The United States Constitution is a document which aims to limit the power of the federal government. In order to achieve this goal, the Constitution limits what the federal government can do by establishing a base line of rights for all persons in the United States. In criminal law, one of the most important base line rights given to persons by the Constitution is found in the 4 th amendment. The 4 th amendment protects people against unreasonable searches and seizures at the hands of the government. If evidence is obtained through a search or seizure that violates the 4 th amendment then the exclusionary rule (discussed later) may prevent the evidence from being used by the government at trial.
Originally, the 4 th amendment only applied to actions in federal court. However, in Wolf v. Colorado, the Supreme Court stated that the 14 th amendment incorporates the 4 th amendment as a tool to limit the powers of the state governments as well as the federal government. Under our current laws, the 4 th amendment applies equally to searches and seizures regarding criminal cases in both state and federal courts. Due to this application in both courts, the state and federal courts of appeals have created parallel case law pertaining to a 4 th amendment analysis. This case law differs in some areas, but the overarching standards are set by the Supreme Court of the United States in a long line of cases that analyze the scope and meaning of the 4 th amendment and how the amendment should apply under certain fact situations.
In this article, we will go step by step in analyzing a 4 th amendment challenge based on a search or seizure from law enforcement. We will focus largely on federal case law as stated by the Supreme Court, but will highlight important differences in Texas when necessary.
This article will be broken down in five parts:
PART ONE: THE PRELIMINARY HURDLES – STATE ACTION AND STANDING
The first element that must be shown for a successful challenge under the 4 th amendment is that the search or seizure involved state action. The 4 th amendment is designed to protect a person from unreasonable searches and seizures from the government only. This means that a private person may enter your home illegally, find evidence, and turn it over to the police with no 4 th amendment violation. This is commonly found when a private investigator is hired by a private individual for their services.
Usually, the state action element is obvious in a criminal case as the person that is obtaining the evidence is a FBI agent, state law enforcement officer, or someone else that is affiliated with the State or Federal government. However, this element becomes less clear when a private actor illegally obtains evidence while working for the government. The question is at what point does a private actor become a state actor for purposes of a 4 th amendment analysis? The Courts have determined that a search or seizure by a private actor can meet the state action element if the private actor is operating as an instrument for law enforcement or other state entity. Walter v. United States, 447 U.S. 649, 662 (1980).
For example, if an officer tells a private citizen to search your car to obtain evidence, that evidence would still be subject to a 4 th amendment analysis as the private actor was acting at the direction of the state. The State action prong would be met under those facts despite the fact that the evidence was obtained by a private individual. The government cannot hide behind the state action doctrine in this scenario to circumvent a 4 th amendment challenge.
Noteworthy here is a caveat that occurs in Texas law under Texas Code of Criminal Procedure §38.23. This section states that no evidence obtained by an officer or other person in violation of the United States Constitution, Texas Constitution, or Texas law shall be admitted against the accused in a criminal trial. The Texas law is more restrictive than the federal standard as state action is not a prerequisite to challenging the admission of illegally obtained evidence. The challenge would not be under the 4 th amendment in this situation, but instead, a challenge under §38.23 of the Texas Code of Criminal Procedure.
2. Standing
For a defendant to challenge a search or seizure under the 4 th amendment, the defendant must have standing to do so. Standing is an idea found throughout Constitutional law that states that a person cannot challenge government action without a recognized personal injury. In the context of 4 th amendment law, there are three separate ways that a defendant may have standing. One, the defendant was subject to a seizure of his person by a state action. Two, the defendant had an interest in the property seized. Three, the defendant had a legitimate expectation of privacy in the place searched. Illinois v. Rakas, 439 U.S. 128 (1978). The first two means to obtain standing regard the prohibition against unreasonable seizures. Any seizure must be justified by the appropriate level of suspicion to be reasonable under the 4 th amendment. Normally, whether the defendant was seized or detained is obvious from the facts. Likewise, determining whether a defendant had an interest in the property seized by a state actor is normally not a complex issue. Instead of standing, the main issue that stems from the legality of seizures revolves around having the appropriate level of suspicion to justify the seizure that takes place – an arrest or detention. This will be discussed in detail in parts 2 and 3.
