THE EFFECTS, THIRTY YEARS IN HINDSIGHT, OF ELIMINATING THE CONCEPT OF FOURTH AMENDMENT “STANDING”

robert h. whorf, Barry University School of Law

Abstract

Abstract – The Effects, Thirty Years in Hindsight, of Eliminating the Concept of Fourth Amendment Standing Copyright 2009 Robert H. Whorf This article presents a novel look at Fourth Amendment “standing” doctrine. It considers a case that has perplexed courts for three decades – Rakas v. Illinois, 439 U.S. 128 (1978). The article chronicles an amazing variety of responses from lower courts in the years following issuance of the decision. Those responses indicate that courts were considerably confused about whether Rakas actually eliminated the concept of 4th Amendment standing by collapsing it into the threshold merits inquiry, or whether Rakas simply eliminated the label “standing” without affecting underlying standing doctrine. The Court’s 1998 decision in Minnesota v. Carter, 525 U.S. 83, added to the confusion. It expressly asserted that lower courts erred by undertaking analysis “under the rubric of standing doctrine” because that was “an analysis which this Court expressly rejected 20 years . . . [earlier] in Rakas.” Then the Carter Court went on to support its conclusion with a rationale steeped in traditional standing doctrine (though it avoided use of the term “standing” of course). I examine how some courts around the country responded to this sequence of decisions. I also examine some scholarly thinking on the issue of the viability of truly eliminating the concept of standing for Bill of Rights provisions protecting individuals under the U. S. Constitution. In fact, the U. S. Supreme Court had before it in 1978 other examples of this line of thought from its own precedent. My ultimate conclusion is that the Court must choose between two divergent routes – at least if it is to begin to rectify the confusion caused by Rakas and Carter . One route would be to credit Carter’s analytical approach thereby conceding that Rakas eliminated the label, but not the concept, of 4th Amendment standing. The other avenue would be for the Court to reinvigorate Rakas by asserting that the concept of 4th Amendment standing has been subsumed in the threshold merits inquiry of whether government has conducted a “search.” In the end, I support the latter approach. I propose that a single threshold merits test can truly subsume standing inquiry by balancing a defendant’s connectedness to the item search (where logically plausible to do so) against the nature of the government intrusion occasioned by the search activity. I show how the proposed rule would work in Carter and for a couple of other fact patterns. I support my proposal by showing especially how it effectively anticipates the increasingly frequent fact patterns in which government has employed technological sense enhancement to intrude on individua