Reply Brief — United States v. Salvucci

FOR ARGUMENT

Supreme Court, U.S.

eri ED

MAR 20 1980

No. 79-244

CARECRODAR, JR., CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1979

UNITED STATES OF AMERICA, PETITIONER

Vv.

JOHN M. SALVUCCI, JR., AND JOSEPH G. ZACKULAR

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CiRCUIT

REPLY BRIEF FOR THE UNITED STATES

WADE H. McCreg, Jr.

Solicitor General

Department of Justice

Washington, D.C. 20530

INDEX

Page

I. Because a defendant’s possessory inter-

est in contraband seized during a search

does not entitle him to seek suppression

of that evidence on the ground that the

search violated the Fourth Amendment,

the “automatic standing” rule cannot be

justified by reference to principles of .

“PCTS RII eerecentesioteiiaientiecinnnes 5”

A. A proprietary or possessory inter- —

est in items seized does not entitle

a defendant to challenge the under-

CII eiccctenccencateceeenaaaiinns 5

B. A defendant’s possessory interest

in contraband is totally illegitimate

and does not give rise to any rights

under the Fourth Amendment........ 15

II. Even if a defendant is entitled to chal-

lenge a search solely on the basis of his

possessory interest in the contraband

seized, the “automatic standing” rule

should be abolished because it allows evi-

dence to be suppressed at the behest of

defendants whose Fourth Amendment

rights have not been violated -............... 21

CIE an cativsnccimsvneen cabana ia cee 26

CITATIONS

Cases:

Alderman v. United States, 394 U.S. 165.. 2,11,

19, 20, 22

Arkansas v. Sanders, No. 77-1497 (June

| aCe MRM SRC ARATE SYNE” 8,11, 15

II ; Ill

Cases—Continued Page Cases—Continued Page

' Bailey v. United States, 389 F.2d 306 ...... 3 United States v. Archbold-Newball, 554

Brown v. United States, 411 U.S. 2238....2, 13, 16, F.2d 665, cert. denied, 434 U.S. 1000.... 10, 25

17, 20 United States v. Block, 590 F.2d 585 ........ 8

Combs v. United States, 408 U.S. 224........ 13 United States v. Botero, 589 F.2d 480,

Goldman v. United States, 316 U.S. 129.... 6 cert. denied, 441 U.S. 944 ...................... 17

Gray v. State, 48 Md. App. 238, 408 A.2d United States v. Bozza, 365 F.2d 206 ........ 17,19

SD aes sais cccicsinssiniesnencctieesdchn ean 3 United States v. Bruneau, 594 F.2d 1190,

Hankerson v. North Carolina, 482 U.S. cert. denied, No. 78-6592 (Oct. 1,

«MPR GAL NULL ONS: 7 I onde eeeaeite. 17

Jones v. United States, 362 U.S. 257.......... passim United States v. Calandra, 414 U.S. 338... 19

Katz v. United States, 389 U.S. 347 .......... 6, 16 United States v. Ceccolini, 485 U.S. 268... 19

Mancusi v. DeForte, 392 U.S. 364......9, 11, 18, 14 United States v. Croft, 429 F.2d 884 ........ 11

~ McGautha v. California, 402 U.S. 188 ...... 3 United States vy. Crowell, 586 F.2d 1020,

Olmstead v. United States, 277 U.S. 488... 6 cert. denied, 440 U.S. 959 ...................... 10

People v. Douglas, 66 Cal. App. 3d 998, United States v. Dall, 608 F.2d 910, cert.

196 Cal. Reet. GO6 ce 3 denied, No. 79-5769 (Mar. 3, 1980)...... 6

People v. Sturgis, 58 Ill.2d 211, 317 N.E. United States v. Dubrofsky, 581 F.2d 208.. 18

BE BOD sicccsinnnicintlininGieenas 3 United States v. Dyar, 574 F.2d 1385,

Pinkerton v. United States, 328 U.S. 640.. 22, 23, cert. denied, 489 U.S. 982 ...................... 6

25 United States v. Emery, 541 F.2d 887 ...... 18

Rakas v. Illinois, 489 U.S. 128 .................. passim United States v. Evans, 572 F.2d 455, cert.

