Standing:

Defined

Defined:  The right of an individual to contest the illegality of a search and seizure.  Only the person whose rights are being violated has "standing" to challenge an alleged governmental constitutional violation.  (Rakas v. Illinois (1978) 439 U.S. 128, 138-139 [58 L.Ed.2^nd 387, 397-398]; Minnesota v. Carter (1998) 525 U.S. 83 [142 L.Ed.2^nd 373].)

One must have a legitimate possessory interest in the property seized, or a legitimate privacy interest in the area searched, or a personal liberty interest that was infringed.  (See People v. Roybal (1998) 19 Cal.4^th 481.)

Claiming ownership of the property being seized does not establish that the defendant had a reasonable expectation of privacy in that property.  The "possessory interest" must be a "legitimate" one; i.e., excluding contraband and other items not lawfully in the subject's possession.  (See Rawlings v. Kentucky (1980) 448 U.S. 98, 105-106 [65 L.Ed.2^nd 633]; United States v. Pulliam (9^th Cir. 2005) 405 F.3^rd 782, 786.)

Reasonable Expectation of Privacy

Reasonable Expectation of Privacy:  The question really is whether the defendant, as opposed to someone else, had a "reasonable (or ‘legitimate') expectation of privacy" in the place being searched or the items being seized.  The federal cases have gotten away from using the term "standing" while moving towards a discussion of one's "reasonable" or "legitimate expectation of privacy."  Rakas v. Illinois, supra, at p. 143 [58 L.Ed.2^nd at p. 401].)  California courts have been encouraged to do the same.  (See People v. Ayala (2000) 23 Cal.4^th 225, 254, fn. 3; United States v. Davis (9^th Cir. 2003) 332 F.3^rd 1163, 1167; United States v Caymen (9^th Cir. 2005) 404 F.3^rd

1196, 1199-1200.)

"The touchstone of Fourth Amendment analysis is whether a person has a ‘constitutionally protected reasonable expectation of privacy.'"  (California v. Ciraolo (1986) 476 U.S. 207, 211 [90 L.Ed.2^nd 210, 215].)

Test

Test:  Whether or not a person has "standing" to challenge the constitutionality of a search has been described by the United States Supreme Court in Rakas v. Illinois, supra, as follows:  "(W)hether the challenged search and seizure violated the Fourth Amendment rights of a criminal defendant who seeks to exclude the evidence obtained during it" (Id., at p. 140.), "whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect" (Ibid.), or "whether the person who claims the protection of the (Fourth) Amendment has a legitimate expectation of privacy in the invaded place" (Id. at p. 143.).   (People v. Stewart (2003) 113 Cal.App.4^th 242, 249.)

"[S]ubjective expectations of privacy that society is not prepared to recognize as legitimate have no [Fourth Amendment] protection.  (People v. Leon (Aug. 3, 2005) 131 Cal.App.4^th 966, 974.)

"The absence of a right to exclude others from access to a situs is an important factor militating against a legitimate expectation of privacy."  (United States v. Bautista (9^th Cir. 2004) 362 F.3^rd 584, 589; citing Rawlings v. Kentucky (1980) 448 U.S. 98, 105 [65 L.Ed.2^nd 633, 642].)

The existence of a "reasonable expectation of privacy" must be determined by an analysis of the "totality of the circumstances."  (People v. Koury (1989) 214 Cal.App.3^rd 676, 686 In re Rudy F. (2004) 117 Cal.App.4^th 1124, 1132.)

Prior California Rule

Prior California Rule;  "Vicarious Standing:" Everyone charged with a criminal offense resulting from a search or seizure could challenge the constitutionality of that search or seizure, without the necessity of showing "standing."  (E.g., People v. Martin (1955) 45 Cal.2^nd 755, 761.) 

This theory was abrogated by passage of Proposition 8 (Cal. Const., Art. 1, § 28(d)) in June, 1982.  California now follows the federal rules.  (In re Lance W. (1985) 37 Cal.3^rd 873, 886-887; People v. Nelson (1985) 166 Cal.App.3^rd 1209, 1213.)

Rules for Determining Standing:

Burden of Proof

Burden of Proof:  The defendant bears the burden of showing he or she had a reasonable expectation of privacy in the place searched or the thing seized.  (Rakas v. Illinois (1978) 439 U.S. 128, 141, fn. 9 [58 L.Ed.2^nd 387, 399-400]; People v. McPeters (1992) 2 Cal.4^th 1148, 1171; People v. Shepherd (1994) 23 Cal.App.4^th 825, 828; People v. Cowan (1994) 31 Cal.App.4^th 795, 798; United States v. Caymen (9^th Cir. 2005) 404 F.3^rd 1196, 1199-1200.)

