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"Standing" Needed to Challenge an Illegal Search and Seizure

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In order to challenge the constitutionality of a police search, one must have "standing."

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By Attorney Elisabeth K.H. Pasqualini, Drug Crimes Defense Lawyer, Harrisburg, PA

In its simplest form, "standing" is the personal right to exercise a constitutional challenge.

The law governing standing to attack the validity of a search and seizure has consistently adhered to the principle that constitutional rights under the Fourth Amendment are personal in nature. Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973).

What's a Personal Interest?

Under Brown, a defendant must allege one of the following "personal" interests in order to establish standing: (1) his presence on the premises at the time of the search and seizure; (2) a possessory interest in the evidence improperly seized; (3) that the offense charged include as an essential element of the prosecution's case, the element of possession at the time of the contested search and seizure; or (4) a proprietary or possessory interest in the searched premises. See Commonwealth v. Treftz, 465 Pa. 614, 351 A.2d 265 (1976).

Where the defendant has a reasonable expectation of privacy with respect to the searched premises, he had standing, even though he might not have had any interest in the items seized. Commonwealth v. Strickland, 457 Pa. 631, 326 A.2d 379 (1974).

What does Privacy mean?

The privacy test for purposes of the Fourth Amendment is two-fold. First, the expectation must not only be actual but also be one that society is prepared to recognize as reasonable. To have a reasonable expectation of privacy, one must intend to exclude others and must exhibit that intent. Commonwealth v. Lowery, 305 Pa.Super. 66, 451 A.2d 245 (1982). Accordingly, there is a reduced expectation of privacy in premises or things that are shared with another and there is an assumed risk that something left in the custody or control of another may find its way to the police. Commonwealth v. Van Jordan, 310 Pa.Super. 516, 456 A.2d 1055 (1983).

If you, your car, your home, or your personalty have been subject to a search by police, you need to know your rights.  You may have a legitimate expectation of privacy in the items or places searched.  The manner and method by which the police search may lend itself to a constitutional challenge.

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