Rawlings v. Kentucky, cert. granted, No. UR, i U icevsncctcciineivtnicnsn 10

79-5146 (Dec. 10, 1979) .................. 2, 4, 12, 25 United States v. Galante, 547 F.2d 733,

Simmons v. United States, 390 U.S. 377.... 2, 3, 4, cert. denied, 431 U.S. 969 .................... 9,10, 17

13 United States v. House, 524 F.2d 1085...... 10

State v. Buckley, 171 Mont. 238, 557 P.2d United States v. Hunt, 505 F.2d 981, cert.

SE \cepecihinegsattabeaea sindinnanaailia Sovinaalocetitiasds 3 denied, 421 U.S. 975 ..............-.--.-.- 10, 22, 23, 25

State v. Petrovich, 125 N.J. Super. 147, United States v. Hunter, 550 F.2d 1066... 10

SOO Ae Ge cic 3 United States v. Jackson, 585 F.2d 653..10, 11, 15

State v. Vega, 168 Conn. 304, 306 A.2d United States v. Janis, 428 U.S. 488 ........ 19

TOI . nscshniastchohsculeovaslocaiaaa cian tema eadaaeslae 3 United States v. Jeffers, 342 U.S. 48....11, 18, 14,

Stone v. Powell, 428 U.S. 465 ...................- 19 15, 18

United States v. Akin, 562 F.2d 459, cert. United States v. Lisk, 522 F.2d 228, cert.

Guied, 460 Ge. OOo kcal 11 denied, 423 U.S. 1078, subsequent opin-

0m, GOO F.26 TICS q....cescnens 8, 9, 18, 14, 15

IV

Cases—Continued Page

United States v. Lopez, 420 F.2d 318 ........ 10, 15

United States v. Mazzelli, 595 F.2d 1157,

petition for cert. pending sub nom.

United States v. Conway, No. 79-393....4, 9, 10

United States v. McCambridge, 551 F.2d

IE insdivesichsinvnsissicsieeinabaiauddan baba pnaaaiatnae 16, 17

United States v. Miller, 425 U.S. 4865 ........ 20

United States v. Moore, 562 F.2d 106,

cert. denied, 435. U.S. 926 ...................... 17

United States v. Newmann, 585 F.2d 355.. 8

United States v. New York Telephone Co.,

Ee I bnatpnncssisrenntadliceeieiibennin 7

United States v. Parizo, 514 F.2d 52 ........ 11

United States v. Pringle, 576 F.2d 1114.... 18

United States vy. Rios, 611 F.2d 1335 ........ 6, 22

- United States v. Sacco, 486 F.2d 780, cert.

OG, SR Us I in inci iclecsiccecenadone 17

United States v. Smith, 550 F.2d 277,

cert. denied, 434 U.S. 841 .........2002022...... 10

United States v. Washington, 586 F.2d

NUP. cisickesiasiscaniatqissecncenispsasataliaadasdiante 17-18

United States v. Wilson, 586 F.2d 883,

cert. denied, 429 U.S. 982 ...................... 10

Warden v. Hayden, 387 U.S. 294 ............ 7, 15, 20

Woody v. United States, 379 F.2d 1380,

cert. denied, 389 U.S. 961 ...................... 3

Zurcher v. Stanford Daily, 486 U.S. 547.. 20

Constitution, statute and rules:

United States Constitution,

Fourth Amendment ...............................- passim

I SIE sotrvceipteccsnnivrsonccennesccn conasnionepieseicieals 23, 24

eA | |} RN en oe Sams 26

Fed. R. Evid. 801(d) (1) (A) cccccsseeseosoo--- 2

Miscellaneous:

Gutterman, “A Person Aggrieved” : Stand-

ing to Suppress Illegally Seized Evi-

dence in Transition, 23 Emory L.J. 111

CREE -icicehnentichicheallinipsadiceriiiaantainatabilbicintens

Knox, Some Thoughts on the Scope of the

Fourth Amendment and Standing to

Challenge Searches and Seizures, 40

ere Sel.) eens

3 W. LaFave, Search and Seizure: A Treat-

ise on the Fourth Amendment (1978)..

W. Prosser, The Law of Torts (4th ed.

BOPTED sskciaigaridleaacaacilamplicainanicinin tudes

Trager & Lobenfeld, The Law of Stand-

ing Under the Fourth Amendment, 41

Brooklyn L. Rev. 421 (1975) ................

