Requirements for Standing to Assert a 4th Amendment Violation

When you encounter a 4th Amendment search and seizure question on a bar exam essay, or on an MBE question, your initial consideration should be to determine whether the person complaining of a 4th Amendment violation has standing. In this specific area of law, standing is based upon whether a person has a reasonable expectation of privacy in the place searched.

So, it's essential to determine whether an individual has a reasonable expectation of privacy, and there are guidelines for doing so. If the police search the home of X, and X owns the home, or X has the right to possess the home (this distinction is most likely to come up in a landlord/tenant context), then standing isn't a problem. In addition, if the home of X is searched, and X owns the home, even though at the time X did not have the right to possess the home (again, this could apply to a landlord/tenant relationship), then X has standing, and therefore a right to claim that the search violates his 4th Amendment rights. Finally, an overnight guest in the place searched has standing as well.

Students sometimes confuse the standing requirements listed above with the requirements necessary to validly give consent to search the premises (consent being an exception to the requirement that a search is conducted only pursuant to a valid warrant).

Although only certain people have standing to claim that a search violates their 4th Amendment rights, any person with an apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the other owners or occupants. The focus here is apparent authority. Although a parent can consent to a search of the kitchen, or basement (for example), it would be less likely that a parent would have the apparent authority to consent to the search of a child's locked room. These types of issues are best argued by addressing both sides of the issue, rather than asserting any definite certainties.