The Hitchhikers Guide to the Fourth Amendment: The Plight of Unreasonably Seized Passengers under the Heightened Factual Nexus Approach to Exclusion
Soree, Nadia B., American Criminal Law Review
INTRODUCTION I. PASSENGERS AT THE CROSSROADS OF THE FOURTH AMENDMENT AND THE EXCLUSIONARY RULE: A SURVEY OF THE RELEVANT CASE LAW A. Origins of the Heightened Factual Nexus Approach B. Circuits Adopting the Heightened Factual Nexus Approach 1. The Sixth Circuit 2. The Tenth Circuit 3. The Ninth Circuit 4. The Eighth Circuit C. Circuits (Perhaps) Disapproving of the Heightened Factual Nexus Approach 1. The Fifth Circuit 2. The Third Circuit II. PASSENGERS WITH STANDING: ARGUMENTS FOR REJECTING THE HEIGHTENED FACTUAL NEXUS APPROACH A. Voices in Dissent: A Closer Look B. The Heightened Factual Nexus Approach: An Impossible Bind for the Reasonable, but Unreasonably Seized, Passenger 1. Defining the Fourth Amendment Seizure: From Pedestrian to Passenger 2. The Heightened Factual Nexus Test: A Veritable Kobayashi Maru Scenario for Passengers C. Passengers Suffering from Separation Anxiety: One Detention or Two? 1. Prolonging One Detention Does Not Make Two 2. A Lawful-Turned-Unlawful Traffic Stop Does Not Make Two D. The Elephant in the Courtroom: Whren v. United States and the Role of Subjective Motivations Whren v. United States: Unlawfully Motivated But Lawfully Justified 2. Subjective Motivations: When They Can and Should Matter a. Classifying the Court's Decisions Regarding Subjective Intent of Government Actors Determining Reasonableness: The Existence of Objective Justification ii. Threshold Matters: Defining Purpose Objectively iii. Threshold Matters: Focus on the Defendant iv. Threshold Matters: Official Intent in Defining Searches and Seizures v. Assessing Violations: Flagrancy of Police Misconduct b. Categorizing the Lawful-Turned-Unlawful Traffic Stop as a Flagrant Violation III. SOME PRELIMINARY DATA ON TRAFFIC STOPS INVOLVING PASSENGERS CONCLUSION
The benefits of carpooling are well documented and widely known. Being a passenger, however, does not come without its perils, at least in terms of diminished Fourth Amendment protection. (1) Over thirty years ago, the Supreme Court, in Rakas v. Illinois, established its current approach to Fourth Amendment standing in the context of suppressing the fruit of an unlawful search, holding that a defendant may seek suppression only if he has a "legitimate expectation of privacy in the particular areas" searched. (2) Addressing the admissibility of evidence found during the search of a vehicle, (3) the Court held that the petitioners, both of whom were "passengers occupying a car which they neither owned nor leased," (4) were unable to demonstrate a legitimate expectation of privacy in the vehicle. (5) Therefore, the petitioners did not have standing to contest the legality of the search.
Rakas created a harsh reality for automobile passengers: as "mere passengers," they are unable to suppress the evidence uncovered in an even egregiously unlawful search of the car in which they are riding, as they are not deemed to have suffered a personal Fourth Amendment violation. Justice White, in dissent, accused the Court of holding "that the Fourth Amendment protects property, not people," and admonished that "[i]nsofar as passengers are concerned, the Court's opinion today declares an 'open season' on automobiles." (6) Justice White continued:
[T]he ruling today undercuts the force of the exclusionary rule in the one area in which its use is most certainly justified--the deterrence of bad-faith violations of the Fourth Amendment. …