WHO IS PERSON AGGRIEVED
While FED. R. CRIM. P. Rule 41(e) still speaks in terms of standing as “a person aggrieved by the unlawful search and seizure,” the Supreme Court has made clear that the test is not whether the search was directed at a particular individual, or whether that individual was incriminated by its fruits, but whether that individual had a reasonable expectation of privacy in the place searched.
One method of demonstrating such expectation is to show a proprietary interest in the place searched. While such “interest” need not “have been a recognized property interest at common law” some relationship between the individuals and the place searched must be established in order to demonstrate that individual “had a legitimate expectation of privacy in the premises” at the time of the search. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.387 (1978).
For an excellent treatment of standing, see generally, 18 AM. CR. L. REV. 387 (1981). See also U.S. v. Broadhurst, 805 F.2d 849 (9th Cir. 1986) [defendants still had a reasonable expectation of privacy and standing to contest a search of a residence that they did not reside at even though they were not present at the time of the search because they had exercised joint control and supervision of the property searched].
The burden is upon the accused. However, standing may be proved by hearsay. See U.S. v. Gomez, 495 F. Supp. 992, 1007 n.5 (S.D.N.Y. 1979) [“there is no automatic rule against receiving hearsay evidence in suppression hearings in instances in which the trial court can accord such evidence the weight that it deems desirable”]; U.S. v. Ochs, 461 F. Supp. 1, 6 (S.D.N.Y. 1968); U.S. v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974)[hearsay admissible at suppression hearings].
An alien has standing to contest whether a search of his house violated the Fourth Amendment. U.S. v. Iribe, 806 F.Supp 917 (D.Colo. 1992), aff’d in part rev’d in part by U.S. v. Iribe, 11 F.3d 1553 (10th Cir. 1993).
OWNER OF PREMISES
The owner of the premises searched, even if absent generally has standing to object to an illegal search.
U.S. v. Bright, 630 F.2d 804, 811 (5th Cir. 1980) [one has reasonable expectation of privacy in one’s own house but not that of another]; U.S. ex rel Coffey v. Fay, 344 F.2d 625 (2d Cir. 1965); Henzel v. U.S., 296 F.2d 650 (5th Cir. 1961) [despite fact defendant lived elsewhere, in this case he paid part of rent, utilized address for driver’s license and income tax purposes, had keys to residence and maintained property on the premises]; Sallie v. North Carolina, 587 F.2d 636 (4th Cir. 1978) [defendant lived in mobile home “much of the time”, maintained personal belongings there and paid rent]; Steagald v. U.S., 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981).
OWNERSHIP OF ITEM ENTRUSTED TO ANOTHER
U.S. v. Freire, 710 F.2d 1515, 1519 (11th Cir. 1983):
“Mere ownership is not the talisman for Fourth Amendment jurisprudence. So teaches Rakas. It is, nevertheless, a bright star by which courts are guided when the place invaded enjoys universal acceptance as a haven of privacy, such as one’s home. That Freire did not take the stand himself is not fatal to his privacy claim. Pupo’s testimony that the briefcase was Freire’s and that Freire had entrusted it to Pupo for safekeeping was uncontroverted. Thus, Freire shouldered his burden of establishing his continuing privacy interest in the briefcase. Moreover, the Government did not show that Freire had abandoned it either purposely or through neglect or had otherwise abrogated his expectation of privacy. Hence, Freire’s privacy interest remained intact. The district court correctly determined that Freire could challenge the search and seizure of his briefcase.” U.S. v. Freire, 710 F.2d 1515, 1519 (11th Cir. 1983).
A third party had no authority to consent to search of locked container left by another on this property where he claims no interest nor enjoys no apparent access to same. See May v. State, 582 S.W.2d 848, 851-52 (Tex.Crim.App. 1979) [third party’s consent to search his van did not authorize police search of another’s lunch box found inside, when he claimed no interest in same]; U.S. v. Pressler, 610 F.2d 1206, 1213-14 (4th Cir. 1979) [friend could not consent to police search of locked briefcase left with him by defendant where friend had no combination to the locks and claimed no right of access]; U.S. v. Block, 590 F.2d 535, 541-42 (3d Cir. 1978) [mother could not consent to search of son’s secured footlocker which was for his exclusive use]; U.S. v. Diggs, 569 F.2d 1264, 1265 (3d Cir. 1977) [uncle with whom defendant had left locked box for safekeeping could not consent to police search]; U.S. v. Wilson, 536 F.2d 883, 884-85 (9th Cir. 1976) [apartment holder could not consent to search of defendant’s suitcases where she “disclaimed any ownership or possessory interest in them”];
U.S. v. Sullivan, 544 F. Supp. 701, 715 (D. Maine, 1982) [“Where a locked container is left with a bailee who has no key and claims no right of access, it seems clear that the bailor has assumed little risk of its inspection by anyone”]; State v. Tanner, 745 P.2d 757, 765 (Or. 1987) [items given as collateral for loan, owner still has standing to assert search was illegal].
