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In Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Supreme Court effectively removed any distinction which previously existed between an individual’s standing to challenge a particular search and the substantive Fourth Amendment analysis of the search itself holding that the question crucial to both is that posed in Katz v. U.S., 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576: “Whether the person who claims the protection of the [Fourth] Amendment has a legitimate expectation of privacy in the invaded place.” Rakas v. Illinois, 439 U.S. at 134.

The focus of the standing inquiry has thus shifted from rigid considerations of one’s proprietary interest in the place searched or items seized to whether the individual had a legitimate expectation of privacy in the invaded place.

“The court in Katz held that capacity to claim the of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the amendment has a legitimate expectation of privacy in the invaded place.” Rakas v. Illinois, 439 U.S. at 143.

Ultimately, whether a person has standing is analyzed on a case-by-case basis looking to the claimant’s reasonable expectation of privacy under the totality of circumstances.

A factual showing should be made at the evidentiary hearing to establish such factors as:

  • Defendant’s proprietary or possessory interest in the place or item searched,
  • Defendant’s right or authority to exclude others from the place or exclusive control over items searched,
  • Defendant’s presence at the time of the search,
  • Security or other precautions taken by the Defendant which evince a reasonable expectation of

See U.S. v. Barry, 853 F.2d 1479 (8th Cir. 1988) [defendant checking bag in name of proposed buyer of stolen goods contained therein retained an expectation of privacy in same then having standing to complain of its warrantless search]; U.S. v. Perez, 689 F.2d 1336 (9th Cir. 1982) [those following truck with contraband to insure its delivery have standing since there was a formalized arrangement between the parties]; U.S. v. Savides, 665 F. Supp. 686 (D. Ill. 1987) [luggage placed in car then followed, still have expectation of privacy therefore standing]. But see U.S. v. McBean, 861 F.2d 1570 (11th Cir. 1988) [defendant had no standing to complain of search of luggage found in the trunk of his car as he disclaimed ownership of same].

Counsel should be aware that the question of standing does not end the inquiry regarding whether evidence obtained during a police encounter is admissible against the defendant. If, for example, the defendant without standing to complain of a vehicle stop, arrest of the driver and inventory search nevertheless may exclude evidence of his un-Mirandized statements in response to an alleged “general on-the-scene” question. Castelbarry v. State, 2002 WL 31863228 (Tex. App. – San Antonio, December 24, 2002)[not designated for publication].

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