Proving a Personal Expectation

The personal-rights rule tells a defendant what must be shown but leaves open how to show it. A defendant who moves to suppress must establish that the challenged search or seizure invaded the defendant's own reasonable expectation of privacy, and the court asks whether the police intruded on this defendant's justified expectation, which is a narrower question than whether they intruded on anyone's.¹ The answer comes from the facts that connect the defendant to the place, person, or item involved. This section follows three recurring connections: a defendant who claims something located in another person's custody, a guest who sleeps in another person's home, and a passenger riding in a car the police have stopped.

These situations share a reason for their shape. Because the expectation must be one that society is prepared to recognize, no single fact such as who holds title can supply the answer, and courts instead ask how the defendant is tied to the thing searched. Ownership, control, the character of the place, and the defendant's relationship to it are different ways of testing whether a reasonable person in the defendant's position would expect to be left alone. Property concepts feed into that judgment because the power to keep others out is a strong sign of privacy, yet they do not settle it, since a person can hold a real expectation of privacy without title and can hold title without any expectation of privacy at all. Each case below shows a different set of facts carrying the answer, beginning with the situation that tests every fact at once.

Totality of the Circumstances

Whether a defendant may challenge a search depends on the totality of the circumstances bearing on the defendant's own expectation of privacy, and no single fact settles it.² The reason is that the underlying question is one of reasonableness, and reasonableness is a judgment about a whole situation. The cases weigh facts such as these:

whether the defendant owns or holds a possessory interest in the place or item searched;
whether the defendant controls access to it and can keep others out;
what precautions the defendant took to keep it private;
the nature of the place, with the home at the top of the scale of protection; and
the defendant's relationship to the place and to the person who holds it, including how long that relationship has lasted.

The facts of Rawlings v. Kentucky, which the previous section used to show that ownership alone does not control, show how the factors operate together. Police found drugs in a companion's purse, and the defendant claimed the drugs as his own. He had known the purse's owner for only a few days, he had no right to keep others out of her purse, and he had put the drugs into it shortly before the police arrived, which showed no precaution aimed at keeping them private. The Court concluded that he lacked a legitimate expectation of privacy in the purse, so he could not challenge its search even though the drugs belonged to him.

Ownership counts, but it does its work by reinforcing control. Where the defendant can exclude others from the place and has taken steps to keep it private, ownership of the contents strengthens the claim. Where those facts are missing, ownership of the contents leaves the claim without support, because the Amendment protects the defendant's expectation about a place and not the defendant's title to what the place happens to hold.

Students lose this issue when they treat ownership of the seized item as proof of a personal expectation. On an exam stem, ask what else connects the defendant to the place searched, and then ask whether the defendant could keep others out, whether any precaution was taken, and how long the relationship with the place or its holder has lasted.

Overnight Guests

An overnight guest in another person's home generally has a reasonable expectation of privacy in that home and may challenge a search or entry affecting it.⁴ In Minnesota v. Olson police suspected the defendant of driving the getaway car in a killing, went to the home of friends where he had been staying, and entered without a warrant or consent to arrest him. The defendant did not own the house, hold a lease, or claim any legal power to exclude others, and the Court nonetheless held that his status as an overnight guest was enough to give him an expectation of privacy that society recognizes as reasonable.

The reason lies in how people actually live. Staying overnight with a friend is a widely shared social custom, and a person who sleeps in someone else's home is at the most vulnerable point of the day. A guest expects the host to admit the people the guest wants to see and to keep out the rest, so the guest relies on the host's invitation for the seclusion the Amendment protects. The expectation therefore rests on a common understanding about how hospitality works, and a guest holds it without title, without a key, and without any legal right to exclude anyone.

This rule fits the Rakas decision, and the contrast between the two shows what the inquiry really measures. Both the overnight guest and the Rakas passengers were non-owners claiming protection in a space controlled by someone else, and they differ in the character of their connection to that space. An overnight stay is a recognized form of seclusion, while riding along in a friend's car, without more, gave the passengers no comparable expectation in the glove compartment or under the seat.⁵ The same logic marks the rule's edge, because it attaches to the stay and not to mere presence in the home.

On an exam stem, look for the words that mark the length and purpose of the stay, such as an invitation to sleep over, a bag left behind, or a change of clothes. A defendant who was merely present in the home has not shown the connection this rule requires.

