Document Type


Publication Date

Spring 2006


Among the profound issues that surround constitutional criminal procedure is the obscure often overlooked issue of who has standing to challenge an illegal search, seizure or confession. Privacy interests are often overlooked because without a legal status that allows a person to complain in court, there is no way to challenge whether one is constitutionally protected from personal invasions. Standing is that procedural barrier often imposed to prevent a person in a case from objecting to improper police conduct because of his or her relationship of ownership, proximity, location, or interest in an item searched or a thing seized. Although rarely penetrating the news headlines, those who work in the day-to-day vineyards of the criminal justice system well know the power of this concept that often is the difference between who may complain about an egregious privacy wrong and who may not. Standing is the keeper of the constitutional gate, and for defense attorneys its presence is not unlike the mythical Cerberus which guards the gates of hell and will require a Herculean effort to overcome.

Newsworthy stories of obviously guilty criminals going free because of the constable's blunder have often lead to cries for sometimes extreme criminal justice reform. But the frequency of such rulings as compared to the political attention they receive does not accurately reflect the difficulty of a defendant prevailing on an issue where the "exclusionary rule" is actually invoked. The concept of standing however plays into not only who can seek the protection of the courts, but how those laws are challenged and interpreted by trial and appellate courts. The procedural doctrine acts as a constitutional gatekeeper that determines who may articulate arguments on the merits of their constitutional privacy claims. Like all procedural tools their functional value is in providing some efficiency and predictability to the system, so that courts may only resolve disputes properly before them. Efficiency is an important value, but when the balance between efficiency and protecting fundamental rights tips too far toward strict adherence to process it may well be time to examine whether the rule needs to be modified.

As we enter the twenty-first century with a notable increase in technology, greater concerns for security brought about by terrorist activity, most notably the tragedy of September 11, 2001, examination of the fundamental doctrine that protects our privacy is necessary. Assumptions about how well those rules operate in the current climate of emerging technology, high crime, and terrorism concerns should be reexamined. We should be sure that the circumstances of a changing world do not lead to the long term application of legal principles ill-suited to the demands of a new era.

The purpose of this article is to examine some fundamental principles of standing as they relate to other privacy issues. Many of these concerns have been ignored by contemporary courts as the technology that affects privacy interests has marched forward at a break-neck pace. The rules of standing as currently applied will lead to unduly restrictive access to challenging government conduct effecting privacy interests.

Furthermore, the standing rules as currently applied have lead to the development of faulty doctrine in the area of the exclusionary rule, which affects Fourth Amendment rights in general. Opinions that are both illogical and difficult to apply have resulted from current standing rules, and both defense and prosecution interests have suffered from the poorly crafted jurisprudence that has resulted. The ill-conceived jurisprudence of standing will clearly continue if broader, more predictable, rules of standing are not developed to meet the challenges of our high technology age. Indeed, it is my belief that the poorly reasoned and outdated Fourth Amendment precedent, combined with the rapid increase in intrusive technology, creates a dangerous lack of checks and balances in privacy protection and the public's ability to adequately respond.

I propose that standing rules need to be expanded in some areas and clarified in others. Specifically, in a world where video surveillance is increasingly in use, it makes sense to apply liberal standing rules to those circumstances. Furthermore, the concept of standing needs to be clarified as related to the seizure of items from electronic databases to insure proper development of Fourth Amendment law.

Recent attempts by the federal government to assist law enforcement by relaxing requirements for investigating alleged terrorism under the Patriot Act have brought the issue of government surveillance to the attention of an anxious nation that wants both freedom and security. Indeed, Congress and the executive branch continue to struggle with what level of intrusion is necessary to insure security. There has also been legislative action on the state level to address the problem of police access to high technology in investigating crime after September 11, 2001. Groups calling for more concern for the protection of privacy have also raised concerns that privacy rights are being unfairly curtailed.

The creation of an office of homeland security and the continuing war on terrorism have made citizens of the United States acutely aware that notions of privacy are being challenged in ways unknown to prior generations. By clarifying the role that standing plays in the constitutional equation, we may be able to create a more efficient and predictable system to review the uses of privacy technology.



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