When you file a suppression motion in federal court, certain things will almost always happen. First, the government will threaten to withdraw offers of resolution and foreswear any future motion for acceptance of responsibility points for your client. (Whether this is proper or not is a topic for a future blog.)

Second, the government will challenge your client’s "standing" to make the suppression motion and demand a declaration from your client or, if you have already provided a declaration, the government will claim the declaration is insufficient. This will happen in almost every case.

The government will invariably couch its challenge to your client’s right to protest an illegal search in terms of "standing." The United States Supreme Court, however, has not adopted the use of this common law term to define the limits of Fourth Amendment protection. Rather the Court has stated that the "definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing." Rakas v. Illinois, 439 US 128, 140 (1978). You don’t have to use the term "standing" if the Supreme Court doesn’t and it is usually better to frame your issue in terms of your client’s privacy expectations.

"the Fourth Amendment protects people, not places"

This is a classic quote from Katz v. United States, 389 U.S. 347, 351 (1967). In Katz, the government tried to avoid the warrant requirement for taping phone calls by attaching an eavesdropping device to the outside of a public telephone booth. Rejecting the government’s property­-based standing argument, the Supreme Court affirmed the suppression of the recordings and held that a "Fourth amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable." Katz, 389 U.S. at 361 (Harlan, J. concurring) (cited in Kyllo v. United States, 533 U.S. 27, 33 (2001).

After Katz, the government continued its efforts to cordon off Fourth Amendment protection to property rather than people, usually arguing that if a person doesn’t have property rights for a location or a thing, he or she has no reasonable expectation of privacy to protest the search or seizure. Courts have resisted this argument in certain contexts, see United States v. Gargiso, 456 F.2d 584 (2d Cir. 1972) (holding that a person has a right to privacy in a hotel room and the hotel clerk can’t consent to the search), while yielding to it in others, see California v. Greenwood, 486 U.S. 35, 41 (1988) (holding a person has no expectation of privacy in discarded trash waiting for pickup by trash collector).

The Two Minnesota Cases

In Minnesota v. Olson, 495 U.S. 91 (1990)

, the Supreme Court held that an overnight guest enjoys an expectation of privacy that society deems legitimate. The Olson language is inclusive and should be used to resist the government’s efforts to contract the boundaries of Fourth Amendment protection:

We stay in others' homes when we travel to a strange city for business or pleasure, when we visit our parents, children, or more distant relatives out of town, when we are in between jobs or homes, or when we house­sit for a friend. We will all be hosts and we will all be guests many times in our lives. From either perspective, we think that society recognizes that a houseguest has a legitimate expectation of privacy in his host's home.

495 U.S. at 498.

In contrast to Olson stands another Minnesota case: Minnesota v. Carter, 525 U.S. 83, 98­, 99 (1998) (holding that occupants of an apartment who were using the apartment solely for the illegal commercial purpose of bagging cocaine lacked an expectation of privacy sufficient for Fourth Amendment protection).

The government will always urge the court to employ Carter, while the defendant will argue for an application of Olson. In advancing the Olson argument, it is important to emphasize that the issue is

the privacy interest of the guest, not the actual "overnight" status of the guest, and that Carter is the exception, not the rule. And in United States v. Fields, 131 F.3d 313, 321 (2d Cir. 1997), the Second Circuit set forth a slightly more expansive rule than that in Olson: "any guest, in appropriate circumstances, may have a legitimate expectation of privacy when he is there ‘with the permission of his host, who is willing to share his house and his privacy with his guest,’" even when the apartment was also used for drug packaging. Also, in United States v. Pollard, 215 F.3d 643, 647-­48 (6th Cir. 2000), the Sixth Circuit held that a guest who was present at the premises for a commercial drug sale, but who had also previously stayed at the premises and had personal property there, was protected by the Fourth Amendment.

Conclusion

Always view the government’s argument of lack of standing skeptically. Frame your issue in terms of privacy interests rather than common law standing. And remember the more vociferous the government challenges standing, the more it is signaling to you, and to the court, its reluctance to argue the constitutionality of the search or seizure at issue.

Posted o/b/o Bill Easton

Up Next from Bill: the filing of affidavits or declarations from your client to support suppression motions.