Fourth Amendment Applicability—Standing (The Searchee)

• Jurisdiction: Maryland

V. Fourth Amendment applicability—standing (the searchee)

A. "Standing" and REP are the same analysis

In Rakas, 439 U.S. at 138-39, the Supreme Court recognized that standing and REP are, in essence, the same analysis. The Court stated:

[After] reaffirm[ing] the principle that the rights assured by the Fourth Amendment are personal rights, [which] may be enforced by the exclusion of evidence only at the instance of one whose own protection was infringed by the search or seizure, the question necessarily arises whether it serves any useful analytical purpose to consider this principle a matter of standing, distinct from the merits of a Defendant's Fourth Amendment claim. We can think of no decided cases of this Court that would have come out differently had we concluded, as we do now, that the type of standing requirement . . . reaffirmed today is more properly subsumed under substantive Fourth Amendment doctrine. Rigorous application of the principle that the rights secured by this Amendment are personal, in place of a notion of "standing," will produce no additional situations in which evidence must be excluded. The inquiry under either approach is the same. But we think the better analysis forthrightly focuses on the extent of a particular Defendant's rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing.

Id. (internal citations and quotations omitted). Even though standing or lack of standing is just another way of saying that there is an REP or there is no REP, courts regularly use the term "standing."

B. Standing is personal and cannot be raised vicariously

Standing is personal to the defendant. The defendant has standing to assert his or her constitutional rights but has no standing to assert the constitutional rights of others, even when the rights of others are violated to obtain evidence that is used against the defendant. In Alderman v. United States, 394 U.S. 165 (1969), the Supreme Court stated: "Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted." Id. at 174 (citing Simmons v. United States, 390 U.S. 377 (1968); Jones v. United States, 362 U.S. 257 (1960)).

In United States v. Salvucci, 448 U.S. 83 (1980), the Supreme Court stated: "[A]ttempts to vicariously assert violations of the Fourth Amendment rights of others have been repeatedly rejected by this Court." Id. at 86; accord Lopata v. State, 18 Md. App. 451, 452-53 (1973) ("notion of standing precludes one person from asserting vicariously the Fourth Amendment claims of another").

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