Thus, defendants have standing to complain regarding the search of items entrusted to another if they took measures to ensure their privacy in the contents of those items. See U.S. v. Lonagaugh, 494 F.2d 1257, 1262 (5th Cir. 1973)[person boarding plane alone accompanied by bags checked for Defendant not on plane, Defendant has standing]; U.S. v. Haydel aka “Ice Cream”, 649 F.2d 1152 (5th Cir. 1981)[defendant in tax case had a legitimate expectation of privacy with respect to records he hid in his parents’ home, under their bed, since “Ice Cream” exhibited a subjective expectation that it would be free from Government invitation and because he took precautions to maintain privacy]; U.S. v. Barry, 853 F.2d 1479, 1481-1482 (8th Cir. 1988)[defendant had standing regarding suitcase he checked-in in the name of another]; U.S. v. Daniel, 982 F.2d 146, 150-161 (5th Cir. 1993)[package sent on airplane, recipient had standing]; U.S. v. Lovell, 849 F.2d 910, 916 (5th Cir. 1988)[checked baggage]; U.S. v. Villareal, 963 F.2d 770, 774 (5th Cir. 1992)[barrels not addressed to intended recipients shipped by private carrier, recipients had standing]; U.S. v. Medernos Gomez, 312 F.3d 920 (8th Cir. 2002)[package addressed to place not associated with Defendant recipient, defendant had standing]; U.S. v. Buchner, 7 F.3d 1149, 1154 (5th Cir. 1993)[owner of a suit case contained in another’s car has a legitimate expectation of privacy in the contents of the suitcase], cert. denied sub nom, Buchner v. U.S., 510 U.S. 1207, 114 S.Ct. 1331, 127 L.Ed.2d 678 (1994); U.S. v. Freire, 710 F.2d 1515, 1519 (11th Cir. 1983)[defendant had standing to complain of the search of his briefcase in the possession of another who had been instructed to protect his privacy]; U.S. v. Haqq, 213 F. Supp. 2d 383 (S.D. N.Y. 2002)[defendant charged with a firearms offense had standing to complain about the search of records contained in a borrowed suitcase hidden under his acquaintance’s bed]. It is not the ownership of the item which determines standing, but the defendant’s recipient status and the expectations, agreement and measures which he took to assure privacy which control.
NO PROPRIETARY INTEREST IN DWELLING
An accused may demonstrate a legitimate expectation of privacy even in a dwelling in which he has no proprietary interest by establishing such things as:
- his clothes were maintained or located in the room;
- he was present at the time of the search;
- he had other items of personal belongings in the room where he and the items seized were found; or
- present with owner’s
In Minnesota v. Olson, 495 U.S. 91, 109 L.Ed.2d 85, 110 S.Ct. 1684 (1990) defendant was not a tenant, had no possessions at duplex except for a change of clothes, slept on the floor, had permission to stay there for some indefinite period and had right to allow or refuse visitors.
“The State argues that [the defendant’s] relationship to the premises does not satisfy the 12 factors which in its view determine whether a dwelling is a ‘home’. Aside from the fact that it is based on the mistaken premise that a place must be one’s ‘home’ in order for one to have a legitimate expectation of privacy there, the state’s proposed test is needlessly complex. We need go no further than to conclude, as we do, that [the defendant’s] status as an overnight guest is alone enough to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable. To hold that an overnight guest has a legitimate expectation of privacy in his host’s home merely recognizes the everyday expectations of privacy that we all share. Staying overnight in another’s home is a longstanding social custom that serves functions recognized as valuable to society. We will all be hosts and we will all be guests many times in our lives. From either perspective, we think that society recognizes that a houseguest has a legitimate expectation or privacy in his host’s home.” [distinguishing Rakas].
Contra Residing in “drop house” by illegal alien held insufficient to confer standing. U.S. v. Briones- Garza, 680 F.2d 417, 421 (5th Cir. 1982) [while term “residence” may often be an important consideration, it is not talismanic].
“Squatters” on government property lack a reasonable expectation of privacy in their ‘homes’.” U.S. v. Ruckman, 806 F.2d 1471 (10th Cir. 1986); Amezquita v. Hernandez-Colon, 518 F.2d 8 (1st Cir. 1975).
Lessee of premises has generally been held to have standing to contest a search of same. U.S. v. Callazo, 732 F.2d 1200, 1204 (4th Cir. 1984) [expanding to even one “given control” by a lessee]; U.S. v. Little, 735 F.2d 1049, 1053-54 (8th Cir. 1984). But see U.S. v. Gomez, 770 F.2d 251 (1st Cir. 1985) [no legitimate expectation of privacy for standing purposes where defendant was technical lessee of apartment but had not lived there for four months prior to search, no evidence of possession or control, or that he was able to exclude others or that he personally used or had access to premises and failed to provide evidence of a subjective expectation of privacy in area searched].
FAILURE TO ASSERT INTEREST
Defendant, who failed to assert any interest in a house lacked standing to contest search of premises, even though Court recognized Defendants were “custodian of the drug warehouse”, were seen entering house and one had front door key when arrested. U.S. v. Molina-Garcia, 634 F.2d 217 (5th Cir. 1981).
FAILURE TO PAY RENT
Absent lessee had no standing to contest search of apartment where his lease had expired five (5) days prior by virtue of his failure to pay rent. U.S. v. Buchanan, 633 F.2d 423 (5th Cir. 1980); Webb v. State, 752 S.W. 2d 208, 212 (Tex. App. Hou. [1st Dist] (1988); Voelkel v. State, 717 S.W.2d 314 (Tex.Crim.App. 1986).
Lawful occupant of a hotel or motel room has reasonable expectation of privacy therein, albeit qualitatively different from that which he may enjoy in his home. U.S. v. Agapito, 620 F.2d 324, 331 (2d Cir. 1980).