Passengers and Traffic Stops

A traffic stop seizes every occupant of the car, so a passenger may challenge the stop. The rule comes from the reasonable-person test for seizures covered earlier in this chapter: when officers stop a car, a reasonable passenger would not feel free to leave or to end the encounter without police permission. In Brendlin v. California officers stopped a car in which the defendant was a passenger, learned that he was wanted for a parole violation, arrested him, and found drug-manufacturing materials. He argued that the stop itself was unlawful. The state courts treated him as unseized because the stop was aimed at the driver, and the Supreme Court held that he was seized and could contest the stop.

Two reasons support the result. A seized passenger is a victim of the seizure in the sense the personal-rights rule demands, because what the stop invaded is the passenger's own freedom of movement, so the objection to vicarious assertion in Rakas does not arise.⁷ The second reason concerns incentives. If only the driver could contest a stop, an officer with no basis for pulling over a car could do so whenever a passenger was the real target. The driver, facing no charge, would have little reason to object, and the person who bore the consequences would have no complaint to make.

The passenger's win is narrower than it first looks. What the passenger gains is a challenge to the stop, which is a challenge to the seizure of the passenger's own person, and the benefit is suppression of evidence that officers obtained by exploiting an unjustified stop. A challenge to the search of the car is a different claim, and it falls under Rakas: the passenger must show an expectation of privacy of his own in the area searched or the item found.⁸ Being seized does not supply that expectation, because a person can be detained in a car without holding any protected interest in its glove compartment.

Exam Analysis Steps

Because one traffic stop can give rise to two different claims, it is best to run them separately. The steps are these:

Ask whether the passenger is challenging the stop itself or a search that took place during the stop.
If the challenge is to the stop, treat the passenger as seized from the moment the car was stopped and ask whether officers had at least reasonable suspicion of a violation to justify it.
If the stop was unjustified, identify which evidence officers obtained by exploiting it, since that evidence may be suppressed.
If the challenge is to a search of the car, ask whether the passenger holds an expectation of privacy of his own in the place or item searched, such as a bag he owns and keeps close.
Decide the two claims independently, so that success on the stop does not carry over to the search.

Students lose this issue when they let the passenger's seizure stand in for a right to contest the search of the car. On an exam stem, check what the passenger is actually asking to suppress and what ties the passenger to the place searched.

Totality of the Circumstances

The personal-rights rule requires a defendant to show an expectation of privacy that belongs to that defendant, and Rawlings v. Kentucky supplies the method: a court weighs all the circumstances that connect the defendant to the place or item searched, and no single fact settles the matter.¹⁰ The burden rests on the defendant, who must prove both that the search was illegal and that the defendant held a legitimate expectation of privacy in what was searched.¹¹ The Court also explained how this inquiry relates to the older vocabulary of standing. After Rakas v. Illinois, the separate standing question and the question whether the search invaded a protected interest merged into one, which asks whether officials violated a legitimate expectation of privacy held by this defendant.¹² A multi-factor approach follows from that merger, because the underlying question is one of reasonableness, and reasonableness is a judgment about a whole situation in which title is only one part.

The considerations that recur in Rawlings and the cases around it are these.¹³

whether the defendant owns the item or holds a possessory interest in the place searched;
whether the defendant has had access to the place or container and can exclude other people from it;
how long and how closely the defendant has been connected to whoever holds the place or container;
whether the defendant took normal precautions to keep the item private;
the nature and location of the property searched; and
what the defendant's own statements and conduct show about whether any expectation of privacy existed.

These considerations answer different questions about a single expectation. Ownership shows a tie to the thing, access and the power to exclude show whether the defendant could keep others away, precautions show whether the defendant behaved like someone who expected privacy, and the defendant's own admissions show whether the expectation existed at all. Because each probes a separate part of the claim, a court can find strength in one and weakness in another, which is why the approach has no bright line.

In Rawlings, police who had come to a house with an arrest warrant for another man searched the handbag of Vanessa Cox, a visitor seated beside the defendant on a couch.¹⁴ The defendant claimed as his own the drugs found in that handbag, and the Court still found no legitimate expectation of privacy in it. The record answered the question factor by factor. The defendant had known Cox for only a few days and had never sought or received access to her purse before he put his drugs in it, and he had no right to exclude others from it, since another acquaintance of Cox had free access and had rummaged through it for a hairbrush that same morning.¹⁵ The suddenness of the transfer did not suggest that he took normal precautions to keep the drugs private, and he admitted that he had no expectation the purse would stay free from governmental intrusion, an admission that both lower courts credited.¹⁶

Ownership of the drugs did not carry the claim. The Court acknowledged that ownership was one fact to consider, and it added that Rakas had rejected the idea that technical property concepts decide who may invoke the Amendment.¹⁷ Its illustration shows the logic: a defendant who leaves drugs in plain view still owns them but cannot claim a legitimate expectation of privacy in them.¹⁸ Title says little about whether the owner kept the thing private. A person who drops an item into a container that someone else controls has given up the very control that would let the person keep others away, so the owner retains a tie to the item but holds no expectation in the container that society would honor.

