Fourth Amendment Standing: A New Paradigm Based on Article III Rules and Right to Privacy

• Author: Elwood Earl Sanders, Jr., Esq.
• Position: J.D., 1983, University of Alabama
• Pages: 669-692

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This article has its origin in a misdemeanor narcotics possession tried by the author along these lines: The officer testified that the defendant had asserted that the bag containing the contraband was not his. The officer, in shaking and searching the bag, found the contraband. There was no probable cause to search the bag and the mere shaking itself violated state precedent.¹ But my motion to suppress was denied because the defendant had renounced the bag. I elected not to challenge the assertion that the bag was not his by incriminating the defendant. Predictably, the "self-serving" nature of the defendant's statement was rejected and the defendant was convicted on the testimony of the officer.

I cannot say that the judge was in error under the present rules of standing. But I felt the entire procedure produced an unfair result. An illegal search went unsanctioned. Perhaps even worse was that the purpose of the exclusionary rule-the deterrence of police misconduct²-was defeated by a technical property-based analysis. There simply has to be a better way to decide these cases. I began to search for a paradigm that would not only deter police misconduct but also have some standard for seeking exclusion as a remedy. I began with the limitations and requirements of Article III standing-the "case and controversy"³ and thePage 670 "direct injury"⁴ requirements-in search of a substitute for the present "legitimate expectation of privacy"⁵ Fourth Amendment standing principle. For some time, I have believed standing should arise when the product of the illegal search or the illegally seized item is sought to be introduced into evidence against the defendant. Certainly, both "injury in fact" and a true "case or controversy" exist when the illegally obtained evidence is introduced against that defendant. A thesis supported in history and in precedent is necessary to persuade the Court to adopt this new standing paradigm.

There is historical support for a broad reading of standing.⁶ Even the narrow, modern "injury in fact" rule would be sufficient to give standing to all aggrieved defendants.⁷ Moreover, my review of the cases produced a startling concept: a nexus between the Fourth Amendment and the right to privacy that the Court had held is encompassed in the Due Process Clause.⁸ This was the very historical and precedential answer for which I was looking. Support exists for liberalized standing in the substantive due process cases-especially where the vicarious standing was to prevent the threat of criminal liability.⁹ Thus, the Court can adopt this standing paradigm without violence to prior precedent. This nexus gives authority for the Court to adopt my thesis: any party against whom the evidence is toPage 671 be introduced ought to have standing to object to the evidence on the ground of the illegal search or seizure of the evidence-even if the illegal search or seizure occurred to another person. If a litigant asks the Court to jettison prior precedent, that litigant has a duty to suggest its replacement.

In light of this duty, let us begin with a review of Fourth Amendment standing and related cases. I start with an 1886 case that I believe is essential for any discussion of Fourth Amendment standing. In Boyd v. United States¹⁰ the Supreme Court used the following language to find that there was a violation of both the Fourth and Fifth Amendments by an illegal seizure of papers and their subsequent use at trial:

Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods, is within the condemnation of that judgment.¹¹

This language was cited in Mapp v. Ohio¹² to justify the extension of the exclusionary rule to the states.¹³ Mapp cited Jones v. United States¹⁴ in support of the trend in the law favoring exclusion.¹⁵ According to Mapp, without this exclusion, the Fourth Amendment's mandate would be anPage 672 "empty promise."¹⁶ Mapp v. Ohio is relevant to my thesis and I will take it up again later in this article.

Jones v. United States was the first modern case to deal with Fourth Amendment standing.¹⁷ In Jones, the Court defined the "person aggrieved" language of Rule 41(e) of the Federal Rules of Criminal Procedure to include "anyone legitimately on premises."¹⁸ Justice Frankfurter refused to allow that language to permit standing in any case where the evidence is sought to be introduced against that defendant.¹⁹ The Court did, however, state the problem in terms of privacy:

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The restrictions upon searches and seizures were obviously designed for protection against official invasion of privacy and the security of property. They are not exclusionary provisions against the admission of kinds of evidence deemed inherently unreliable or prejudicial. The exclusion in federal trials of evidence otherwise competent but gathered by federal officials in violation of the Fourth Amendment is a means for making effective the protection of privacy.