“The occupants of a hotel room are entitled to the protection of the Fourth Amendment …but the reasonable privacy expectations in a hotel room differ from those in a residence… In view of the transient nature of hotel guests …one cannot be sure who his neighbors are in a hotel room. A person in a residence generally knows who his neighbors are. A person in a hotel room therefore takes a greater risk than one in a residence that, instead of neighbors, an adjoining room may contain strangers or, as in this case, even persons with interests adverse to his own.” U.S. v. Agapito, 620 F.2d at 331. See also U.S. v. Tolliver, 780 F.2d 1177, 1185 (5th Cir. 1986).
This same Court held that illegally obtained evidence may be considered in determining probable cause to arrest a defendant where he or she had no standing to complain of the prior search or arrest. In Tolliver, defendants arrested at a motel were held to lack standing to challenge the arrest of co-defendants after those co- defendants had left the motel. Consequently, the fruits of those co-defendants’ arrests could be used to establish probable cause for the arrest of defendants still at the motel. See also U.S. v. Ramirez, 810 F.2d 1338 (5th Cir. 1987) [search of motel room upheld despite fact that agents deliberately waited for rental period to expire].
MOTEL GUEST’S EXPECTATIONS AFTER CHECKOUT TIME
Where defendant leaves personal effects in hotel room after the expiration of his rental term [past posted checkout time] it has been held he loses any reasonable expectation of privacy. See U.S. v. Jackson, 585 F.2d 653 (5th Cir. 1978). But see U.S. v. Owens, 782 F.2d 146 (10th Cir. 1986) [a motel guest’s right to privacy was violated, even though motel claimed he had remained beyond checkout].
Similarly, overnight guests maintain an expectation of privacy in the place they are invited to stay so long as they are welcome. Granados v. State, 85 S.W.3d 217 (Tex.Crim. App. 2002)[guest asked to move out twelve hours before, no longer had standing to complain of search of apartment].
MOTEL ROOMS AND EAVESDROPPING NEIGHBORS
U.S. v. Mankani, 738 F.2d 538 (2d Cir. 1984).
A government agent who overheard conversations through an adjoining wall in a hotel room without a warrant did not violate the suspect’s reasonable expectation of privacy. The Court utilized the same analysis as set out in U.S. v. Agapito, 620 F.2d 324 (2d Cir. 1980), which included the following factors: where the eavesdropping took place, whether the agents had a right to be in the adjoining room; and whether the agents were aided by any artificial, mechanical or electronic devices.” U.S. v. Mankani, 738 F.2d 538 (2d Cir. 1984).
See also Marullo v. U.S., 328 F.2d 361, 363 (5th Cir. 1964) [noting a private home is completely different from a motel room]; U.S. v. Jackson, 585 F.2d 653 (5th Cir. 1978); U.S. v. Clement, 854 F.2d 1116 (8th Cir. 1988) [that despite a lack of evidence that arrested drug sellers had planned to return to hotel room, exigent circumstances permitted the agents to forcibly enter and search the hotel room where the arrestee’s associates were based on the possibility that those associates might grow nervous, and might destroy drugs].
In Texas, an officer may approach a citizen in a public place or knock on a door to ask questions or seek consent to search. The officer need not have reasonable suspicion to do so as long as the officer does not indicate that compliance is required. In Carranza, record showed that the deputies knocked on the defendant’s door, he opened the door, the deputies asked for consent to search the room, and he gave consent by saying “yes,” and then stepping away from the door stating he had nothing to hide. The record did not indicate that the defendant was led to believe he had no right to refuse consent. The deputies did not need a reasonable suspicion to legally knock on the defendant’s hotel room door.] Carranza v. State, 162 S.W.3d 407(Tex. App-Beaumont 2005)
OVERNIGHT TRAIN BERTHS
U.S. v. Colyer, 878 F.2d 469 (D.C. Cir. 1989) [a passenger has no reasonable expectation of privacy from drug dog sniff in an overnight train berth on an Amtrak train].
Standing to contest search of corporate offices is not conferred merely because one is a corporate officer.
See U.S. v. Vicknair, 610 F.2d 372, 379 (5th Cir. 1980); U.S. v. Lefkowitz, 618 F.2d 1313, 1316 (9th Cir. 1980);
U.S. v. Britt, 508 F.2d 1052, 1055-56 (5th Cir. 1975); U.S. v. Bush, 582 F.2d 1016 (5th Cir. 1978); U.S. v. Evans, 572 F.2d 455 (5th Cir. 1978).
But, a legitimate expectation of privacy may be established by showing “a sufficient proprietary interest in the suite [of officer] which was the target of the search and where corporate records were seized, to impart standing.” U.S. v. Lefkowitz, 618 F.2d 1313, 1316 n.2 (9th Cir. 1980).
Otherwise, indicia of standing in the corporate office context would include:
- “ each defendant’s position in the firm;
- [whether] he had any ownership interest;
- his responsibilities;
- his power to exclude others from the area;
- did he work in the area;
- was he present at the time of the ..
- additional security measures: (g. locked doors and cabinets)” at U.S. v. Brien, 617 F.2d 299, 306 (1st Cir. 1980).
But see U.S. v. Horowitz, 806 F.2d 1222, 1226 (4th Cir. 1986) [a defendant had no legitimate expectation of privacy in the computer memory system of a company electronically linked to a terminal in his home office and into which he had transmitted information]; U.S. v. Webbe, 652 F. Supp. 20, 27 (E.D. Mo. 1986) [no standing to contest search in reception area].
