UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 6, No.1FALL 1982
Search, Seizure, and Washington's Section Seven: Standing from Salvucci to Simpson
by Mark H. Adams(fn*) and George R. Nock(fn**)
In Jones v. United States,(fn1) the United States Supreme Court gave birth in 1960 to the rule of "automatic standing," that is, the doctrine that one automatically has standing to contest an allegedly illegal search where his possession of the seized evidence is an essential element of the offense with which he is charged. The accused does not have to show that his own fourth amendment(fn2) rights were violated, but only that the search and seizure was unconstitutional. The Supreme Court, however, gradually eroded the "automatic standing" rule during the 20 years following Jones, finally and completely overturning it in United States v. Salvucci.(fn3) This article first traces the evolution of that turnabout and discusses the approach that has replaced the Jones rule in the Supreme Court. It then discusses the Washington Supreme Court's continued adherence to the automatic standing rule, despite the Salvucci decision, under the Washington Constitution rather than the fourth amendment. After focusing on the failure of the United States Supreme Court to fashion a standing rule consistent with the Court's stated purpose for the exclusionary rule, this article urges the Washington court to interpret the state's constitution in a more consistent, principled fashion. The Washington Supreme Court has stated on separate occasions that the primary purposes behind the Washington standing rule are to deter official misconduct in searches and seizures and to preserve the underlying privacy values of the Washington constitution. This article will conclude that the Washington court should adopt the second of these two purposes for the principled development of its standing rule in the best tradition of American federalism and jurisprudence.
Part I
A. Background: Jones v. United States
In Jones, federal officers arrested Cecil Jones and charged him with violating federal narcotics laws. The charges resulted from the officers' discovery of illicit narcotics during execution of a warrant to search an apartment in which Jones was present but did not reside. Jones moved to suppress the evidence on the grounds that the warrant was not issued upon probable cause. The government challenged Jones' standing to move to suppress because he neither admitted owning the seized articles nor showed any interest in the apartment greater than that of "invitee or guest."(fn4)
The Court acknowledged the longstanding principle that a person cannot claim a constitutional protection unless he "belongs to the class for whose sake the constitutional protection is given."(fn5) That principle, the Court noted, ordinarily requires a person claiming fourth amendment protection to show that he himself was the victim of an invasion of privacy, i.e., is either the owner of the seized property or one who has a substantial possessory interest in the premises searched.(fn6)
The Jones Court, however, carved out an exception to the personal privacy standing requirement in cases where possession of the seized evidence is an element of the offense charged. It did so for two reasons: (1) A defendant charged with a possessory offense might be able to establish his standing to move for suppression only by giving self-incriminating evidence which could be used against him subsequently at trial;(fn7) and (2) the prosecution should not be allowed the "advantage of contradictory positions," i.e., asserting on the one hand that the accused possessed the goods and is guilty, while arguing on the other hand that he did not possess them for purposes of standing to claim the protections of the fourth amendment.(fn8) Thus, in order to prevent both the risk of self-incrimination and what became known as the "vice of prosecutorial self-contradiction,(fn9) the Jones Court held that such a defendant had automatic standing to rely upon the fourth amendment without having to show an interest in the premises searched or the property seized. The defendant had only to show that the search and seizure of the evidence was unconstitutional. Jones went on to hold, alternatively, "that the defendant need have no possessory interest in the searched premises in order to have standing; it is sufficient that he be legitimately on those premises when the search occurs."(fn10)
B. The Erosion of Jones
The Supreme Court eliminated the first of the Jones Court's justifications for its "automatic standing" rule in Simmons v. United States.(fn11) In Simmons, the Court held that when a defendant testifies in support of a motion to suppress evidence on fourth amendment grounds, his testimony may not later be admitted against him at trial on the issue of guilt unless he fails to object.(fn12)
In 1973, the Court considered the effect of Jones in the case of Brown v. United States.(fn13) In Brown, the government accused the defendants of transporting stolen goods and conspiracy to transport stolen goods in interstate commerce. The goods were owned by a company for which Brown was a warehouse manager and Smith, another defendant, was a truck driver. The government accused Brown and Smith of pilfering the goods in Ohio and delivering them to Clinton Knuckles, owner of a store in Kentucky. Police officers seized the goods pursuant to a warrant to search Knuckles' store. Knuckles was present at the store during the search, but Brown and Smith were then in custody in Ohio. All three defendants moved to suppress evidence obtained by the search. The trial court granted Knuckles' motion on grounds the search warrant was defective, but denied the motion of Brown and Smith because they failed to assert a proprietary or possessory interest in the searched premises or in the goods seized.(fn14)
The Supreme Court affirmed. The Court noted that Simmons had undermined the "self-incrimination dilemma, so central to the Jones decision . . . ," but found it unnecessary to reconsider the Jones holding because, unlike in Jones, the government's case against Brown and his co-defendants did not "depend on [their] possession of the seized evidence at the time of the contested search and seizure."(fn15) The defendants had transported and sold the stolen goods to Knuckles some two months before the search, and the indictments were limited to the period before the search. Therefore, the Court saw no risk to the defendants of either self-incrimination or prosecutorial self-contradiction. The Court declared that the defendants had no standing to challenge the search and seizure because they (a) were not on the premises when the search and seizure occurred, (b) alleged no proprietary or possessory interest in the premises, and (c) were not charged with an offense, an element of which was possession of the seized evidence at the time of the search and seizure.(fn16) Brown reiterated that "Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted." (fn17)
The Supreme Court accelerated its movement away from the automatic standing rule in Rakas v. Illinois.(fn18) In the process, whereas Simmons eliminated the "self-incrimination dilemma" behind the Jones rule, Rakas in effect eliminated the second basis for that rule, the "vice" of prosecutorial contradiction.
Rakas involved an effort to suppress as evidence a sawed-off rifle and rifle shells that were seized during a search of an automobile in which the defendants were passengers. The defendants asserted no ownership interest in either the car or the weaponry found in the glove compartment and under the front passenger seat of the car. They argued that the Court should broaden the Jones rule to confer automatic standing upon them as defendants at whom a search was directed as "targets."(fn19) Seizing on the alternative holding of Jones, they also argued that they had standing to contest the search because they were "legitimately on the premises" (in the car) at the time of the search.(fn20)
The Rakas majority refused to adopt either the so-called "target theory"(fn21) of standing or the idea that the phrase "legitimately on the premises" should include passengers in an automobile. Instead, the Court emphasized that fourth amendment rights are personal to and may be asserted only at the instance of one who has a legitimate expectation of privacy in the area searched.(fn22) The Rakas Court was concerned lest, by conferring standing to raise vicarious fourth amendment claims, it would unduly extend the exclusionary rule.(fn23) The Court concluded that no useful analytical purpose was served in the context of suppression of evidence by considering the question of standing apart from substantive fourth amendment law.(fn24) The Court stated the following:[T]he question is whether the challenged search and seizure violated the Fourth Amendment rights of a criminal defendant who seeks to exclude the evidence obtained during it. That inquiry in turn requires a determination of whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect.(fn25) Inasmuch as Rakas and the other defendant made no showing of a legitimate expectation of privacy in the glove compartment or the area under...