However, the court has the discretion to order the prosecution to present its evidence before the defendant proves his standing.  (People v. Contreras (1989) 210 Cal.App.3^rd 450.)

Although the prosecution may not take "contradictory positions in order to defeat an asserted expectation of privacy," the defendant is "not ‘entitled to rely on the government's allegations in the pleadings, or positions the government has taken in the case, to establish standing.'"  (United States v. Long (9^th Cir. 2002) 301 F.3^rd 1095, at p. 1100, citing United States v. Zermeno (9^th Cir. 1995) 66 F.3^rd 1058, 1062.)  

Factors to Consider

Factors to consider:

• Whether the defendant has a property or possessory interest in the thing seized or the place searched;
• Whether he has a right to exclude others from that place;
• Whether he has exhibited a subjective expectation that the place would remain free from governmental invasion;
• Whether he took normal precautions to maintain his privacy;
• Whether he was legitimately on the premises; and
• Whether the defendant was present at the place searched "for a commercial purpose" (no standing) or was there as an "overnight guest" (standing) with the knowledge and permission of an identifiable host.

(People v. Shepherd (1994) 23 Cal.App.4^th 825, 828; United States v. Silva et al. (9^th Cir. 2001) 247 F.3^rd 1051; People v. Stewart (2003) 113 Cal.App.4^th 242, 250; In re Rudy F. (2004) 117 Cal.App.4^th 1124, 1132.)

On Appeal

On Appeal:  Whether or not an individual's expectation of privacy was objectively reasonable is reviewed by an appellate court "de novo."  (United States v. Bautista (9^th Cir. 2004) 362 F.3^rd 584, 588-589.)

Standing; Examples:

Vehicles

Vehicles: 

The owner, or a borrower of vehicle with the owner's permission (i.e., a person in lawful possession), has standing to challenge the search of the vehicle.  (People v. Leonard (1987) 197 Cal.App.3^rd 235, 238; People v. Nelson (1985) 166 Cal.App.3^rd 1209; United States v. Kovac (9^th Cir. 1986) 795 F.2^nd 1509, 1510-1511, owner; United States v. Portillo (9^th Cir. 1980) 633 F.2^nd 1313, 1317, borrower.)

A passenger in a vehicle that he neither owns nor leases lacks standing to object to a search of areas within the vehicle, such as the glove compartment, the trunk, or underneath the seat.  (Rakas v. Illinois (1978) 439 U.S. 128 [58 L.Ed.2^nd 387]; United States v. Portillo (9^th Cir. 1980) 633 F.2nd 1313, 1317; United States v Pulliam (9^th Cir. 2005) 405 F.3^rd 782, 785-786.)

But, the passenger as well as the driver has standing to object to the basis for a vehicle's initial stop or detention.  (Brendlin v. California (2007) __ U.S. __ [127 S.Ct. 2400; 168 L.Ed.2^nd 132].); see also  People v. Lionberger (1986) 185 Cal.App.3^rd Supp. 1; United States v. Twilley (9^th Cir. 2000) 222 F.3^rd 1092, 1095; United States v. Colin (9^th Cir. 2002) 314 F.3^rd 439, 442-443; People v. Lamont (2004) 125 Cal.App.4^th 404.)

One who steals a car (People v. Shepherd, supra.) or who is simply an occupant of a stolen car (People v. Catuto (1990) 217 Cal.App.3^rd 714; People v. Melnyk (1992) 4 Cal.App.4^th 1532, 1533.), or is caught driving a stolen vehicle (People v. Carter (2005) 36 Cal.4^th 1114, 1139-1142.) that is later searched, has no standing to challenge the later search of that car.

Defendant had no standing to challenge the illegal search of another person's vehicle which resulted in recovery of information used to obtain a search warrant for defendant's home.  (People v. Madrid (1992) 7 Cal.App.4^th 1888, 1896.)

A person driving a rental vehicle, when the person is neither an authorized driver under the rental contract nor driving the vehicle with the renter's permission, does not have standing to challenge the search of a vehicle.  (United States v. Thomas (9^th Cir. 2006) 447 F.3^rd 1191; noting that merely being an unauthorized driver, per the terms of the rental agreement, will not deprive a person of standing.  In this case, it was the defendant's failure to present any evidence that he was driving the car with the permission of the person who rented it that deprived him of standing to contest the search of the car.)