OWNER OF VEHICLE
The owner of a searched vehicle generally has standing to object to an illegal search, Rosencranz v. U.S., 356 F.2d 310, 312-13 (1st Cir. 1966); U.S. v. Eldridge, 302 F.2d 463 (4th Cir. 1962) [an automobile gratuitously bailed to a friend]; U.S. ex rel Coffey v. Fay, 344 F.2d 625 (2d Cir. 1965); Henzel v. U.S., 296 F.2d 650 (5th Cir. 1961); U.S. v. Mulligan, 488 F.2d 732, 736 (9th Cir. 1973) [an automobile loaned to another and registered under fictitious name]; U.S. v. Mendoza, 473 F.2d 692, 695 (5th Cir. 1972) [property interest in automobile]; U.S. v. Foster, 506 F.2d 444 (5th Cir. 1975) [ property interest in automobile]. Matthews v. State, 164 S.W.3d 104 (Tex. App-Fort Worth 2005) [Standing is coequal with the concept of expectation of privacy. A defendant has standing to challenge a search if his expectation of privacy was violated. “The owner of a vehicle has standing to contest the search because the owner has an expectation of privacy. A defendant also has standing to challenge the search of a car he does not own if he shows that he gained possession of the car from the owner with the owner’s consent or from someone authorized to give permission to drive it. In this case, the trial court found that defendant was driving his mother’s car, that they lived at the same address, and that the car was usually driven by defendant and his wife. Defendant testified without contradiction that the vehicle was never driven by his mother. This evidence is uncontroverted, and there is no evidence that the truck was stolen.]
Also see Kothe v. State, 152 S.W.3d 54 (Tex.Crim.App.2004). [During the search of driver’s passenger, because DWI suspect had a reasonable expectation of privacy in not being subjected to an unduly prolonged detention, he has standing to challenge the seizure of evidence obtained by exploiting that detention.]
POSSESSOR OF VEHICLE
Simpson v. U.S., 346 F.2d 291 (10th Cir. 1965) [possessory interest in automobile owned by another];
U.S. v. Ochs, 595 F.2d 1247 (2d Cir. 1979) [defendant had permission to use car, had keys as well as complete dominion and control over vehicle].
Even one not in possession but who had been “given control” of the vehicles by a lessee has standing. See
U.S. v. Little, 735 F.2d 1049, 1053-54 (8th Cir. 1984) [where lesee gave defendants control over an airplane, the defendants had a reasonable expectation of privicay];U.S. v. Posey, 663 F.2d 37, 41 (7th Cir. 1981) [defendant had a reasonable expectation of privacy in a vehicle that was owned by his wife when he was operating that vehicle]; U.S. v. Griffin, 729 F.2d 475, 483 (5th Cir. 1984) [conferring standing on both driver and passenger, where both given permission to use vehicle].
“Despite the fact that neither [Defendant] owned or had a property interest in the 1982 Corvette in which 805 grams of phencyclidine were found, both defendants had a legitimate expectation of privacy in the vehicle. According to the district court’s findings of fact [one of the Defendants] close relative, his brother,…owned the Corvette and with [his] permission, both …were exercising exclusive control over the vehicle on the evening of December 2, 1982. Thus, [both] had standing to claim that the inventory search of the 1982 Corvette violated their privacy rights under the Fourth Amendment.” U.S. v. Griffin, 729 F.2d at 483.
PASSENGER IN VEHICLE
The Supreme Court has held that a passenger in a stopped vehicle is seized and therefore entitled to challenge the stop. If the stop is held to be unconstitutional, the defendant is then entitled to suppression of any evidence obtained as a result of the illegal search. Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400 (2007).
RESURRECTING STANDING FROM ITS SUPINE POSITION BROWER v. INYO & PENNSYLVANIA v. BRUDER.
(“A WORD MEANS WHAT WE WANT IT TO MEAN”)
Although viewed from different contexts, the Supreme Court this term distinguished what constitutes a “seizure” for Fourth Amendment, as opposed to Fifth Amendment purposes. In Brower v. Inyo, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989), a civil case, the Court held that for Fourth Amendment purposes:
“‘[W]henever an officer restrains the freedom of a person to walk away, he has seized that person.'”
Brower v. Inyo, 103 L.Ed.2d at 634.
“The complaint here sufficiently alleges that respondents …sought to stop Brower by means of a roadblock and succeeded in doing so. That is enough to constitute a ‘seizure’ within the meaning of the Fourth Amendment.” Brower v. Inyo, 103 L.Ed.2d at 637.
The same term the Court, in Pennsylvania v. Bruder, 488 U.S. 9, 109 S.Ct. 205, 102 L.Ed.2d 172, (1988), held that the “in custody requirement” for Fifth Amendment Miranda purposes is not triggered even though “the stop was unquestionably a seizure within the meaning of the Fourth Amendment”. Pennsylvania v. Bruder, 488 U.S. 9, 109 S.Ct. 205, 102 L.Ed.2d at 176.
“[T]he ‘noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not ‘in custody’ for the purposes of Miranda. The Court reasoned that although the stop was unquestionably a seizure within the meaning of the Fourth Amendment, such traffic stops typically are brief, unlike a prolonged station house interrogation. Second, the Court emphasized that traffic stops commonly occur in the ‘public view’, in an atmosphere far ‘less ‘police dominated’ than that surrounding the kinds of interrogation at issue in Miranda itself.’ The detained motorist’s ‘freedom of action [was not] curtailed to ‘a degree associated with formal arrest.” Accordingly, he was not entitled to a recitation of his constitutional rights prior to arrest, and his roadside responses to questioning were admissible.” Pennsylvania v. Bruder, 488 U.S. 9, 109 S.Ct. 205, 102 L.Ed.2d at 176 (citations omitted).