The defendant's property interest in an item still has a use, though a narrower one than ownership might suggest. Officers who see an item in plain view usually just seize it, so the owner's interest matters chiefly as evidence of a privacy expectation in the premises entered or the container opened.¹⁹ For the same reason, a defendant charged with possessing the item gets no automatic right to contest the search, because the defendant can now assert an interest in the item at a suppression hearing without that testimony being used against the defendant at trial.

The same considerations surface wherever a defendant's connection to a place is in doubt. In California v. Ciraolo, discussed earlier in this chapter, the Court treated a ten-foot fence around a yard as a normal precaution to maintain privacy, borrowing that phrase from Rawlings.²⁰ In challenges to searches of business premises, one federal court of appeals asks about the employee's relationship to the item seized, whether the item was in the employee's immediate control, and whether the employee acted to keep it private, which maps closely onto the Rawlings considerations.²¹ In Minnesota v. Carter, the defendants had been in an apartment only briefly, for a commercial purpose, with no prior connection to the householder, and so could not challenge an officer's peek through a window blind.

Exam Analysis Steps

Because the test weighs several facts together, running the same sequence every time keeps an examinee from stopping at ownership. The steps are these:

Identify exactly what the defendant is challenging, whether a place, a container, or an item, since the expectation must attach to that thing.
Ask what ties this defendant to it besides owning the contraband, such as possession of the place or container and the length of the defendant's relationship with whoever holds it.
Ask whether the defendant could keep others out, looking at prior access and any right to exclude.
Ask whether the defendant took normal precautions to keep the item private and whether the defendant said or did anything showing no expectation of privacy.
Weigh these facts together, so that ownership alone fails and several reinforcing facts allow the claim to proceed to the merits.

Students lose this issue when they treat owning the contraband as proof of an expectation of privacy in whatever holds it. On an exam stem, look for the moment the defendant gave up control of the item, such as a hurried hand-off to a recent acquaintance, because that fact separates the Rawlings defendant from one who keeps the item in a container the defendant controls.

Overnight Guests

The personal-rights rule asks what ties this defendant to the place searched, and the clearest tie the Court has recognized for someone who neither owns nor leases the premises is an overnight stay. Minnesota v. Olson holds that an overnight guest in another's home generally has a reasonable expectation of privacy in that home and may challenge a search or entry of it.²³ Olson was suspected of driving the getaway car after a gas-station robbery and killing in Minneapolis, and he had been staying in the upper unit of a duplex. Officers surrounded the building, entered the upper unit without permission or a warrant and with weapons drawn, and found him hiding in a closet.²⁴ The challenge was to a warrantless arrest inside a home. The rule against such arrests exists to protect the home from entry without a magistrate's finding of probable cause, so the question was whether Olson had enough of a connection to that home to claim the protection.²⁵

The Court answered through the ordinary privacy framework. A person may invoke the Amendment only if the person has a legitimate expectation of privacy in the invaded place, and an expectation is legitimate when society is prepared to recognize it as reasonable.²⁶ The State urged a twelve-factor test for deciding when a dwelling counts as the defendant's home. The Court rejected it as needlessly complex and as resting on the mistaken premise that a place must be one's home before a legitimate expectation can exist there.²⁷ It went no further than to hold that Olson's status as an overnight guest was alone enough. That makes the rule a status rule: the defendant need not prove a key, rent, or a drawer of clothes, because the stay itself supplies the connection.²⁸ The result tracks an earlier case, Jones v. United States, where a defendant arrested in a friend's apartment had been given the use of it and a key, kept a suit and shirt there, and had slept there perhaps a night while the friend was away.²⁹

A guest cannot exclude the host, so the reason the expectation counts as reasonable has to lie elsewhere, in shared understanding. The host keeps ultimate control of the house and may admit or turn away whomever the host likes, yet guests know that hosts will more likely than not respect their privacy, and the law honors that common understanding.³⁰ A person who sleeps in a house relies on its walls and doors to keep intruders out at the moment of greatest exposure, and the social practice of hospitality would mean little if a sleeping guest forfeited that shelter by owning nothing. Justice Jackson made the same observation in a 1948 concurrence, noting that even a guest may expect the shelter of the roof he is under against criminal intrusion.³¹ Property law influences these shared expectations without fixing their limits, and the sense that a home is one's own extends beyond formal property rights.³²

