Standing and the Fourth Amendment

Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Court for a long period followed a rule of “standing” by which it determined whether a party was the appropriate person to move to suppress allegedly illegal evidence. Akin to Article III justiciability principles, which emphasize that one may ordinarily contest only those government actions that harm him, the standing principle in Fourth Amendment cases “require[d] 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.” 1 Subsequently, the Court departed from the concept of standing to telescope the inquiry into one inquiry rather than two. Finding that standing served no useful analytical purpose, the Court has held that the issue of exclusion is to be determined solely upon a resolution of the substantive question whether the claimant’s Fourth Amendment rights have been violated. “We can think of no decided cases of this Court that would have come out differently had we concluded . . . 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.” 2 One must therefore show that “the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect.” 3 The Court has clarified that this “concept of standing in Fourth Amendment cases . . . should not be confused with Article III standing,” emphasizing that “ Fourth Amendment standing is subsumed under substantive Fourth Amendment doctrine” and is not a preliminary “jurisdictional question.” 4

The Katz reasonable-expectation-of-privacy inquiry largely supplanted property-ownership concepts that previously might have supported either standing to suppress or the establishment of an interest that has been invaded—but has not entirely replaced or “repudiate[d]” the Fourth Amendment's “concern for government trespass.” 5 In the 1960 case Jones v. United States, the Supreme Court held that a person could establish standing to challenge a search or seizure where that person was “legitimately on [the] premises” as a guest or invitee of the owner of the premises.6 This statement about legitimate presence was later limited by the Court in Rakas v. Illinois,7 which emphasized that to challenge a search, a person must assert a personal interest protected by the Fourth Amendment.8 And while prior case law had seemed to suggest that ownership of a seized item would alone suffice to establish standing, the Court clarified in Rakas that under Katz, “capacity to claim the protection of the Fourth Amendment depends . . . upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.” 9 Under the reasonable-expectations-of-privacy test, a person may “have a legally sufficient interest” to implicate the protections of the Fourth Amendment even if that interest “might not have been a recognized property interest at common law.” 10 Nonetheless, a “property” or “possessory interest” in the premises searched remains relevant to the inquiry.11

Footnotes

1

Jones v. United States, 362 U.S. 257, 261 (1960). That is, the movant must show that he was “a victim of search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of search or seizure directed at someone else.” Id. See Alderman v. United States, 394 U.S. 165, 174 (1969).

2

Rakas v. Illinois, 439 U.S. 128, 139 (1978).

3

439 U.S. at 140.

4

Byrd v. United States, 138 S. Ct. 1518, 1530 (2018).

5

United States v. Jones, 565 U.S. 400, 406–07 (2012) ( “[F]or most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas . . . it enumerates. Katz did not repudiate that understanding.” ). See also Grady v. North Carolina, 135 S. Ct. 1368, 1370 (2015) (per curiam); Florida v. Jardines, 569 U.S. 1, 5–6 (2013).

6

362 U.S. 257, 266–67 (1960). See also United States v. Jeffers, 342 U.S. 48, 51–53 (1951) (allowing defendant with access to a hotel room to challenge the seizure of narcotics that were his property, concluding that the search and the seizure were “incapable of being untied” ).

7

439 U.S. 128, 143 (1978) ( “[T]he Jones statement that a person need only be 'legitimately on premises' in order to challenge the validity of the search of a dwelling place cannot be taken in its full sweep beyond the facts of that case.” ). In Jones, the Court had also held that a person had standing “where the indictment itself charges possession.” 362 U.S. at 264. But in Simmons v. United States, 390 U.S. 377, 390 (1968), the Court held “that testimony given by a defendant” to establish possession of things searched or seized and meet standing requirements is not “admissible against him at trial on the question of guilt or innocence.” The Court recognized that Simmons (among other legal developments) had undermined the justification for “automatic standing” on the basis of an indictment and overruled this part of Jones in United States v. Salvucci, 448 U.S. 83, 88–89 (1980).

8

See Rakas, 439 U.S. at 136 ( “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.” ) (citing Alderman v. United States, 394 U.S. 165, 171–72 (1969)). See, e.g., id. at 143 (holding that defendants' “claims must fail” where, even though the defendants were in a car with the permission of the car's owner, “[t]hey asserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized” ). In Rakas, the Court distinguished United States v. Jeffers, 342 U.S. 48 (1951), by holding that “[s]tanding in Jeffers was based on Jeffers' possessory interest in both the premises searched and the property seized.” 439 U.S. at 136.

9

Rakas, 439 U.S. at 143. See also United States v. Salvucci, 448 U.S. 83, 92 (1980) ( “We simply decline to use possession of a seized good as a substitute for a factual finding that the owner of the good had a legitimate expectation of privacy in the area searched.” ); see, e.g., Rawlings v. Kentucky, 448 U.S. 98, 105–06 (1980) (holding defendant could not challenge seizure of his drugs from another's purse, where defendant had no legitimate expectation of privacy in the purse). In Rakas, the Court distinguished United States v. Jones, 362 U.S. 257 (1960), by stating that in that case, “Jones not only had permission to use the apartment of his friend, but had a key to the apartment . . . . [and] [e]xcept with respect to his friend, Jones had complete dominion and control over the apartment and could exclude others from it,” 439 U.S. at 149. Cf. Florida v. Jardines, 569 U.S. 1, 5 (2013) ( “When 'the Government obtains information by physically intruding' on persons, houses, papers, or effects, 'a “search” ' within the original meaning of the Fourth Amendment has 'undoubtedly occurred.'” (quoting United States v. Jones, 565 U.S. 400, 406 n.3 (2012)) (emphasis added)).

10

Rakas, 439 U.S. at 143.

11

Id. at 148. See also, e.g., United States v. Padilla, 508 U.S. 77, 82 (1993) (per curiam) ( “Expectations of privacy and property interests govern the analysis of Fourth Amendment search and seizure claims.” ).