Consider utilizing the court’s willingness to find a seizure more readily in Fourth Amendment analysis as a basis for asserting a passenger’s standing by refocusing the courts inquiry from whether a passenger has a reasonable expectation of privacy in the vehicle in which he or she was traveling, to whether the search of the vehicle was incident to the arrest or “seizure” of its occupants. At least one Court has held that a passenger in a vehicle has standing to complain of his own seizure or arrest and any search of himself or the vehicle (under N.Y. Belton’s, “bright line rule”) incident to that arrest. U.S. v. Flores, No. 87-CR-193 (W.D. Tex. 1988).
“This case is not about standing in the traditional sense… The Court need not determine whether either defendant had a legitimate expectation of privacy in the passenger compartment of the van…
This Court is of the opinion that both Defendants have standing to object to their arrests and the search incident to that arrest, despite traditional notions that privacy interests in a rented vehicle might be limited…
[n]one of the defendants in either Rakas or Williams were arrested before the challenged searched.
Here on the other hand, the Defendants were arrested before the search and they do challenge the legality of the arrests and claim that their rights under the Fourth Amendment are violated.” United States v. Mendoza-Burciaga, 981 F.2d 192 (5th Cir. 1992).
Some care should be utilized in setting out this theory with specificity prior to pinning down police witnesses on whether their search was incident to the arrest, rather than on some other, more fruitful theory.
The Tenth Circuit holds only persons named or authorized by the rental contract have standing to complain about the search of the rental vehicle.
See U.S. v. Obregon, 748 F.2d 1371 (10th Cir. 1984) [a defendant who was driving a rented car but whose name did not appear on rental contract or any other documents either as renter or authorized driver did not have standing to challenge search of vehicle].
The Eleventh Circuit held that a person still had proper standing even though their rental vehicle was overdue by four days. See U.S. v. Cooper, 133 F.3d 1394, 1400 (11th Cir. 1998) [defendant had a reasonable expectation of privacy in a rental vehicle that was four days past due].
The Ninth Circuit has held that a motorist whose name does not appear as an authorized driver on a rental car agreement nevertheless has an expectation of privacy in the car that is protected by the Fourth Amendment so long as the motorist received permission to possess the car from someone listed on the agreement. United States
- Thomas, 447 F.3d 1191 (9th Cir. 2006) State and federal courts are divided as to how to apply the Fourth Amendment to unauthorized drivers of rental cars, and the issue was one of first impression in the Ninth Circuit.
“JOINT VENTURE” OR “CO-CONSPIRATOR” STANDING
Absent owners of boat, involved in a “joint venture” to smuggle marijuana, had standing to complain of search of vessel’s concealed hold. U.S. v. Quinn, 751 F.2d 980, 981 (9th Cir. 1984) [relying upon the accused’s “ownership of both the place searched and the items seized”]. “Where a joint venture is being pursued, the mere fact of a joint venturer’s absence from the place searched is insufficient to establish abandonment or relinquishment of the property seized.” U.S. v. Quinn, 751 F.2d at 981.
Owner of trucks as well as corporation which had possessory interest in them at time of seizure have standing to object to stop of trucks and seizure of weigh bills carried by truck driver. But see U.S. v. $47,875.00 in U.S. Currency, 746 F.2d 291 (5th Cir. 1984) [strict construction to State joint venture and partnership statutes to find a co-conspirator’s interest was not sufficient to give him a reasonable expectation of privacy – “under Texas law, a joint venture must be based on either an express or implicit agreement containing these essential elements: (1) a community of interest in the venture, (2) an agreement to share profits, (3) an agreement to share losses, and (4) a mutual right of control or management of the enterprise… Where any one of these elements is absent, no joint venture exists”]. U.S. v. Schaefer, 637 F.2d 200 (3d Cir. 1980).
NON-OWNER OF VEHICLE, NOT PRESENT AT SEARCH
Those not present in truck rented by another (formal agreement and riding in escort/surveillance truck nearby) still have a reasonable expectation of privacy. U.S. v. Perez, 689 F.2d 1336, 1381 (9th Cir. 1982).
POSSESSORY INTEREST IN DRUGS WILL CONFER STANDING
The Supreme Court rejected the co-conspirator analysis of the 9th Circuit in reversing U.S. v. Padilla, 508 U.S. 77, 113 S.Ct. 1936, 123 L.Ed.2d 635 (1993). “Participation in a criminal conspiracy may have expectations such as interest [of privacy], but the conspiracy itself neither adds nor detracts from them.” U.S.v Padilla, 508 U.S. 77, 113 S.Ct. at 1939.
Consequently, a fact specific analysis of each person’s expectations is required. See U.S. v. Villarreal, 963 F.2d 770, 76-77 (5th Cir. 1992) [two co-conspirator’s who received a drum under a single fictitious name and returned possession of a single receipt for the drum had a legitimate expectation of privacy.]”
Contra U.S. v. Dall, 608 F.2d 910, 914 (1st Cir. 1979) [which held owner ship alone is not enough to determine reasonable expectation of privacy]; U.S. v. One 1967 Cessna Aircraft, 454 F. Supp. 1352, 1357 (C.D. Cal. 1978) [standing conferred on one who had paid part of purchase price although had neither possession of more keys to the searched aircraft].
