Requirement of expectation of privacy
You do not have the right to challenge the search and admission of evidence just because a search yielded evidence that the prosecution intends to use against you. Before the court will grant a suppression hearing, a defendant must establish that he or she (and not someone else) had a legitimate expectation of privacy in the place searched or the item seized. This requirement is known as “standing.”
Merely having an ownership interest in the property seized does not confer standing.
Standing presents a delicate problem for a defendant. At trial, your criminal defense attorney will want to distance you from the drugs or gun or other incriminating evidence that the police seized. However, you will not get a suppression hearing unless your attorney alleges sufficient facts to establish standing.
Canny prosecutors will challenge standing with the aim of forcing a defendant to take the witness stand at the suppression hearing and admit that he possessed the incriminating item. While the prosecution cannot use the admissions in its case at trial, the prosecution can bring them up to impeach the defendant if he testifies on his own behalf at trial.
An experienced criminal defense attorney will try to establish standing through witnesses other than the defendant. For example:
- The arresting officer’s testimony that he saw the defendant in possession of the incriminating item or that the defendant stated that he borrowed a car from its rightful owner may be enough to establish standing.
- Other people can be called to testify to the defendant’s interest in the vehicle or premises that was searched. A friend, if not charged as a co-defendant, might be able to testify that the defendant slept several nights in the apartment, thereby establishing standing.
The Fourth Amendment and its state counterparts prohibit only governmental intrusions. Therefore, the fruit of searches conducted by private parties can be used despite the unreasonableness of the intrusion.
However, the search must comply with Fourth Amendment standards when:
- The individuals act as instruments or agents of the government. For example, one court decided that an airport employee who had a history of providing information to the DEA for money and opening packages and searching for drugs acted as government agent.
- The officers join the private search while in progress.
Relinquishing the privacy interest
Actions indicating your intent to relinquish your privacy interest in an item may amount to abandonment or forfeiture of your Fourth Amendment interest in the item and the right to contest its seizure and search. For example:
- Leaving a gym bag in a public hallway.
- Putting the garbage at the curb.
- Throwing drugs to the ground when chased by the police.
However, entrusting a bag or item to another person or setting it down temporarily does not amount to abandonment. For example:
- Giving computer disks to another in a sealed envelope marked “confidential and private” was not abandonment and did not authorize possessor to consent to search of the disk’s contents.
- Giving bag to store clerk and leaving store did not amount to abandonment.
The government bears the burden of proving abandonment.
Disclaiming an interest
The police may testify that when they approached you, you disclaimed any interest in your possessions. Such testimony, if believed, can be fatal to a suppression motion. Your criminal defense attorney should explore exactly what the police said and the circumstances. For example, sometimes the police enter an area (such as a stopped bus) and ask generally to whom a bag belongs. They will take silence as the occupants’ collective denial of any interest in the bag. A skilled defense attorney will ask the police whether they saw the defendant in the area or on the bus at the time; passengers, including the defendant, may have disembarked and not yet reboarded, so they may not have heard the question.
Another tactic that a defense attorney can use is to try to establish that the abandonment resulted from some police illegality. The abandonment then becomes the fruit of the illegal official conduct, and the item would be suppressed. For example, the police detained you without probable cause or reasonable suspicion before the act that might constitute abandonment.
Abandonment issues arise often in so-called “dropsy” cases, in which the police claim to observe a defendant sell or possess drugs or a gun and then throw it to the ground when the police approach. Once the police see the drop and recover the contraband, they have probable cause to arrest the defendant.
In dropsy cases, a suppression hearing can yield ample discovery. Since the suppression issue is whether the police had articulable and reasonable facts justifying their approach to the defendant, the prosecution will need to present its entire case regarding what the police saw the defendant do.
However, the prosecution can avoid any inquiry into what the police observed if the court accepts the argument that the approach was not a stop and that the defendant abandoned any interest in the item, thereby leaving nothing (neither the stop nor the seizure) to suppress.
The experienced criminal defense lawyer will argue that the police seized the defendant when they approached him, and that the seizure caused him to drop the drugs or gun so that the dropping is the suppressible fruit of the illegal seizure.
Some state courts accept that the approach is a seizure. However, the United States Supreme Court says that the approach is not a seizure. Nevertheless, even in federal court, a skilled criminal defense attorney can establish that a seizure occurred with evidence that the police did more than approach and yell, “Stop.” For example: Did they handle the defendant before he slipped away? Did they point or fire their guns at him?