This article originally appeared at 28 Cardozo L. Rev. 1668 (2007)
49 Pages Posted: 29 May 2013 Last revised: 12 Oct 2017
Date Written: 2007
Standing Room Only: Why Fourth Amendment Exclusion and Standing Can No Longer Logically Coexist argues that the Fourth Amendment standing doctrine is fundamentally incompatible with the existing Fourth Amendment exclusionary rule. Fourth Amendment standing provides that only a person who has suffered an invasion of her own normatively reasonable expectations of privacy, given the facts about her situation that police may not even know (including whether she owns the property searched), may suppress evidence that police turned up through a violation of the Fourth Amendment. Meanwhile, the existing exclusionary rule doctrine maintains that the sole objective of Fourth Amendment suppression is to motivate police officers, given facts available to them (such as whether they have probable cause), to conform their conduct to the law prohibiting unreasonable searches and seizures. This Article proposes that by taking into account the actual facts about the defendant’s situation in assessing her standing to bring a suppression motion, it is arbitrary to consider the fact that she did (or did not) have an ownership right in the property where the search occurred, while simultaneously ignoring the fact that she was engaged in criminal activity within that property. This Article accordingly concludes that the ex ante perspective involved in determining whether the police have misbehaved (and thus need to be deterred through exclusion), is logically at odds with the ex post perspective involved in assessing whether the person seeking suppression was in fact entitled to remain free of the search that uncovered evidence against her. The Article takes a close look at the case of Minnesota v. Carter as a perfect illustration of this doctrinal incoherence.
Keywords: Fourth Amendment, privacy, probable cause, supreme court, entitlement, criminal law, evidence, supression remedy, exclusion
Suggested Citation: Suggested Citation
Colb, Sherry F., Standing Room Only: Why Fourth Amendment Exclusion and Standing Can No Longer Logically Coexist (2007). This article originally appeared at 28 Cardozo L. Rev. 1668 (2007) . Available at SSRN: https://ssrn.com/abstract=2271274