LIEN INTEREST IN PROPERTY
A lien interest has been held sufficient to establish standing for similar probable cause hearings in the forfeiture context. See U.S. v. All That Tract and Parcel of Land, 2306 North Eiffel Court, 602 F. Supp. 307, 311 (N.D. Ga. 1985) [credit corporation as lien-holder with security interest in the defendant property had “standing” to contest its seizure]; U.S. v. One (1) 1980 Stapleton Pleasure Vessel Named Threesome, Registration No. FL 4180EA, 575 F. Supp. 473, 477 (D.C. Fla. 1983) [ownership for purposes of establishing standing to contest forfeiture action may be established by demonstrating a “financial stake” in the property seized]; U.S. v. One 1945 Douglas C-S4, Etc., 647 F.2d 864, 866 (8th Cir. 1981) [standing may be evidenced in a number of ways including demonstrating a “financial stake”]; U.S. v. One Porsche Coupe, 364 F. Supp. 745, 748 (E.D. Pa. 1973) [court looks to who would actually suffer from the loss of the property]; U.S. v. One 1961 Cadillac Hardtop Automobile, Etc., 207 F. Supp. 693, 697-98 (E.D. Tenn. 1962) [lienholder has a right to intervene to test the legality of a seizure].
ADDRESSEE & ADDRESSOR BOTH HAVE STANDING TO CONTEST SEARCH OF PACKAGE IN POSSESSION OF COMMON CARRIER
The Fifth Circuit has held that both the addressee and the addressor of a package entrusted to a common carrier have standing to contest the search of that package, even where both used false names, so long as the defendant was the real intended recipient of the package. U.S. v. Villarreal, 963 F.2d 770 (5th Cir. 1992).
DRIVER OF VEHICLE
The driver of a vehicle has a reasonable expectation of privacy in same in that he has dominion and control over everyone except the true owner. See U.S. v. Portillo, 633 F.2d 1313, 1317 (9th Cir. 1980); U.S. v. Arce, 633 F.2d 689 (5th Cir. 1980); U.S. v. Lopez, 474 F. Supp. 943 (C.D. Cal. 1979). Contra U.S. v. Odum, 625 F.2d 626, 628 (5th Cir. 1980) [defendant lacked standing even though he “was the driver and sole occupant of the loadstar truck when it was stopped”, where “He denied knowing who owned the truck or that the truck was loaded with the contraband”]; U.S. v. Obregon, 748 F.2d 1371 (10th Cir. 1984) [a defendant who was driving a rented car but did not appear on rental contract or any other documents either as renter or authorized driver did not have standing to challenge search of vehicle].
PASSENGER OF VEHICLE
Ordinarily a passenger in a vehicle would have no reasonable expectation of privacy. See Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); U.S. v. Portillo, 633 F.2d 1313, 1317 (9th Cir. 1980); U.S. v. Whitfield, 629 F.2d 136 n.4 (D.C. Cir. 1980).
Taxicab passengers have been held to have standing to complain of the search and seizure of items found under the driver’s front seat.
Chapa v. State, 729 S.W.2d 723, 725-29 (Tex.Crim.App. 1987).
“At issue in this cause is whether a ‘passenger qua passenger’ in a taxicab has ‘standing’ to challenge a search of the interior of the cab under the Fourth Amendment to the United States Constitution, in light of the Supreme Court’s opinion in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).
That the driver of the cab, though a perfect stranger, may have shared a degree of privacy in the area beneath the front seat (as opposed to receptacles kept there, belonging exclusively to him) does not defeat appellant’s reasonable claim to freedom from government intrusion there.
We hold that appellant qua fare in a taxicab had a legitimate expectation of privacy in, and hence standing to challenge the search of, the area under the front seat of the taxicab.” Chapa v. State, 729 S.W.2d 723, 725-29 (Tex. Crim. App. 1987).
See also Bates v. State, 494 A.2d 976, 980 (Md. App. 1985) [distinguishing an individual who has hired a taxicab “unlike the defendants in Rakas v. Illinois, 439 U.S. 128 (1978), who, as ‘mere agents’ are not entitled to challenge a search of the car in which they were riding, one who hires a taxi has an objectively reasonable expectation of privacy for the period of his use”].
LEGITIMATELY ON PREMISES
Being legitimately on the premises is also insufficient. In Rakas v. Illinois, the Supreme Court overruled the one prong of Jones v. U.S., 362 U.S. 257, 261-64, 80 S.Ct. 725, 4 L.Ed.2d 697, granting standing to any person “legitimately present on the premises”. The court holding that a defendant’s “legitimate presence on the premises” while not “irrelevant”, “it cannot be deemed controlling”, noting that the defendant there “asserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized”. See also U.S. v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980) [defendant has no standing to complain of evidence obtained by police authorized burglary of third person].
Katz v. U.S., 389 U.S. 347, 88 S.Ct. 507, 607, 19 L.Ed.2d 576 (1967).
Peep show booths:
Liebman v. State, 652 S.W.2d 942 (Tex.Crim.App. 1983).
Contra Green v. State, 566 S.W.2d 578 (Tex. Crim. App. 1978) [where the booth’s curtains did not fully cover the entrance, no reasonable expectation of privacy]; Commonwealth v. Oreto, 482 N.E.2d 329 (Mass.App. 1985) [searching inside of passing car at night with spotlight held not to be an illegal search].
POSSESSORY INTEREST IN ITEMS SEIZED
Possessory interest in the property seized standing alone may be insufficient to establish standing. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980) [holding, however, there “the record contains a frank admission by petitioner that he had no subjective expectation that Cox’s purse would remain free from Governmental intrusion”].
