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Criminal Procedure
Rutgers University, Newark School of Law
Green, Stuart

Criminal Procedure
Fall 2014
v Does D have Standing?
o   “STANDING” Requirement- Before evidence can be excluded, a ct. must determine whether the person seeking the exclusion of evidence has the right to bring a 4th Am. claim.
o   Alderman = May only be excluded by a person whose own rights were violated
§  Ruled person has Standing to contest electronic surveillance, and thus entitled to suppression of unlawfully heard conversations IF:
·         (a) government agents unlawfully overheard that person’s conversations, regardless of where they occurred; OR
·         (b) if the conversations occurred on that person’s premises, whether or not she was present or participated in the conversations.
o   Payner = (NO Standing to bring a 4th Am. violation)
§  Holding: An individual whose documents were inside someone else’s briefcase does NOT have standing to bring a claim for unlawful seizure
§  D’s rights were “not” violated & thus evidence may be admissible against
o   Rakas =  (mere presence is NOT enough for Standing)
§  Held Rights assured by the 4th Am. are personal rights which may be enforced ONLY at the instance of one whose own protection was infringed by the search and seizure, and can NOT be vicariously asserted.
§  Fed Ct. ACCEPTS Katz TEST === Thus, ∆ may seek to exclude evidence derived from a search ONLY if his own “legitimate expectation of privacy” was violated by the search! 
·         It will be a “Totality of the Circumstances” TEST
o   A possessory interest is Relevant, but NOT conclusive.  Whether D was on the premises legitimately is also a factor.
·         Here, Passengers of car had NO Standing to challenge evidence b/c they had NO legitimate expectation of privacy in a vehicle that they did NOT have dominion AND control over.
o   Rawlings =  (further upholds Rakas)(NO reas exp of priv in girl’s purse)
§  HELD: ∆ did NOT have a legitimate expectation of privacy in friend’s purse.
o   Olson = (overnight guest/hotel room)
·         HELD: Overnight guests have a legitimate expectation of privacy in their host’s home.
o   BUT, Carter = Commercial use of residential property (NO Standing)
§  HELD:  ∆ did NOT have a legitimate expectation of privacy to bring a 4th Am. violation & distinguishable from a person permitted on the premises b/c:
·         Purely commercial nature of the transaction engaged in;
·         Relatively short period of time on the premises; AND
·         Lack of any previous connection b/w ∆s & the house-holder
o   PROF SAYS- : Steigald =  To make arrest of person in a 3rd party home Police need a SEARCH WARRANT!
§  BUT, under Carter the D found in friend’s home may NOT be able to establish Standing under Carter.  However, what about Olson
o   Simmons = Pre-Trial Hearing
§  D testimony at pre-trial hearing to establish Standing for 4th Am. challenge may NOT be used against them at trial, UNLESS D makes NO objection!!
v  AUTOMATIC STANDING – NO for FED, But YES for NJ ( == Alston NJ case)
o   Automatic Standing = where an essential element of the crime charged is possession of the seized property at the time of the contested search, you automatically have standing to challenge the legality of the Search under 4th Am.  (from Jones case)
§  Salvucci – ELIMINATES Automatic Standing as a possible option for ∆’s in Federal Cases.
o   Alston (NJ) === NJ has Automatic Standing
§  HELD: Automatic standing as to all 4 ∆s is appropriate as they were charged w/ unlawful possession of firearms obtained by police as a result of challenged search & seizure of car they occupied.
§  NJ RULES: NJ ADDS that person’s ownership OR possessory interest in personal property seized by law enforcement officials is sufficient to confer Standing in 4th Am. claim.
·         (1) Person's ownership of OR possessory, proprietary, or participatory interest in personal property seized or the place searched by police is sufficient to confer Standing to claim that personal 4th Am. privacy rights have been violated.
·         (2) When ∆ is charged w/ an offense in which possession of the seized evidence at the time of the contested search is an essential element of guilt, “automatic standing” rule will apply.  (i.e. Possession Cases!)
à Standing to challenge Traffic Stop!
o   Brendlin = When the police stop a vehicle, both the driver and ANY PASSENGERS have Standing to challenge the constitutionality of the VEHICLE STOP.
§  A person is SEIZED by the police and thus entitled to challenge the government’s action under the 4th Am. when the officer (1) “by means of physical force or show of authority,” (2) terminates OR restrains his freedom of movement, (3) “through means intentionally applied.”
4th Am. Analysis
v Was there a Search or a Seizure?
o   There are two different scenarios in which a 4th Am. search may be deemed to have occurred: (1) where the police infringe on a person’s “reasonable expectation of privacy” in an attempt to find information (KATZ); AND (2) where the police physically intrude on someone’s “person, house, papers [or] eff

erson traveling in an automobile on public thoroughfares has NO reasonable expectation of privacy in his movements from one place to another, and thus has NO 4th Amendment protection from the police using visual monitoring.
·         HELD that A warrant-less “monitoring of a beeper in a private residence, a location not open to visual surveillance, violates the 4th amendment rights of those who have a justifiable interest in the privacy of the residence.”
o   See things as “inside the home” being very sacred.     
·         HERE, INFO obtained by the police in this case disclosed critical facts about the interior of the premises AND which the police would NOT have known otherwise w/o a warrant
o   ASSUMPTION OF RISK = NO Legitimate Expectation of Privacy
à Risk Analysis approach!!!
§  WHITE = HELD: Recording conversations using concealed radio transmitters worn by informants does NOT violate the 4th Am. protection against unreasonable searches & seizures, & thus does NOT require a warrant
·         RULE: A ∆ does NOT have a justifiable & constitutionally protected expectation of privacy that a person w/ whom he is voluntarily conversing will not then or later reveal the conversation to the police.
§  CASES PRIOR toWhite… Discussed in White:
·         Hoffa – False Friends Doctrine: NO reasonable expectation of confidentiality when talking to someone else who turns out to be a government informant.
o   You ASSUME THE RISK that the person you talk to might be a police informant.
·         Lewis – Gov’t can send to D’s home a secret agent who conceals identity, makes a purchase of narcotics, and later testifies against D
·         Lopez  – Gov’t can send to D’s home a secret agent wearing a tape recorder, AND that recording is later used against D
·         On Lee – Gov’t can send to D’s home a secret agent wearing a “simultaneous transmission” device AND use the recording later against D
·         Miller  – NO Reasonable Expectation of Privacy in info provided to a bank.