Page

12,17

Iu the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-244

UNITED STATES OF AMERICA, PETITIONER

Vv.

JOHN M. SALVUCCI, JR., AND JOSEPH G. ZACKULAR

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

The “automatic standing” rule of Jones v. United

States, 362 U.S. 257 (1960), enables a defendant to

seek the suppression of evidence on Fourth Amend-

ment grounds even though his own constitutional

rights were not violated.’ It thus serves to “allow a

1 The question presented in this case (Pet. 2; U.S. Br. 2) is

“Twlhether a defendant whose constitutional rights were not

violated by an unlawful search may nevertheless obtain sup-

pression of an item seized during the search solely because

the indictment charges him, as an essential element of the

offense, with unlawful possession of that item at the time of

the search” (emphasis added).

(1)

2

defendant to assert the Fourth Amendment rights of

another.” Rakas v. Illinois, 439 U.S. 128, 135 n.4

(1978). In this way, the “automatic.standing” rule

is at odds with the well-settled principle that “ ‘Fourth

Amendment rights are personal rights which, like

some other constitutional rights, may not be vicari-

ously asserted.’” Rakas v. Illinois, supra, 439 U.S.

at 133-134, quoting Alderman v. United States, 394

U.S. 165, 174 (1969).

In our opening brief we demonstrated that neither

of the two rationales relied on in Jones—“the [de-

fendant’s] self-incrimination dilemma” and “the vice

of prosecutorial self-contradiction” (Brown v. United

States, 411 U.S. 223, 228, 229 (1973) )—is adequate

to sustain the continued validity of the “automatic

standing” rule. This argument remains largely un-

answered by respondents.? )

Instead, respondent Salvucci offers a wholly dif-

ferent theory to support the “automatic standing”

* Respondents do suggest (Salvucci Br. 13-14; Zackular

Br. 5-8) that the self-incrimination dilemma persists despite

Simmons v. United States, 390 U.S. 377 (1968), because of

the possibility that the prosecutor could use a defendant’s

suppression-hearing testimony to impeach the defendant’s

testimony at trial, to gain leads to other evidence against the

defendant, to prepare the government’s trial strategy, or to

learn of additional crimes with which to charge the defendant.

These concerns, together with the further contention that in

some jurisdictions the defendant’s suppression-hearing testi-

mony may be substantively admissible at trial as a prior in-

consistent statement (see Fed. R. Evid. 801(d) (1) (A)), are

also advanced in support of the “automatic standing” rule by

petitioner in Rawlings v. Kentucky, cert. granted, No. 79-

5146 (Dec. 10, 1979). See Pet. Br. 31-40. Of course, these

issues regarding the limits of Simmons are not before the

3

rule. He first contends (Br. 5-11) that, at least in

cases where possession at the time of the search is an

essential element of the offense as charged, a de-

Court in this case except insofar as they may bear on “auto-

matic standing.”

We have previously indicated (U.S. Br. 21-23 n.14) our

view that Simmons does not preclude the use of a defendant’s

suppression-hearing testimony for impeachment purposes at

trial. This position is in accord with the decisions of those

courts that have considered the issue. See Gray v. State,

43 Md. App. 238, 403 A.2d 853 (1979); People v. Douglas,

66 Cal. App. 3d 998, 186 Cal. Rptr. 358 (1977); State v.

Buckley, 171 Mont. 238, 557 P.2d 2838 (1976); People v.

Sturgis, 58 Ill. 2d 211, 317 N.E.2d 545 (1974); State v.

Petrovich, 125 N.J. Super. 147, 309 A.2d 281 (1973); State

v. Vega, 163 Conn. 304, 306 A.2d 855 (1972). See also Bailey

v. United States, 389 F.2d 305, 311 (D.C. Cir. 1967), cited in

Simmons, supra, 390 U.S. at 392 n.16, and Woody v. United

States, 379 F.2d 130, 181-182 (D.C. Cir.) (Burger, J.), cert.

