5.5 FOURTH AMENDMENT STANDING

• Jurisdiction: Virginia
• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2025 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 has also 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 be asserted vicariously. ¹¹²⁸ 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; ¹¹²⁹ (ii) that they were "legitimately" on the premises at the time of the search; ¹¹³⁰ or (iii) that the search violated a reasonable expectation of privacy that they had in the area searched. ¹¹³¹ 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. ¹¹³² 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. ¹¹³³

5.502 Rakas v. Illinois and Its Progeny: The New Law of Standing.

Beginning with the Supreme Court's decision in Rakas v. Illinois, ¹¹³⁴ 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 forthrightly focuses on the extent of a particular defendant's rights under the Fourth Amendment." ¹¹³⁵ 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 of the items (although they may challenge the initial seizure of the vehicle and its occupants, as discussed above at paragraph 5.303(E)). ¹¹³⁶ The Court specifically narrowed the scope of the existing theory granting standing to 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, ¹¹³⁷ 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. ¹¹³⁸ In Rawlings v. Kentucky, ¹¹³⁹ 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, even though the defendant claimed ownership of the drugs taken from the purse. ¹¹⁴⁰

In United States v. Payner, ¹¹⁴¹ the Court refused to allow a defendant to raise Fourth Amendment objections to a search and seizure of a co-conspirator's briefcase, even though the search was a flagrant violation of the Fourth Amendment rights of the co-conspirator, and even though the purpose of the search was clearly to obtain evidence against the defendant. In Minnesota v. Olson, ¹¹⁴² however, the Supreme Court held that an overnight guest in a home has a reasonable expectation of privacy even though the guest has no right to exclude others, the host is present, and the guest has no key. However, individuals paying short-term visits to homes for commercial purposes (illegal purposes) do not have a reasonable expectation of privacy. ¹¹⁴³ Motel registrants and their overnight guests may have a reasonable expectation of privacy in a motel room. A defendant must demonstrate that he or she was the registered occupant of the room or was sharing it with the person to whom the room was registered. ¹¹⁴⁴

A series of Virginia cases ¹¹⁴⁵ decided since Rakas confirms that Virginia courts have revised their view of the standing problem and that it is more difficult today for defendants to demonstrate a "reasonable or legitimate expectation of privacy" in the area searched than it was for defendants to establish standing under previous decisions. The Virginia Court of Appeals has held that a defendant riding in a stolen vehicle has no legitimate expectation of privacy in the vehicle and, thus, cannot object either to the stopping or to the searching of the vehicle. ¹¹⁴⁶ The court has also held that a hospital patient has no reasonable expectation of privacy in an emergency ward treatment room; thus, the police do not violate a defendant's expectation of privacy by entering the treatment room without a warrant. ¹¹⁴⁷

Although the later cases provide little...