Fiber Evidence" an article in Trial Magazine of August, 1983

Who Will Have Standing to Complain?

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Until recently, under Jones v. United States, any individual charged with a crime of possession automatically had standing to object to a Fourth Amendment violation. This was logical because it appeared contradictory for the government to be allowed to argue on the one hand that the defendant possessed the substance and, as to the accused’s standing, claim he or she had no privacy interest in it.

In Rakas v. Illinois, the U.S. Supreme Court found that the Jones standard created too broad a gauge for measurement of Fourth Amendment rights and that the courts must engage in a conscientious effort to apply the Fourth Amendment by asking not merely whether the defendant had a possessory interest in the items seized, but whether the defendant had an expectation of privacy in the area searched.

In United States v. Salvucci, the court overruled the automatic standing rule in Jones, again holding that defendants charged with crimes of possession may only claim the benefits of the exclusionary rule if their own Fourth Amendment rights have in fact been violated.

Finally, in Rawlings v. Kentucky, the court stated that ownership of goods seized is only one fact to consider, but that alone does not confer standing. The test is whether the person had a legitimate expectation of privacy.

Increasingly stringent standing requirements have further eroded the exclusionary rule. Proving standing is the first thing the defense lawyer must do; standing must be established before the rule can be invoked. Although the Supreme Court established the standard in Rakas, Salvucci, and Rawlings, state courts are not bound by the standing limitation imposed on the federal courts. This will be a continuing problem in the future and will further destroy Fourth Amendment protections under the exclusionary rule.

How does the practitioner establish a client's standing to complain of a Fourth Amendment violation? To demonstrate the requisite "Iegitimate expectation of privacy," often the defendant must testify at a hearing on the defendant's motion to suppress. This often poses a dilemma for defense counsel. Most defendants will resist testifying, which means admitting their interest in the contraband, but failure to do so may result in an inability to claim a Fourth Amendment violation. Moreover, although the defendant's testimony at a suppression hearing cannot be used during the government's case-in-chief, it may be used for impeachment purposes. The testimony might be allowed in collateral state criminal proceedings; the law on this point is not yet well defined. Thus, the standing dilemma will continue to plague the practitioner as it further limits the exclusionary rule.

Electronic Surveillance

The Supreme Court is presently considering a critical question in the area of electronic surveillance: Does the warrantless monitoring of an electronic tracking device (beeper) to aid in locating the manufacture of illegal drugs violate the Fourth Amendment? The Circuit Courts of Appeal and the state appellate courts have been hopelessly divided on this issue, and this term of the high court should clarify the question of whether Fourth Amendment rights attach in the use of such surveillance equipment.

On March 2, 1983, the U.S. Supreme Court held in United States v. Knotts that monitoring of the signal emanating from an electronic tracking device did not invade any legitimate expectation of privacy and thus was neither a "search" nor a "seizure" within the contemplation of the Fourth Amendment. In Knotts, law enforcement officers who had reason to believe that the defendant was purchasing chloroform to be used in the manufacture of illicit drugs arranged with the chloroform seller to place a "beeper" inside the container sold to the defendant. Officers then followed the car in which the chloroform was placed and ultimately traced the chloroform by beeper monitoring alone, to a secluded cabin. They then obtained a search warrant and discovered a clandestine laboratory where the defendants manufactured amphetamines. Unlike many prior "beeper" cases decided by the various Circuit Courts of Appeal, the defendant in Knotts challenged only the monitoring of the beeper, not whether the original installation violated Fourth Amendment protections. Thus, while the Court held that monitoring the beeper signals did not invade any legitimate expectation of privacy, they did not reach the critical issue of the propriety of the installation. Thus, the Circuit Courts of Appeal's decisions remain in conflict in this regard.

Computer Crimes

With the proliferation of computers in our society, and the public’s continued education in that field, one can expect an increase in computer crimes. The computer has been used to aid in the perpetration of complicated financial swindles, embezzlement, and even theft of computer data, but the age of computers has only just begun. In the future, the practitioner may well confront computer-related cases; therefore, a basic understanding of this specialized field will be necessary.

Conclusion

It is obvious that the criminal trial lawyer will face many changes in the months and years ahead. Reshaping the criminal law may prove dramatic and far-reaching. The practitioner must be prepared to face this new era with all of his or her energy and ingenuity.