Courts have held that an airline passenger has a reasonable expectation of privacy in his checked baggage, even though he had another person remove the suitcases from the luggage carousel. U.S. v. Fernandez, 772 F.2d 495 (9th Cir. 1985). See also Bond v. U.S., 529 U.S. 334, 338-39, 120 S.Ct. 1462 (2000) [the defendant sought to preserve his privacy by placing the brick of cocaine in an opaque bag and placing it directly above his seat and that a traveler’s personal luggage is an “effect” protected by the Fourth Amendment right to be secure against unreasonable searches and seizures]; U.S. v. Barry, 853 F.2d 1479, 1481-82 (8th Cir. 1988) [even though bag of stolen goods was checked in proposed buyer’s name].
CHARGED WITH “POSSESSORY CRIME”
It appeared that any “automatic standing” arising from the so-called “vice of prosecutorial self contradiction” where the defendant is charged with a possessory offense, established in Jones v. U.S., 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d (1960), was overruled in U.S. v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). As to the “vice against prosecutorial self-contradiction” the Court stated:
“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.” U.S. v. Salvucci, 448 U.S. at 92.
“AUTOMATIC STANDING” NOT DEAD, JUST RESTING
A least one court, however, exhumed the vice against prosecutorial self-contradiction to preclude the Government from raising standing on appeal even where the accused admittedly “fail[ed] to prove that he had a legitimate expectation of privacy” in the place searched. U.S. v. Morales, 737 F.2d 761, 763-64 (8th Cir. 1984).
“Despite appellant’s failure to prove that he had a legitimate expectation of privacy in room 141, we nonetheless find that because of the inconsistent positions the government has taken at trial and on appeal concerning appellant’s alleged disclaimer of knowledge of the key, the government has lost its right to challenge appellant’s standing. At the suppression hearing, the government argued that because appellant disclaimed knowledge of the key which he possessed, he must have been in wrongful possession of the key and therefore had burglarized room 141. At trial, the government successfully argued that because appellant had possession of the key, he had dominion and control over room 141 and therefore had constructive possession of the cocaine seized from the room. Now on appeal, the government argues that because appellant disclaimed knowledge of the key, he abandoned the key and could not therefore have a legitimate expectation of privacy in room 141.” U.S. v. Morales, 737 F.2d at 763-64.
See also U.S. v. Issacs, 708 F.2d 1365, 1368 (9th Cir. 1983). “[The defendant’s] denial of ownership should not defeat his legitimate expectation of privacy in the space invaded and thus his right to contest the lawfulness of the search when the government at trial calls upon the jury to reject that denial.” U.S. v. Issacs, 708 F.2d at 1368.
TESTIMONY BY THE ACCUSED
The defendant may testify at the pretrial motion to suppress hearing (e.g., to establish his standing to suppress evidence) without rendering such testimony admissible against him in the prosecution’s case in chief at the trial on the merits. The theory being that an accused should not be required to forfeit one Constitutional right [here his Fifth Amendment privilege] in order to effectively exercise another [that being his Fourth Amendment right to be free from the unreasonable searches]. See Simmons v. U.S., 390 U.S. 377, 394, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); U.S. v. Mantos, 421 F.2d 214, 200 n.2 (5th Cir. 1970).
FED. R. EVID. Rule 104(d) provides that:
“The accused does not, by testifying upon a preliminary matter subject himself to cross-examination as to other issues in the case.” FED. R. EVID. Rule 104(d).
Accordingly, it would appear that at least under the Federal Rules of Evidence defense counsel would be able to limit cross- examination to the issue presented on direct.
See Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 2561 n.3, 65 L.Ed.2d 633 (1980), for demonstration of how not to make a Simmons proffer.
But see U.S. v. Boruff, 870 F.2d 316 (5th Cir. 1989) [testimony of a third-party witness, called by the defendant at the suppression hearing in an effort to establish standing may be used by the Government at trial].
FAILURE TO TAKE ADVANTAGE OF SIMMONS MAY BE CONSIDERED
Some courts have even considered the accused’s failure to testify at pretrial suppression hearing against them.
“The defendants could have rebutted that showing by their own testimony at the suppression hearing, and they could have done so without material prejudice to their rights, as their testimony at the suppression hearing could not have been used against them (other than for impeachment) at trial. In general, the failure to produce a favorable witness or other evidence when it is peculiarly within a party’s power to do so creates an inference that the witness’ testimony will be unfavorable. Some application of this rule is appropriate …[s]ince the defendants could have testified without material prejudice to their rights at trial, their failure to present evidence contradicting that presented by the government warrants at least some inference that the March 3 statements were, as they purported to be, properly obtained.” U.S. v. Charles, 738 F.2d 686 (5th Cir. 1984), abrogated on other grounds by United States v. Bengivenga, 738 F.2d 686 (5th Cir. 1984).
STIPULATION AS TO STANDING
A “stipulation” by the Defendant that the luggage is his has been held sufficient to confer standing. U.S. v. Mazzelli, 595 F.2d 1157 (9th Cir. 1979), vacated by U.S. v. Conway, 448 U.S. 902, (1980).
However, if the defendant thereafter takes the stand at the trial on the merits in his own defense, there is the possibility that his testimony, given at the pretrial hearing, could be used by the prosecution for impeachment purposes or cross-examination. See Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) [allowing use for impeachment of a confession obtained in violation of Miranda]; U.S. v. Havens, 446 U.S. 620, 628, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980) [allowing evidence illegally obtained in violation of Defendant’s Fourth Amendment rights, to be used for impeachment of response to cross-examination reasonably suggested by his direct examination].
