Whose Fourth Amendment and Does it Matter? A Due Process Approach to Fourth Amendment Standing

45 Pages Posted: 4 Sep 2014

See all articles by Nadia B Soree

Nadia B Soree

Saint Thomas University School of Law

Multiple version iconThere are 2 versions of this paper

Date Written: 2013


Over twenty years ago, the Supreme Court announced its Fourth Amendment standing doctrine, holding that a passenger does not harbor a reasonable expectation of privacy in the automobile she occupies, and therefore, lacks the ability to challenge the admissibility of evidence found in a search of that automobile. The Court, in Rakas v. Illinois, equated “standing” with the substantive definition of a search, derived from Katz v. United States, yet so narrowly construed in the years after Katz, that much of the spirit of that revolutionary decision has been lost. Perhaps a new revolution is underway, as the Court has indicated, in its recent decision in United States v. Jones, its willingness to reexamine Katz and where it has led. This may be an opportune time to address the Court’s current standing doctrine as well. Returning to the context of Rakas, passengers have little to no Fourth Amendment protection. While Brendlin v. California provided passengers with the ability to contest their seizure as occupants of a stopped vehicle, that protection is virtually meaningless when officers can stop, and even arrest, drivers for countless traffic violations, and their subjective motivations for doing so are irrelevant. Further, at least three circuits also apply a heightened nexus approach to exclusion, which requires that passengers who are at first lawfully seized, but then unlawfully detained, demonstrate that the evidence at issue would not have been discovered but for their, and only their, detentions. Being that traffic stops account for the majority of police-citizen contacts, and that statistics show that black drivers are three times more likely than white drivers to be searched pursuant to traffic stops, it is imperative for the Court to reexamine its standing doctrine to prevent targeting of vehicles containing passengers, especially those who are black. This Article traces the evolution of the exclusionary rule from its origins in Weeks v. United States, which demonstrated a due process understanding of exclusion, to its current deterrent-based approach. The Articles urges a return to the due process model of exclusion, arguing that the structure and function of the Fourth Amendment, in the larger criminal procedure context, call for a due process understanding of that Amendment, and that, further, the Fourth Amendment is itself a due process provision. Once exclusion is seen as a personal, due process right, the Article argues that defendants should have standing to seek suppression of evidence derived from an unlawful search when that search was conducted by police with the intent of obtaining information against someone other than or in addition to the one whose direct Fourth Amendment rights were violated.

Suggested Citation

Soree, Nadia B, Whose Fourth Amendment and Does it Matter? A Due Process Approach to Fourth Amendment Standing (2013). Indiana Law Review, Vol. 46, No. 3, 2013, St. Thomas University School of Law (Florida) Research Paper No. 2014-10, Available at SSRN: https://ssrn.com/abstract=2491068

Nadia B Soree (Contact Author)

Saint Thomas University School of Law ( email )

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