Standing to Challenge a Search

What is standing to challenge a search?

In simple terms, when you hear that a person has standing to challenge a search, what that means is that the person being searched is legally allowed to contest the unlawfulness of the search. A person has standing to challenge a search only where they have a reasonable expectation of privacy in the thing searched. Where there is no reasonable expectation of privacy in the thing searched, then the person does not have standing to challenge a search.

Let’s consider some examples:

Example of No Standing to Challenge a Search: Let’s say that the police decide they are going to search your friend’s house without a warrant, just on a hunch (i.e. no probable cause, no search warrant= clearly unreasonable under the 4th Amendment) and they find a bag of marijuana in his house with your name on it. The police run fingerprint testing on the bag and it matches up to your fingerprints.

Let’s assume that they then get a warrant for your arrest based on marijuana possession. Unfortunately, you would not have standing to challenge that search because it’s not your house, and you have no expectation of privacy in another individual’s residence. Therefore if you went to trial, the marijuana could be introduced against you as evidence, EVEN if the search was an unlawful and unreasonable search.

Example of Standing to Challenge a Search: Let’s consider that hypothetical situation, but let’s not take a look at the perspective of your friend. Let’s assume that the cops not only found your bag of marijuana but also 500 kilos of heroin hidden in the back of the house. Your friend would HAVE STANDING to challenge THAT search and seizure because it’s HIS HOUSE and he has a REASONABLE EXPECTATION OF PRIVACY in his own house.

Standing to Challenge Search has Expanded: Over the years, Courts have fleshed out more and more of what a reasonable expectation of privacy is. The cases telling you when and how a person has standing to challenge a search are immense. Each case is fact-specific and requires an experienced lawyer to help you pinpoint the relevant law and draw the proper parallel to your case.

Are government actors needed also?

Not really a standing issue, but whether the search or seizure was a “government” action is worth discussing when you talk about standing to challenge a search. That’s because the Standing Requirement and the “Government Action” Element are key gatekeeper components. Without establishing both, you don’t have a valid 4th Amendment violation and thus no evidence will be suppressed. The requirement that the unreasonable search is government action or the product of government action is a fairly straightforward component. Specifically, you can only challenge a search as unreasonable under the 4th Amendment if the search was done by the government or someone acting on the government’s behalf.

For example, if the police search your car and find drugs, the police searching your car satisfies the government action requirement and allows you to go argue that your 4th Amendment Rights were violated.

However, if a burglar searches your car while you are in the store, finds a bunch of drugs, becomes a good Samaritan, and reports you to the police then you don’t have the government action requirement and you cannot challenge the search of your vehicle.

To Summarize: You must have (1) Standing to challenge a search; standing is defined as reasonable expectation of privacy; (2) Government Action is Required, otherwise, you don’t have a 4th Amendment Search and can’t challenge an unreasonable search, no matter how egregious.

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