StandingYou do not have the right to challenge the search and admission of evidence just because a search yielded evidence that the prosecution intends to use against you. Before the court will grant a suppression hearing, a defendant must establish that he or she (and not someone else) had a legitimate expectation of privacy in the place searched or the item seized. This requirement is known as “standing.” Merely having an ownership interest in the property seized does not confer standing. Standing presents a delicate problem for a defendant. At trial, your criminal defense attorney will want to distance you from the drugs or gun or other incriminating evidence that the police seized. However, you will not get a suppression hearing unless your attorney alleges sufficient facts to establish standing. Canny prosecutors will challenge standing with the aim of forcing a defendant to take the witness stand at the suppression hearing and admit that he possessed the incriminating item. While the prosecution cannot use the admissions in its case at trial, the prosecution can bring them up to impeach the defendant if he testifies on his own behalf at trial. An experienced criminal defense attorney will try to establish standing through witnesses other than the defendant. For example:
- The arresting officer’s testimony that he saw the defendant in possession of the incriminating item or that the defendant stated that he borrowed a car from its rightful owner may be enough to establish standing.
- Other people can be called to testify to the defendant’s interest in the vehicle or premises that was searched. A friend, if not charged as a co-defendant, might be able to testify that the defendant slept several nights in the apartment, thereby establishing standing.
Private searchesThe Fourth Amendment and its state counterparts prohibit only governmental intrusions. Therefore, the fruit of searches conducted by private parties can be used despite the unreasonableness of the intrusion. However, the search must comply with Fourth Amendment standards when:
- The individuals act as instruments or agents of the government. For example, one court decided that an airport employee who had a history of providing information to the DEA for money and opening packages and searching for drugs acted as government agent.
- The officers join the private search while in progress.
Relinquishing the privacy interestActions indicating your intent to relinquish your privacy interest in an item may amount to abandonment or forfeiture of your Fourth Amendment interest in the item and the right to contest its seizure and search. For example:
- Leaving a gym bag in a public hallway.
- Putting the garbage at the curb.
- Throwing drugs to the ground when chased by the police.
- Giving computer disks to another in a sealed envelope marked “confidential and private” was not abandonment and did not authorize possessor to consent to search of the disk’s contents.
- Giving bag to store clerk and leaving store did not amount to abandonment.