5.5 Fourth Amendment Standing

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

5.5 FOURTH AMENDMENT STANDING

5.501 History and Background. The law of Fourth Amendment standing has undergone a radical change during the past several decades. Not only has the Supreme Court altered the theoretical basis upon which courts must determine who is entitled to assert Fourth Amendment claims, but it also has overruled a number of well-established and familiar Fourth Amendment standing doctrines.

Before 1978, individuals attempting to suppress evidence on Fourth Amendment grounds first had to establish their standing. The Supreme Court held that Fourth Amendment rights are "personal" rights that may not

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be asserted vicariously. ³¹⁴ Defendants could establish their standing to raise Fourth Amendment objections to a search or seizure by showing: (i) that they owned or possessed the area searched or items seized; ³¹⁵ (ii) that they were "legitimately" on the premises at the time of the search; ³¹⁶ or (iii) that the search violated a reasonable expectation of privacy that they had in the area searched. ³¹⁷ Moreover, defendants were given "automatic standing" to object to a search and seizure, without regard to the foregoing theories, if they were charged with an offense, an essential element of which was possession of the items seized at the time of the search. ³¹⁸ Finally, in order to lay the necessary factual predicate for standing, the defendant's testimony at the suppression hearing concerning standing could not be used against him or her at trial on the issue of guilt. ³¹⁹

5.502 Rakas v. Illinois and Its Progeny: The New Law of Standing. Beginning with the Supreme Court's decision in Rakas v. Illinois, ³²⁰ the nature of the inquiry into the defendant's "standing" to raise Fourth Amendment claims changed radically. According to the court in Rakas, the question of the defendant's standing is in reality a question of whether the search and seizure violated the defendant's reasonable or legitimate expectation of privacy. The Court stated that it was not helpful to frame the question in terms of a defendant's standing; instead, the Court said that "the better analysis forth-rightly focuses on the extent of a particular defendant's rights under the Fourth Amendment." ³²¹ The Court went on to hold that passengers in an automobile, claiming neither a possessory nor a proprietary interest in the area searched or items seized, cannot raise a Fourth Amendment objection to the search and seizure. ³²² The Court specifically narrowed the scope of the existing theory granting standing to

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persons "legitimately on the premises at the time of the search" and cast doubt on the continuing validity of other so-called standing doctrines.

Rakas was quickly followed by a series of cases that confirmed the erosion of existing standing doctrines. In United States v. Salvucci, ³²³ the Court overruled the cases granting "automatic standing" to persons charged with possessory offenses. Defendants charged with offenses, an essential element of which is possession of items seized at the time of the search, must establish, just as any other defendant must, that the search and seizure violated their own legitimate or reasonable expectation of privacy. Defendants, of course, continue to enjoy immunity for testimony given at the suppression hearing on the issue. ³²⁴ In Rawlings v. Kentucky, ³²⁵ the Court held that an ownership (or other proprietary or possessory interest) in the item seized is not, standing alone, sufficient to establish a right to object to a search of the area from which the items are seized. Thus, in Rawlings, the Court refused to allow a defendant to raise a Fourth Amendment objection to a search of his companion's purse...