The passengers in Rakas v. Illinois stand on the other side of the line. They rode in a friend's car and had no ownership or possessory interest in the glove compartment or the area under the seat where the evidence was found, so they could not challenge the search.³³ Two facts separate them from Olson, and they work together. The first is the place: expectations of privacy are much lower in a car than in a home.³⁴ The second is the connection: Olson was lodged in the home overnight, while the passengers were simply riding along. The Rakas dissent argued that a person riding beside a friend who owns the car must have some protection, but that view did not carry the day.³⁵

The rule attaches to the stay and not to mere presence in a home. In Minnesota v. Carter an officer looked through a gap in a closed blind and saw the defendants bagging cocaine in another person's apartment. The defendants had been there only a few hours, for a purely commercial purpose, with no earlier connection to the householder, and the Court held that they had no expectation of privacy they could assert.³⁶ Each of those facts weakens the sense of being sheltered as a guest. A short business transaction with someone the defendant had just met resembles a transaction more than it resembles a stay in a home, and the social expectation that supports Olson does not reach it.

A defendant must also prove the stay. In a federal prosecution in the Third Circuit, Rose was arrested inside another person's apartment after officers entered, and he claimed to be an overnight guest. He offered no evidence of it at the suppression hearing, and the district court treated him as a short-term social guest who could not challenge the search.³⁷ The standard he had to meet required a subjective expectation of privacy in the apartment that was also objectively reasonable.³⁸ Proving the stay carries little risk, because a defendant may assert an interest at a suppression hearing without that testimony being used against the defendant at trial.

Exam Analysis Steps

Because the rule turns on the character of the defendant's stay and not on title, a stem that involves a visitor is best run in the same order every time. The steps are these:

Identify the home the defendant is challenging and whether the defendant owns or leases it, since an owner or lessee needs no further connection.
If the defendant is a visitor, look for facts showing an overnight stay, such as an invitation to sleep over, luggage left behind, or a change of clothes.
If the visit was short, commercial, or between strangers, treat it like the visit in Carter and conclude that the defendant holds no expectation of privacy in the home.
Confirm that the defendant actually presented evidence of the stay at the suppression hearing, since the burden of showing the expectation rests on the defendant.

Students lose this issue when they treat being present in the home as enough, or when they assume that a guest must hold a key or pay rent. The two limits in the stem are the length and purpose of the stay, so a defendant who was merely visiting has not shown the connection this rule requires.

Passengers and Traffic Stops

The personal-rights requirement has so far been applied to searches, where the question is what connects the defendant to the place or container the officers opened. A traffic stop gives a passenger a second thing to challenge, the encounter itself, and the answer to whether this defendant may object can differ between the two. Each challenge asks whether the government invaded the defendant's own protected interest, since Fourth Amendment rights are personal and cannot be asserted on someone else's behalf.⁴⁰ What changes from one challenge to the other is the interest at stake. A passenger's freedom to move is one interest, and his privacy in a friend's glove compartment is another.

In Brendlin v. California, officers pulled over a Buick to check whether its temporary operating permit matched the car, even though the deputy later admitted that nothing about the permit looked unusual.⁴¹ The deputy asked the driver for her license, noticed Bruce Brendlin in the front passenger seat, and learned that Brendlin was a parole violator with an outstanding no-bail warrant. Brendlin was ordered out at gunpoint and arrested, a search of his person turned up a syringe cap, and a search of the car turned up items used to make methamphetamine.⁴² The question was whether a passenger is seized when police stop the car he is riding in. The Court held that he is, so a passenger may challenge the constitutionality of the stop.⁴³

The reasoning starts with what counts as a seizure. An officer seizes a person by physical force or a show of authority that restrains the person's freedom of movement through means intentionally applied, and the restraint need not be aimed at the person who complains, because an unintended person may be the object of a detention so long as the detention is willful rather than the product of an unknowing act.⁴⁴ The deputy stopped the Buick deliberately, and halting a car halts everyone inside it, so the passenger fell within the show of authority even though the deputy chose the car before noticing who was riding in it. Because the car actually pulled over with its occupants aboard, the submission that a show of authority requires was also present.⁴⁵

