CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, March 25, 2013

Dickey on Passenger Standing

Sarah L. Dickey has posted The Anomaly of Passenger 'Standing' to Suppress All Evidence Derived from Illegal Vehicle Seizures under the Exclusionary Rule: Why the Conventional Wisdom of the Lower Courts is Wrong (Mississippi Law Journal, Vol. 82, No. 1, 2013) on SSRN. Here is the abstract:

The current method of determining passenger “standing” broadens the Exclusionary Rule to include passengers whose own Fourth Amendment rights may not have been violated. Crime-committing passengers are currently afforded a “windfall” in the form of suppressed evidence, simply because courts assume that all evidence found in the illegal seizure of a vehicle is tainted.

The conventional method of the lower courts to determine passenger “standing” to suppress all evidence derived from an illegal traffic stop breaks with the traditional analysis of “standing” used for every other violation of the Fourth Amendment. It affords vehicle passengers with a blanket right to suppress evidence that they would not have with a Fourth Amendment violation in a comparable setting, i.e. while walking down the street or as a short-term house guest. This comment proposes a different method of determining passenger “standing:” the Personal Rights approach.

The Personal Rights approach divides a traffic stop into the stop of the driver, the stop of the passenger, and the stop of the vehicle, and engages in counterfactual analysis to determine whether the incriminating evidence is actually derived from the illegal seizure of the person asserting the claim. The Personal Rights approach comports with traditional Fourth Amendment analyses of “standing,” while still allowing vehicle passengers to challenge their own illegal seizure and argue for the suppression of evidence that flows therefrom. Thus, the courts should dispense with the current conventional method and adopt the Personal Rights Approach.

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