Ordinarily, then, it is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed that he establish, that he himself was the victim of an invasion of privacy.²⁰

The seminal case of Katz v. United States²¹ changed the terms of the analysis: "The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment."²² Katz overruled the Olmstead v. United States²³ holding that an actual trespass was necessary.²⁴

Katz rejected a general right to privacy but did uphold privacy aspects of the Fourth Amendment.²⁵ It created a new standing paradigm: the reasonable expectation of privacy.²⁶

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In Mancusi v. DeForte,²⁷ the Court applied the new Katz formulation and came up with this phrase: "[A] reasonable expectation of freedom from governmental intrusion."²⁸ The Court came very close to holding that a person could assert the rights of another entity.

Frank DeForte was a vice-president of a Teamsters Local in Nassau County, New York.²⁹ As such, he had an office at the Union's local headquarters.³⁰ The Court asserted that DeForte had an expectation of personal privacy in that office and in its papers, even though they were not his papers.³¹ Justices Black and Stewart argued in dissent that the Court was allowing DeForte to assert the rights of the Union de facto.³² The dissent stated that according to the Jones formulation, the introduction of illegally obtained evidence alone was not sufficient to cause a Fourth Amendment violation, implying that this was exactly what the Court did.³³

In Alderman v. United States³⁴ the Court again held that the mere introduction of evidence against a party did not create standing.³⁵ "Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted."³⁶ The Court also suggested that deterring police misconduct did not justify the extension of the exclusionary rule to anyone other than the victim of the illegal search or seizure.³⁷ It went on to hold that there was no special rule for "[c]oconspirators and codefendants."³⁸

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The Court in Rakas v. Illinois³⁹ promulgated the present standing rule⁴⁰ Rakas and another were passengers in a car allegedly involved in an armed robbery.⁴¹ Shells and a sawed-off shotgun found in the motor vehicle were used at trial to convict both men.⁴² The men neither owned the automobile nor "assert[ed] that they owned the rifle or shells seized."⁴³ The Appellate Court of Illinois held that '"a mere passenger . . . lacks standing to challenge the legality of the search of the vehicle.'"⁴⁴ It further held that neither of the passengers were "persons aggrieved" by the search and that each only sought to bar "the use of evidence gathered as a consequence of a search and seizure directed at someone else and fail[ed] to prove an invasion of [his] own privacy."⁴⁵

At the United States Supreme Court, Rakas and his fellow passenger argued that the use of evidence against them from the search of the vehicle was a Fourth Amendment violation.⁴⁶ They characterized their standing proposal as a "target" theory.⁴⁷ The Court reaffirmed that '"Fourth Amendment rights are personal'" in nature⁴⁸ and that there are ample legal rights to deter law enforcement:

There is no reason to think that a party whose rights have been infringed will not, if evidence is used against him, have ample motivation to move to suppress it. Even if such a person is not a defendant in the action, he may be able to recover damages for the violation of his Fourth Amendment rights or seek redress under state law for invasion of privacy or trespass.⁴⁹

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Rakas, in essence, overruled Jones's, "legitimately on premises" test for standing,⁵⁰ but clearly reaffirmed that privacy was the touchstone of Fourth Amendment rights.⁵¹ The Rakas Court applied the Katz test for determining whether there was a protected interest-a "legitimate expectation of privacy"-but refused passengers in a vehicle the right to challenge the search of that vehicle.⁵² The Rakas Court also rejected the "target" theory, citing the criticism of Justice Harlan in Alderman that it would be an undue burden on law enforcement, especially regarding things such as wiretapping.⁵³ Four members of the Court dissented and accused the majority of renouncing the central holding of Katz,⁵⁴ asserting, "The Court today holds that the Fourth Amendment protects property, not people."⁵⁵

The Rakas Court distinguished the injury in fact, e.g., Article III standing, formulation:

It should be emphasized that nothing...