The most litigated topic for standing relates to the third means to obtain standing outlined above – whether a defendant has the right to complain of an illegal search. For a defendant to have standing under a search, the issue can become quite complex. In Rakas, the Supreme Court pushed aside the longstanding rule that a defendant had standing to challenge a search if he was “legitimately on the premises.” In its place the Supreme Court gave life to the overarching theme for all standing issues involving a search – whether the defendant had a legitimate expectation of privacy in the place searched. To meet this standard the defendant must show that 1) the defendant manifested a subjective expectation of privacy in the place searched and 2) that subjective expectation is one that society would deem reasonable.
In line with the legal test determined in Rakas – the Supreme Court has issued case law that helps to determine standing in relation to some of the more common search issues that arise in criminal law.
1. Search of a Vehicle – whether the defendant has a legitimate expectation of privacy in an automobile
Often times, criminal cases begin with the search of a vehicle that has been stopped by law enforcement. The Supreme Court has looked at two different types of defendants in these cases – the driver/owner and the passengers. The Supreme Court has established a rule that passengers of a vehicle do not have standing to challenge the search of most compartments of a vehicle. In order to obtain standing to challenge a search of these compartments in a vehicle, the defendant must be the driver or the owner of that vehicle. This ruling is an outgrowth of the rule established in Rakas – the Supreme Court will find that a passenger in a vehicle does not have a legitimate expectation of privacy in most areas of an automobile. This includes the glove box, under the seats, the trunk, and most other compartments. This is true because an owner could peruse through these compartments as he wished or allow others into the car. The passenger does not have the same connection to, or control over, the vehicle as the driver/owner. A passenger is likely not able to exclude others from someone else’s vehicle. Due to these assumptions, his expectation of privacy is not reasonable under the eyes of the law. The Supreme Court’s findings make sense in this case. Most individuals in our society would not find it to be a personal intrusion on their expectation to privacy for an officer to go through another person’s car that he is merely riding in.
The rule in Rakas does not preclude all passengers from challenging any search in an automobile. If an officer went through the personal belongings of the passenger (like a purse), then certainly the Supreme Court, and all other courts, would agree that the passenger had a legitimate expectation of privacy in the thing searched. In an analysis, the ultimate question must always be the test in Rakas – does the defendant have a legitimate expectation of privacy in the thing or place searched.
2. Search of Another Person’s Home
Many of the same issues regarding standing in an automobile search apply to a defendant’s challenge to the search of another person’s home. Let’s say that a defendant is charged with possession of a controlled substance in state court. The controlled substance was obtained when officer’s entered the home of the defendant’s friend without a warrant and without probable cause. Without some established exigency, this would be an illegal search of the friend’s home. However, the defendant in this case would be unlikely to have standing unless he lived at that house or was more than a casual visitor. State case law dictates that an individual does not have the requisite expectation of privacy in another’s home if that individual is a visiting guest. The defendant here would have to show that he was living at his friend’s house or that he was at the very least an overnight guest to have a chance at meeting the standing prong in a 4 th amendment challenge to the search. So even if the officers in this case violate the 4 th amendment in obtaining the controlled substance, the defendant here will not have standing to challenge the search. He cannot suppress the evidence. The rightful person to suppress the controlled substance would be the defendant’s friend if he was charged. But even a successful challenge by the friend would not prohibit the State from admitting the controlled substance in the defendant’s trial as the 4th amendment right against unreasonable searches is considered a personal right. This right requires a personal injury to warrant the exclusion of the evidence at that defendant’s trial. A more detailed breakdown of the inability to suppress evidence in another person’s trial will be discussed in detail in Part 5 – exclusionary rule.
3. Conclusion
The two preliminary hurdles in a 4 th amendment analysis are often forgotten by defense attorneys as well as prosecutors. While state action has lost its foothold in Texas case law, the standing doctrine is a tricky area that often finds itself as a central issue when challenging the legality of a search by law enforcement. The lynch pin to the standing analysis is to determine if the person is the owner, and then understand that the further removed you are from control over the area the more likely the Court is to find that your expectation of privacy is unreasonable in the eyes of society.
