the areas of the vehicle that were searched. Lacking a property or possessory interest in the vehicle or the property seized, no legitimate expectation of privacy could be shown.

Justice Powell, joined by the Chief Justice, concurred, saying that only legitimate expectations of privacy are protected by the Fourth Amendment, and that those expectations must be recognized by society as reasonable. See Katz v. United States, 389 U.S. 347 (1967). Reasonableness must be determined in light of all the surrounding circumstances, keeping in mind the significantly lower expectation of privacy that the Court has recognized in a car, as contrasted to other locations. See, e.g., United States v. Martinez-Fuerte, 428 U.S. 543 (1976).

Justice White, writing for Justices Brennan, Marshall, and Stevens, dissented, stating that the majority improperly ties the Fourth Amendment prohibition against unreasonable search and seizure to property law concepts. The primary object of the Fourth Amendment is protection of privacy, and courts must focus on whether the premises searched are within a protected zone of privacy. They must then determine whether the particular claimant has an interest in connection with the premises searched that gives rise to a reasonable expectation of freedom from governmental intrusion. Two doctrines should control in making these determinations. First, there has always been recognition of some level of privacy in the interior of a car. See United States v. Chadwick, 433 U.S. 1 (1977). Second, when a person is legitimately present in a private place, his right to privacy is protected from unreasonable governmental intrusion. See, e.g., Jones v. United States, 362 U.S. 257 (1960), and Brown v. United States, 411 U.S. 223 (1973).

An Analysis of the Exclusionary Rule

Eighteen years have elapsed since the exclusionary rule was made applicable to the states. Mapp v. Ohio, 367 U.S. 643 (1961). The effectiveness of the exclusionary rule and the possibility of establishing a new remedy that will more truly serve the ends of justice has brought about extended study. The normative function of the exclusionary rule has been perceived to be the avoidance of the evil of judicial sanction of illegal police conduct, while its factual justification lies in the assertion that excluding evidence will reduce violations of the search and seizure rules. Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. Chi. L. Rev. 665 (1970). Compare, Stone v. Powell, 428 U.S. 465 (1976).

Commentators generally agree that focus should be centered on the factual considerations of deterrence, but disagree as to how effective the rule has been in deterring illegal police searches and seizures, and how realistic it is to believe that other remedies can be more effective.

The Pound Conference Follow-Up Task Force suggested that the exclusionary rule be at least modified and favored alternative methods as deterrents to illegal police activity. The Pound Conference Follow-Up Task Force, 74 F.R.D. 159 (1976). Erickson, The Pound Conference Recommendations: A Blueprint for the Justice System in the Twenty-First Century, 76 F.R.D. 277 (1978); Erickson, New Directions in the Administration of Justice, Responses to The Pound Conference, 64 A.B.A.J. 48 (Jan. 1978), and Bell, Responses of the Justice Department, 48 A.B.A.J. 53 (1978), highlight many of the recommendations made by the Follow-Up


Task Force and pointed to many decisions that question the efficacy and wisdom of excluding reliable evidence. See Manson v. Brathwaite, 432 U.S. 98 (1977); United States v. Janis, 428 U.S. 433 (1976); Stone v. Powell, 428 U.S. 465 (1976). The Task Force has called for increased efforts to develop ways to protect constitutional rights, while at the same time allowing trial courts to focus on their proper subject---the guilt or innocence of the accused. See, Wilkey, The Exclusionary Rule: Why Suppress Valid Evidence, 62 Judicature 214 (1978).

In response to The Pound Conference Recommendations, Griffin Bell, the Attorney General of the United States and the former Chairman of The Pound Conference Follow-Up Task Force, stated that the Department of Justice is currently engaged in a major project to provide a practicable and effective deterrent to illegal searches and seizures by federal law enforcement officers. Bell, The Pound Conference Follow-Up: A Response From the United States Department of Justice, 76 F.R.D. 320 (1978). Along with the initiation of various institutional changes within the Department of Justice, other alternatives include development of guidelines and a proposed statutory charter to govern the manner in which investigations are conducted, and the development of a civil cause of action that would provide an effective remedy for the victim as well as an adequate deterrent to illegal searches and seizures. See, Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1970).

A legislative proposal along these lines has been forwarded to the 95th Congress (S. 2117, H.R. 9219). United States v. Calandra, 414 U.S. 338 (1973), emphasized that the exclusionary rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effects on future unlawful police conduct, rather than the personal constitutional rights of the aggrieved party. Hence, legislation concerning the rule, its scope, and any alternative remedies, would seem to be proper. The "Bentsen Bill" (S. 2657) proposing amendment of Title 18 of the United States Code to define and limit the exclusionary rule in federal criminal proceedings was presented to the 92nd Congress in 1971, but failed to pass.

Oaks, in his article, compiled and analyzed the results of empirical studies on the effect of the exclusionary rule and came to the conclusion that its deterrent effect was minimal. He also did a careful analysis of the history of the rule, alternatives to the rule, its negative effects, and its...

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