denied, 389 U.S. 961 (1967). As discussed in our opening

brief, however, this impeachment rule rests on the defendant’s

obligation to testify truthfully and limits only his ability to

make contradictory statements at the two proceedings. Thus,

it does not constitute the “dilemma” posed in Jones that a

defendant’s truthful testimony at the suppression hearing

was tantamount to an admissible confession of guilt regard-

less of whether he took the stand at trial. To the extent

that “such use create[s] an unacceptable risk of deterring

the prosecution of marginal Fourth Amendment claims, thus

weakening the efficacy of the exclusionary rule as a sanc-

tion for unlawful police behavior” (McGautha v. California,

402 U.S. 183, 211 (1971)), the appropriate course would be

to expand the Simmons use-immunity, not to perpetuate the

“automatic standing” rule. ,

For much the same reasons, the use of a defendant’s prior

inconsistent testimony as substantive rebuttal evidence at —

trial, even if permitted by Simmons, would not present the

Jones self-incrimination dilemma. Rather than having the

potential of inducing a truthful defendant to forgo a legiti-

4

fendant’s possessory interest in the item seized is

sufficient in and of itself to entitle the defendant to

raise a Fourth Amendment challenge to the under-

lying ‘search.’ He then asserts (Br. 11-14) that the

mate Fourth Amendment claim, this use of the defendant’s

statements would simply help to discourage fabricated de-

fenses at trial. And once again, if the Court concludes that

such use is impermissible, the better solution would be to

extend the scope of Simmons, not to exclude reliable and

probative evidence under the rule of “automatic standing.”

Finally, the fear of a prosecutorial “fishing expedition” at

the suppression hearing does not militate in favor of “auto-

matic standing.” This argument overlooks the responsibility

of the prosecutor and the authority and duty of the presiding

judicial officer to keep the hearing within proper bounds. But

more importantly, it is completely unrelated to the “special

problem” (362 U.S. at 261) regarding possessory offenses that

concerned the Court in Jones. On the contrary, this argu- -

ment is equally applicable to all suppression hearings and, if

accepted, would lead to the conclusion that no defendant

should be required to establish “standing.” This Court, how-

ever, has repeatedly declined to broaden without limit the

class of defendants that may move to suppress evidence, and

as Jones itself noted (362 U.S. at 261), “ [o]rdinarily * * *

it is entirely proper to require of one who seeks to challenge

the legality of a search as the basis for suppressing relevant

evidence that he allege, and if the allegation be disputed that

he establish, that he himself was the victim of an invasion of

privacy.”

* This argument also arises outside the context of “auto-

matic standing” as an asserted basis for a defendant’s “actual

standing.” Indeed, petitioner in Rawlings v. Kentucky, supra,

makes precisely the same argument (Br. 46-58) to show his

“actual standing” to contest the search in that case. See also

United States v. Mazzelli, 595 F.2d 1157 (9th Cir. 1979),

petition for cert. pending swb nom. United States v. Conway,

No. 79-393 (filed Sept. 7, 1979). Our response to this aspect

of Salvucci’s argument on “automatic standing” is fully

applicable to these related arguments on “actual standing.”

5

requisite possessory interest is necessarily established

by the very charge of unlawful possession for which

the defendant is being prosecuted, and therefore that

the “automatic standing” rule is justified to avoid

the needless formality of an inquiry into “standing”

at the suppression hearing. In our view, however,

neither the premise nor the conclusion of this position

is sound.

I. BECAUSE A DEFENDANT’S POSSESSORY IN-

TEREST IN CONTRABAND SEIZED DURING A

SEARCH DOES NOT ENTITLE HIM TO SEEK

SUPPRESSION OF THAT EVIDENCE ON THE

GROUND THAT THE SEARCH VIOLATED THE

FOURTH AMENDMENT, THE “AUTOMATIC

STANDING” RULE CANNOT BE JUSTIFIED BY

REFERENCE TO PRINCIPLES OF “ACTUAL

STANDING”

A. A Proprietary Or Possessory Interest In Items

Seized Does Not Entitle A Defendant To Challenge

The Underlying Search

The Fourth Amendment protects against both un-

reasonable searches and unreasonable seizures. As is

now well settled (see U.S. Br. 9-10), the touchstone

of a search is a governmental intrusion upon a per-

son’s legitimate expectation of privacy. In contrast,

the salient feature of a seizure of physical evidence

is a governmental interference with the complex of

property rights derived from a person’s interest in or

relation to a particuiar object. A search “depends

not upon a property right in the invaded place”