The United States Supreme Court has recently reversed the California Supreme Court on the issue of whether the passenger is detained by virtue of being in the car when it is initially stopped, and held that at least in a private motor vehicle (as opposed to a taxi, bus, or other common carrier), the passenger in a vehicle stopped for a possible traffic infraction is in fact detained, giving him the right (i.e., standing) to challenge the legality of the traffic stop.  (Brendlin v. California (2007) __ U.S. __ [127 S.Ct. 2400; 168 L.Ed.2^nd 132].)

Visitors

Visitors: 

An overnight guest in a residence does have standing to contest an unlawful search.   (Minnesota v. Olson (1990) 495 U.S. 91 [109 L.Ed.2^nd 85]; People v. Hamilton (1985) 168 Cal.App.3^rd 1058.)

As an "occasional" guest at his girlfriend's apartment, defendant had standing to challenge the entry of his girlfriend's bedroom where the two of them stayed together, along with the search of his gym bag he kept under the bed.  (United States v. Davis (9^th Cir. 2003) 332 F.3^rd 1163, 1167-1168.)

The estranged husband, when he regularly visited overnight with his children, had a key and unrestricted access, kept personal papers and clothing in a bedroom, and was present at the time of the search, has standing.  (People v. Koury (1989) 214 Cal.App.3^rd 676, 688.)

A Babysitter during the time he or she is engaged in babysitting activities has standing.  (People v. Moreno (1992) 2 Cal.App.4^th 577, 579, 587.)

Simple, casual visitors in a place being searched do not normally have standing.  (People v. Nelson (1985) 166 Cal.App.3^rd 1209; People v. Ooley (1985) 169 Cal.App.3^rd 197; People v. Cowan (1995) 31 Cal.App.4^th 795, 798, 800; People v. Dimitrox (1995) 33 Cal.App.4^th 18.)

The temporary occupant of a house does not have standing to challenge the search of a bedroom he did not occupy, never entered, and had no permission to enter.  (People v. Hernandez (1988) 199 Cal.App.3^rd 1182, 1188.)

But see People v. Stewart (2003) 113 Cal.App.4^th 242:  A person who does not stay overnight, but who has a key and free reign of the house, coming and going as he pleases, doing his laundry, cooking, and watching the T.V. in the house, and taking showers, etc., was held to have standing. 

An overnight guest in a residence does have standing to contest an unlawful search (Minnesota v. Olson (1990) 495 U.S. 91 [109 L.Ed.2^nd 85].), even if the guest is a drug smuggler.  (United States v. Gamez-Orduno (9^th Cir. 2000) 235 F.3^rd 453.)

However, a visitor who is there for a limited time (e.g., 2½ hours), for an unlawful purpose (e.g., to package contraband), without any prior relationship with the lawful occupant, does not have standing.  (Minnesota v. Carter (1998) 525 U.S. 83 [142 L.Ed.2^nd 373].)

Personal Property

Personal Property: 

No expectation of privacy in a gun given to another person (People v. McPeters (1992) 2 Cal.4^th 1148, 1171.), or an opaque bag left, unsealed, in another person's car (People v. Root (1985) 172 Cal.App.3^rd 774, 778.), or a purse left in another's vehicle.  (People v Shepherd (1994) 23 Cal.App.4^th 825, 827, 829.)

There is no expectation of privacy in a stolen computer (United States v. Wong (9^th Cir. 2003) 334 F.3^rd 831) or one that was obtained by fraud.  (United States v. Caymen (9^th Cir. 2005) 404 F.3^rd 1196, 1200.)

There is no expectation of privacy in a duffle bag left in an apartment laundry room open to anyone, even though placed out of the way on a high shelf.  (United States v. Fay (9^th Cir. 2005) 410 F.3^rd 589.)

But the owner of a gym bag the defendant kept under his girlfriend's bed in her apartment had standing to challenge the search of that gym bag.  (United States v. Davis (9^th Cir. 2003) 332 F.3^rd 1163, 1167-1168.)

Defendant had standing to challenge a wiretap order on his cellular telephone purchased by the defendant while using a fictitious name in that there is nothing illegal in the attempt to remain anonymous.  (People v. Leon (2005) 131 Cal.App.4^th 966, 974-977.)

A business that owns the company's computers may consent to the search of a computer used by an employee, at least when the employee is on notice that he has no reasonable expectation of privacy in the contents of the computer he is using.  (United States v. Ziegler (9^th Cir. 2006) 456 F.3^rd 1138.)

