By Kelly Walters, J.D. Candidate
The exclusionary rule prevents evidence that was obtained through unlawful search and seizure from being admitted in trial. The “fruit of the poisonous tree” doctrine holds that any further evidence found as a result of information uncovered through an unlawful search is also inadmissible at trial. The logic is that if the source of the evidence, the “tree,” is tainted, so too are its gains, or “fruit.” The doctrine was created to safeguard an individual’s privacy interest under the Fourth Amendment and deter police from using unconstitutional means to gather evidence.
But what happens if the person unlawfully searched is not the defendant? Can the defendant then challenge the constitutionality of the search if it produced incriminating evidence against him or her? If the search was conducted in bad faith, can the defendant challenge it through other means, such as the Fifth Amendment or a Franks hearing?
The short answer is no, at least within the Ninth Circuit. The reason is tied to standing. Since the defendant’s privacy interest was not invaded, he or she does not have standing under the Fourth Amendment to challenge a search of someone else. Even if the search “shocks the conscience,” the third party has no legal redress because his or her Fourth and Fifth Amendment rights were ultimately not invaded. Since the searched individuals are rarely parties to the case, they will not challenge the search either. As the following cases show, this leaves a third party defendant with limited, if any, legal recourse. It also raises important questions on how to deter police from invading the rights of one individual to ultimately convict another.
Defendants can challenge a search under the exclusionary rule if they were personally searched, United States v. Cella, 568 F.2d 1266, 1279 (9th Cir. 1977), or had a “legitimate expectation of privacy” under the totality of the circumstances, Rakas v. Illinois, 439 U.S. 128 (1978), United States v. Flores, 172 F.3d 695, 698–99 (9th Cir. 1999). Mere possession is not sufficient to establish a reasonable expectation of privacy. See, e.g., Rawlings v. Kentucky, 448 U.S. 98 (1980) (no standing where defendant’s drugs were discovered in search of a friend's purse of which he had no interest); Hill v. United States, 374 F.2d 871 (9th Cir 1995) (no standing where police seized defendant’s corporate documents from a relative). A third party also cannot challenge a search simply because evidence found as a result of it was later used to search him. See United States v. Baker, 256 F.3d 855 (9th Cir. 2001) (holding that defendant had no right to challenge illegal wiretap where defendant was not party nor was it on his premises even though evidence found was used to obtain a wiretap on defendant).
Although the Ninth Circuit attempted to carve out a “co-conspirator” exception for third parties within the reasonable expectation of privacy doctrine, the Supreme Court overruled it in 1993. See United States v. Padilla, 508 U.S. 77, 113 (1993), reversing, 960 F.2d 854 (9th Cir. 1992). Under the Ninth Circuit’s proposed exception, a third party could have a reasonable expectation of privacy if a “formal arrangement” in the conspiracy indicated that the property being searched was under “joint control or supervision” of the defendants. Id.(allowing defendants to suppress cocaine seized from an unlawful search of someone else’s vehicle because their “supervisory” role in the drug deal rendered the drugs and vehicle under “joint control”). Although the exception would have potentially included third parties, id., the Supreme Court reversed the decision in 1992, holding that the co-conspirators, like all defendants, must prove a reasonable expectation of privacy, and that the conspiracy itself “neither adds to nor detracts from [property or privacy] interests,” Id. at 82. Following Rakasand Alderman, Padilla was the last of a series of cases that virtually eliminated third party standing. See Rakas, 439 U.S. 128(holding that third party “target” of search cannot challenge unless his or her rights were violated);Alderman v. United States, 394 U. S. 165 (1968) (holding that codefendants cannot challenge a search simply because it produced evidence against them).
There is also no third party standing if the search was conducted in bad faith. In United States v. Payner, 447 U.S. 727 (1980)the Supreme Court held that a defendant lacked standing under the Fourth Amendment to suppress tax documents the IRS seized from an officer of a Bahamian bank by breaking into the officer’s hotel room. Id.at 729-30. The court stated that the Bahamian law on bank privacy did not give the defendant a reasonable expectation of privacy, id. at 732, and while courts “may use their supervisory power . . . to exclude evidence taken from the defendant by willful disobedience of law . . . [t]his Court . . . has never held that the supervisory power authorizes suppression of evidence obtained from third parties in violation of a Constitution”Id. at 735 (emphasis added). Even though three justices dissented to the Payner holding, no circuit court has limited its scope. Id. at 738. Payner has also been directly applied to exclusionary rule cases, see, e.g., United States v. Lockett, 919 F.2d 585, 590 (9th Cir. 1990),even though the decision was analyzed under the court’s supervisory powers, not the fourth amendment itself, 447 U.S. at 735.
Many of the same standing issues also apply to challenges outside the exclusionary rule. Although a defendant may challenge the integrity of police affidavits supporting a search warrant via a Franks hearing, the authority ofFranks is ultimately derived from an invasion of a defendant’s private Fourth Amendment rights. See Franks v. Delaware, 438 U.S. 154, 154 (1978). Therefore while Franks may allow individuals to challenge a warrant derived from a previous bad faith search, expanding inadmissibility beyond the Baker holding, 256 F.3d 855, they must ultimately have standing under the Fourth Amendment to do so. Franks, 438 U.S. at 154, accord,United States v. Mastromatteo, 538 F.3d 535 (6th Cir. 2008).
Similarly, a defendant may be able to challenge a search under the due process clause if the police’s conduct was so egregious that it “shock[ed] the conscience.” Rochin v. California, 342 U.S. 165, 172 (1952). However, like Franks, Rochin is based on a defendant’s due process rights, the idea being that some abuses of government power are so outrageous that no remedy save due process can adequately preserve a person’s freedom from such conduct. See Daniels v. Williams, 474 U.S. 327, 338 (1986).So not only is the bar for outrageous conduct very high,see Breithaupt v. Abram, 352 U.S. 432 (1957) (administering a blood test on an unconscious defendant did not shock the conscience), but in cases where a third party is injured the third partytends to separately go to court claiming redress, not the defendant. See, e.g., Onossian v. Block, 175 F.3d 1169 (9th Cir. 1999); Temkin v. Frederick County Commissioners, 945 F.2d 716 (4th Cir. 1991).
In conclusion, while there is precedent for treating bad faith searches differently, all the potential avenues for challenge are deeply tied to an individual’s personal rights under the Constitution. As long as doctrines are tied to these rights, third parties are unlikely to have standing to challenge even deliberate or bad faith violations of the Constitution as a defense to a criminal prosecution. One potential way to incorporate third party redress could be to define a bad faith search as a violation of due process that is cognizable for a third party or co-defendant. Another (albeit more doctrinally challenging) route would be to re-conceptualize the exclusionary rule as a balancing test, in which society’s interest in deterring unethical police conduct is weighed against the private rights that are invaded. However, this assumes that deterrence is a primary goal of the doctrine. Therefore, we must reflect on the exclusionary rule’s primary purpose. Is it inherently personal, aimed at narrowly protecting a defendant’s rights, or is it societal, aimed at deterring unlawful police behavior? If deterrence is a primary objective of the rule, then the lack of third party standing may impede its accomplishment and ultimately force the court to look beyond individual privacy interests for a solution.