Section 9.37 Standing

• Library: Criminal Practice 2012 Supp

A. (§9.37) Standing

The concept of standing addresses when a defendant has a sufficient personal stake to be permitted to raise the issue of the alleged unconstitutionality of a search or seizure. Before the mid-1970s, standing was an independent, preliminary issue, and a defendant could challenge a search or seizure if the defendant “(1) owned or had a possessory interest in the premises searched; (2) was legitimately on the premises at the time of the search; (3) owned the property seized; or (4) had lawful possession of the property seized, such as in the status of a bailee. Automatic standing existed in limited circumstances.” Joshua Dressler, Understanding Criminal Procedure § 20.06 (2002) (footnotes omitted). Since the United States Supreme Court’s decision in Rakas v. Illinois, 439 U.S. 128 (1978), the law of standing has changed dramatically.

In Rakas, the Court rejected traditional “standing” analysis in favor of a determination of whether “the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.” Rakas, 439 U.S. at 143. Only a defendant who has such legitimate, personal expectation may challenge the search. The Court stated:

“Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.” A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed. And since the exclusionary rule is an attempt to effectuate the guarantees of the Fourth Amendment, it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rule’s protections.

Rakas, 439 U.S. at 133–34 (citations omitted). The Court has since reiterated that “[e]xpectations of privacy and property interests govern the analysis of Fourth Amendment search and seizure claims.” United States v. Padilla, 508 U.S. 77 (1993). “The inquiry, after Rakas, is simply whether the defendant’s rights were violated by the allegedly illegal search or seizure.” United States v. Salvucci, 448 U.S. 83, 87 n.4 (1980). Accord State v. Kovach, 839 S.W.2d 303, 308 (Mo. App. S.D. 1992); State v. Childress, 828 S.W.2d 935, 940 (Mo. App. S.D. 1992). Although the Court purportedly rejected standing as an independent concept, courts continue to use the terminology as a shorthand for analysis of legitimate expectation of privacy, and it is used in that context here. State v. Ramires, 152 S.W.3d 385, 394 n.3 (Mo. App. W.D. 2004).

The Court has rejected all attempts to afford standing based on anything other than a showing of a personal, legitimate expectation of privacy or a showing of sufficient property interest in the items seized. Thus, Rakas, 439 U.S. 128, rejected both standing based on an individual being “legitimately on the premises” and “target standing,” which would have afforded anyone at whom a search was aimed a right to challenge that search. Kovach, 839 S.W.2d at 308; Childress, 828 S.W.2d at 940. Automatic standing, which had allowed anyone charged with an offense for which possession of the seized item was a necessary element to raise the constitutionality of the search, was rejected in Salvucci, 448 U.S. 83. State v. Darrington, 896 S.W.2d 727, 730 (Mo. App. W.D. 1995); State v. Martin, 892 S.W.2d 348, 350–51 (Mo. App. W.D. 1995). Additionally, any thought that a co-conspirator might continue to have standing on that basis after Alderman v. United States, 394 U.S. 165 (1969), was clearly dispelled in Padilla, 508 U.S. 77.

Missouri courts have held that the standards for standing under the United States and the Missouri Constitution are the same. In State v. McCrary, 621 S.W.2d 266, 273 (Mo. banc 1981), the Court held that the reasonable expectation test for standing under Article I, § 15, of the Missouri Constitution is identical to the legitimate expectation of privacy test adopted by the United States Supreme Court in Rakas, 439 U.S. 128. See also Childress, 828 S.W.2d at 940–41. There has been considerable confusion on this issue, however.

In recent years, many courts have not followed the Rakas “legitimate expectation of privacy” analysis, but have instead reverted to other earlier doctrines. For example, in State v. Melville, 864 S.W.2d 452, 454 (Mo. App. W.D. 1993), State v. Lorenzo, 743 S.W.2d 529, 531 (Mo. App. W.D. 1987), and State v. Hensley, 770 S.W.2d 730, 736 (Mo. App. S.D. 1989), the court of appeals upheld the use of automatic standing to allow the defendants to challenge the searches. Eventually, the Western District overruled Melville and Lorenzo, reiterating that automatic standing no longer exists. Martin, 892 S.W.2d at 351; see also State v....