Leaving a cell phone at the scene of a crime negates the suspect's expectation of privacy in the contents of that phone, and is therefore abandoned property despite the suspect's subjective wish to retrieve it, which he fails to act on.  "Abandonment . . . is not meant in the strict property-right sense, but rests instead on whether the person so relinquished his interest in the property that he no longer retained a reasonable expectation of privacy in it at the time of the search."  (People v. Daggs (2005) 133 Cal.App.4^th 361.)

Denying possession or ownership in a briefcase found in a vehicle defendant was driving will deprive that defendant of the right to later challenge the legality of the warrantless search of that briefcase.  (United States v. Decoud (2006) 456 F.3^rd 996.)

Outside Common Areas

Outside Common Areas:  Defendant, observed by police officers retrieving contraband from a hole in the ground in the common area behind an apartment complex, did not have any reasonable expectation of privacy in that hole.  (People v. Shaw (2002) 97 Cal.App.4^th

833.)

Businesses

Businesses: 

"In the employment context, we have found a reasonable expectation of privacy to exist in an area ‘given over to [an employee's] exclusive use.' (Schowengerdt v. General Dynamics (9^th Cir. 1987) 823 F.2^nd 1328, 1335.) O'Brien's office was given over to O'Brien's exclusive use and contained his personal desk and files; . . ."  (United States v. Taketa (9^th Cir. 1991) 923 F.2^nd 665, 671.)

However, the employee of a liquor store had no standing to challenge the search of the counter area where she had no expectation of privacy.  (People v. Thompson (1988) 205 Cal.App.3^rd 1503.)

No expectation of privacy in documents seized from another's business premises where the defendant had no control over the business and no possessory interest in the documents at the time of seizure.  (People v. Workman (1989) 209 Cal.App.3^rd 687, 696.)

No standing to challenge the search of containers left by defendant at an auto body shop where defendant was a "mere guest or invitee."  (People v. Ayala (2000) 23 Cal.4^th 225, 253.)

A hospital employee has no reasonable expectation of privacy in the hospital's mailroom.  (United States v. Gonzalez (9^th Cir. 2003) 328 F.3^rd 543.)

A business that owns the company's computers may consent to the search of a computer used by an employee, at least when the employee is on notice that he has no reasonable expectation of privacy in the contents of the computer he is using.  (United States v. Ziegler (9^th Cir. 2006) 456 F.3^rd 1138.)

Renters with a Stolen Credit Card

Renters with a Stolen Credit Card:  One who rents a hotel room with a stolen credit card does not have standing to challenge an unlawful entry of the room by law enforcement.  (People v. Satz (1998) 61 Cal.App.4^th 322.)

But see United States v. Bautista (9^th Cir. 2004) 362 F.3^rd 584, where the Ninth Circuit Court of Appeal held that despite renting a motel room with a stolen credit card, the defendant did not lose his standing to challenge an unlawful entry until the motel's manager took some affirmative steps to repossess the room. 

Another panel of the Ninth Circuit Court of Appeal reached the opposite result under similar circumstances, finding that a  person does not have standing in a hotel room rented with a fraudulent credit card and other fraudulent documents.  (United States v. Cunag (9^th Cir. 2004) 386 F.3^rd 888.)  This case may perhaps be differentiated from Bautista because in the later, the hotel manager was still trying to work out some method of payment.

Exposure to Public View

Exposure to Public View:  Observation of defendant's growing marijuana plants from a neighbor's property, without the neighbor's knowledge or permission, looking into defendant's adjacent back yard held to be lawful.  Defendant did not have standing to challenge the trespass into the neighbor's yard, and did not have a reasonable expectation of privacy in what was growing in his own yard in that his marijuana plants were plainly visible.  (People v. Claeys (2002) 97 Cal.App.4^th 55.)

Disclaiming Standing

Disclaiming Standing:  Generally, anyone who disclaims ownership of the place or item being searched will not normally be held to have standing.  (People v. Mendoza (1986) 176 Cal.App.3^rd 1127; and People v. Dasilva (1989) 207 Cal.App.3^rd 43; People v. Scott (1993) 17 Cal.App.4^th 405.)

But note People v. Allen (1993) 17 Cal.App.3^rd 1214; disclaimer but one factor to consider when determining whether defendant had standing.

And see United States v. Stephens (9^th Cir. 2000) 206 F.3^rd 914, where the Ninth Circuit Court of Appeal has held that even denial of standing (i.e.; "That ain't mine.") concerning seized property during an illegal detention will not keep that property from being suppressed as the product of the unlawful detention.

Also, denial by a defendant that he possessed a gun, allegedly recovered by police from his waistband, does not defeat the defendant's claim of standing when he later challenges the search of his person.  (People v. Dachino (2003) 111 Cal.App.4^th 1429.)