The next link is how to tell when an occupant who simply stays put has been seized. The general test asks whether a reasonable person would have believed he was not free to leave. When a person has no wish to leave for reasons unrelated to the police, as with a passenger partway through a trip, the better measure from Florida v. Bostick is whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter.⁴⁶ A reasonable passenger in a stopped car would not feel free to leave without police permission, and that is the answer Brendlin reached.⁴⁷ The Court had said many times before that stopping a car and detaining its occupants is a seizure, and Brendlin was the first decision to answer the question squarely for passengers.⁴⁸

The seizure fell on Brendlin's own person, so he needed no separate showing of privacy in the car to have a personal stake. His liberty was what the officers restrained. That is why the stop opens a route that a car search does not. If a stop is unlawful, what officers find through it is derivative of the violation, and Brendlin moved to suppress what the searches of his person and the car produced as fruits of an unconstitutional seizure.⁴⁹ The holding decides who may contest the stop and says nothing about whether this stop was lawful. A contrary rule would leave only drivers able to contest stops, and an officer who wanted a passenger's contraband could stop a car on no good basis without risking suppression as to that passenger.

The contrast comes from Rakas v. Illinois. The passengers there, riding in a friend's car, did not challenge the stop and did not complain about being made to get out. They asserted only that their privacy was violated when officers searched the car's interior and found a sawed-off rifle under the front seat and shells in the locked glove compartment.⁵⁰ The Court held that they could not make that challenge, because they had no ownership or possessory interest in the places searched, and being harmed by evidence found in another's property confers no right to object.⁵¹ Being present in the car as a passenger supplied no expectation of privacy in the glove compartment or under the seat.

The two cases do not conflict, because they answer different questions. Rakas resolved only the car search, since the petitioners left the stop unchallenged, and Brendlin supplied the answer for the stop nearly three decades later. The difference in outcome follows the difference in the interest. The stop restrains the passenger's own person, while the car's interior holds property that belongs to someone else. The Court also reasons that exclusion is justified only by its deterrent effect, and that letting people whose own rights were violated seek suppression already deters officers enough. Extending suppression to people with no personal stake would add little deterrence at a real cost to the trial's search for truth.⁵²

Hypothetical Illustration

Officers stop a sedan for no reason a court would accept. The driver owns the car, and Marcus rides in the front seat with a backpack on his lap. Officers order both out, open the glove compartment, and find a pistol. Marcus moves to suppress the pistol. He may argue that the stop was unlawful, because the stop seized him along with the driver, and if that argument succeeds the pistol, found because of the stop, may be suppressed as its fruit. He may not contest the glove-compartment search as such, because he has no ownership or possessory interest in it. Change what the officers open: they unzip the backpack and find the pistol inside. The search now intrudes on Marcus's own effects, so he may challenge it directly, whatever happens to his argument about the stop.

The backpack twist follows from the way personal rights are defined. They are violated when the harm falls on the defendant personally, or on a place or thing, such as a car or a backpack, in which the defendant has a reasonable expectation of privacy.⁵³ A driver who is not the owner can sit near the possessory end of that range. Under Byrd v. United States, someone in lawful possession and control of a rental car generally has a reasonable expectation of privacy in it, even if the rental agreement does not list that person as an authorized driver.⁵⁴

Exam Analysis Steps

Because the outcome depends on what the passenger is attacking, a vehicle-stop stem is best run by sorting the challenges first. The steps are these:

Identify each thing the defendant is challenging, separating the stop itself from any search of the car, its contents, or the defendant's own person and belongings.
If the challenge is to the stop, confirm that the defendant was an occupant when the car was stopped, and treat the defendant as seized and entitled to contest the stop whether he was the driver or a passenger.
If the challenge is to a search of the car or something in it, ask what ties this defendant to the place or item searched, such as ownership, possession, or control, and conclude that mere presence as a passenger does not supply it.
If the stop was unlawful, trace what officers found afterward as fruit of the seizure, and keep that analysis separate from the question whether the defendant could contest the car search directly.

Students lose this issue when they treat passenger status as settling the question one way for every challenge. The same passenger who has no claim to the glove compartment can contest the stop, and the stem usually signals which challenge is being made by describing either the officers' reason for pulling the car over or the place they searched afterward.

Each defendant must show that his own rights were violated, and a passenger in a stopped car carries that burden differently depending on the target. The stop restrains the passenger personally, so the showing is made by the seizure itself. A search of a friend's car reaches only property in which the passenger has no personal interest, so the showing fails unless he can point to his own connection to the place searched.