STANDING MAY NOT BE RAISED FOR THE FIRST TIME ON APPEAL
The law is clear that the government may not raise a defendant’s lack of standing to contest a search for the first time on appeal.
See Steagald v. U.S., 451 U.S. 204, 209-211 (1981); Combs v. U.S., 408 U.S. 224, 226-7 (1972); U.S. v. Ford,
525 F.2d 1308, 1310 (10th Cir. 1975); U.S. v. Morales, 737 F.2d 761, 764 (8th Cir. 1984); U.S. v. Sanchez, 689
F.2d 508, 509, n. 1 (5th Cir. 1982); U.S. v. Mendoza, 722 F.2d 96, 97, n. 1 (5th Cir. 1983); U.S. v. Amuny, 767
F.2d 1113, 1121 (5th Cir. 1985):
“Before we discuss the merits of the appellant’s search and seizure claim, we must address an issue that has arisen with disturbing regularity in this circuit – the government’s failure to raise in the district court its claim on appeal that the appellants lack standing to challenge the allegedly illegal search and seizure…
Consistent with the ordinary rule of appellate procedure, we usually will not entertain a claim raised for the first time on appeal And we have rejected repeatedly the government’s standing challenges where the government failed to raise the issue before the district court.” Amuny, 767 F.2d at 1121.
Contra Sullivan v. State, 564 S.W.2d 698 (Tex.Crim.App. 1978) (op. on reh’g), overruled in part on other grounds, Comer v. State, 754 S.W.2d 698, 704 (Tex.Crim.App. 1988) [the state may raise the issue of a defendant’s standing for the first time on appeal in those situations where the evidence shows that the defendant had no standing to litigate the search]; Sutton v. State, 711 S.W.2d 136 (Tex.App.-Houston [14th Dist.] 1986).
DETERMINATION OF LEGALITY OF STOP OR SEARCH IN PRIOR PROCEEDING MAY “COLLATERAL ESTOP” RECONSIDERATION OF THAT ISSUE IN SUBSEQUENT PROSECUTION:
See Ferenc v. Dugger, 867 F.2d 1301, 1304 (11th Cir. 1989) [citing U.S. v. McKim, 509 F.2d 769, 775 (5th Cir. 1975)].
The question was “whether the doctrine of collateral estoppel precludes the state’s use of evidence, previously suppressed on Fourth Amendment grounds in a prior state court proceeding, in a subsequent, unrelated criminal action against the same defendant”. Ferenc v. Dugger, 867 F.2d 1301. (11th Cir. 1989).
The court, recognizing a two prong inquiry and that the question of the lawfulness of a search and seizure is a mixed question of law and fact, found that the state was not estopped from raising the Fourth Amendment issue again. To effectively estop the prosecution:
“First, the issue sought to the foreclosed from consideration must have been resolved in the defendant’s favor at the prior trial…. Second, the fact which the defendant seeks to exclude must have been essential to conviction in the first trial.” Id. at 1303-04.
VICE OF PROSECUTORIAL SELF-CONTRADICTION
Where the State has charged an individual with an offense which will require proof of that individual’s possession of contraband beyond a reasonable doubt, the State cannot claim, at the same time, that individual had insufficient interest in the property to complain about its search.
In U.S. v. Morales, 737 F.2d 761, 763 (8th Cir. 1984), the defendant disclaimed ownership of a key to a motel room containing contraband, the government argued first that defendant has “…constructive possession of the cocaine because he had dominion and control over room 141”, U.S. v. Morales, 737 F.2d at 763, and then argued later that defendant did not have standing to challenge the search of the room. U.S. v. Morales, 737 F.2d at 763. In reversing the conviction and remanding, the Eighth Circuit held that the Government could not challenge the defendant’s standing to complain about the search:
“Despite appellant’s failure to prove that he had a legitimate expectation of privacy in room 141, we nonetheless find that because of the inconsistent positions the government has taken at trial and on appeal concerning appellant’s alleged disclaimer of knowledge of the key, the government has lost its right to challenge appellant’s standing.
…We believe that the government should not be permitted to use at the suppression hearing appellant’s alleged disclaimer to support a warrantless entry, then argue at trial that appellant’s possession of the key supported constructive possession of the cocaine, and now on appeal argue that the disclaimer constituted abandonment to defeat an expectation of privacy.” U.S. v. Morales, 737 F.2d at 763-64.
In U.S. v. Isaacs, 708 F.2d 1365 (9th Cir. 1983), cert. denied, 464 U.S. 852 (1983). The government argued at the suppression hearing that the defendant had no standing to contest the search of a safe located in his apartment because he denied ownership of it. Then at trial, the government argued that the defendant had sufficient possessory interest in the safe’s contents to prove his guilt at trial. In granting the defendant standing to contest the search the court noted:
“Here, however, the government wants it both ways: It seeks to rely on Isaacs disavowal of ownership to defeat his right to contest the lawfulness of the search at the same time it introduces the journal as evidence of his guilty. Yet the government cannot and does not dispute that Isaacs had a legitimate expectation of privacy in the safe itself, and there can be no question of abandonment of items found in the putative abandoner’s personal safe. Isaac’s denial of ownership should not defeat his legitimate expectation of privacy in the space invaded and thus his right to contest the lawfulness of the search when the government at trial calls upon the jury to reject that denial The government’s concession that Isaacs had ‘legitimate expectation of privacy in the invaded place; Rakas v. Illinois, 439 U.S. at 143, 99 S.Ct. at 430, precludes its contention that he had none in the items found there.” U.S. v. Isaacs, 708 F.2d at 1368.