(Rakas v. Illinois, supra, 489 U.S. at 143) but rather

on an expectation of privacy “that society is prepared

6

to recognize as ‘reasonable’ ” (id. at 144 n.12, quoting

Katz v. United States, 389 U.S. 347, 361 (1967)

(Harlan, J., concurring) );* a seizure, on the other

hand, implicates precisely those property rights that

a perso’ has by virtue of his ownership or possession

of the given object.®

* While property interests remain relevant in assessing

one’s reasonable expectation of privacy (Rakas v. Illinois,

supra, 439 U.S. at 143-144 n.12), even the owner of the

premises or property searched is not entitled to seek the sup-

pression of evidence if he had no privacy interest that was

invaded. See, e.g., United States v. Rios, 611 F.2d 1335, 1345

(10th Cir. 1979) ; United States v. Dall, 608 F.2d 910, 914

(1st Cir. 1979), cert. denied, No. 79-5769 (Mar. 3, 1980) ;

United States v. Dyar, 574 F.2d 1385, 1390 (5th Cir.), cert.

denied, 439 U.S. 982 (1978).

5 At one time, the law of both searches and seizures was

grounded in property concepts. For example, in cases of

eavesdropping or electronic surveillance, the onee-prevailing

rule was that the Fourth Amendment did not apply unless

there occurred a trespass or other infringement of the per-

son’s property right. See Goldman v. United States, 316 U.S.

129 (1942) ; Olmstead v. United States, 277 U.S. 438 (1928).

This rule was repudiated in Katz v. United States, 389 U.S.

347, 353 (1967), on the basis “that the Fourth Amendment

protects people—and not simply ‘areas’—against unreasonable

searches and seizures” and that “[t]he Government’s activi-

ties in electronically listening to and recording the [defend-

ant’s] words violated the privacy upon which he justifiably

relied while using the telephone booth.” Similarly, in Jones

v. United States, supra, 362 U.S. at 266, the Court disap-

proved the “course of decisions by lower courts” that a per-

son’s “standing” to challenge a search depended upon his

rights in the searched area under the common law of private

property. See also Rakas v. Illinois, supra, 489 U.S. at 142-

143, 148-149 n.17.

With respect to seizures, “historically the right to search

for and seize property depended upon the assertion by the

7

Salvucci’s contention—that a defendant is entitled

to challenge the validity of a search of a third-party’s

premises or property solely because he claims a pos-

sessory interest in an item seized during that search

—ignores this fundamental distinction between a

search and a seizure. While the defendant in those

circumstances may litigate the legality of the seizure,

he has no interest cognizable under the Fourth

A-nendment that allows him to contest the lawfulness

of the search of another person’s property or prem-

ises.°

Government of a valid claim of superior interest [in the

property].” Warden v. Hayden, 387 U.S. 294, 303 (1967).

This so-called “mere evidence” rule, which allowed govern-

mental seizures of contraband or instrumentalities or fruits

of crimes but not of items that were of only evidentiary

value, was abandoned by the Court in Hayden. Thus, while

a seizure is still defined with reference to a person’s property

interest in the seized object, it is no longer required that the

government assert a superior interest in order to take pos-

session.

® Respondents have not attacked the seizure of the stolen

mail from the apartment rented by Zackular’s mother, nor

could they reasonably do so.

For the first time, Salvucci now argues (Br. 10 n.6) that

the stolen mail was contained in a cardboard box, a paper

bag, and a white envelope (see A. 15) and hence that the

police officers’ search of these containers gives respondents

“actual standing” to controvert the validity of the warrant.

We suggest that the Court should not consider this conten-

tion, since it was not raised in the courts below. See, e.g.,

Hankerson v. North Carolina, 482 U.S. 238, 240 n.6 (1977)

(“[a] respondent may make any argument presented below

that supports the judgment of the lower court”) (emphasis

added) ; compare United States v. New York Telephone Co.,

434 U.S. 159, 166 n.8 (1977). In any event, Salvucci does not

§

These principles are clearly illustrated by United

States v. Lisk, 522 F.2d 228 (7th Cir. 1977), cert.

denied, 423 U.S. 1078 (1976), subsequent opinion,

559 F.2d 1108 (7th Cir. 1977). In Lisk, the defend-

ant gave an explosive bomb to one Hunt for Hunt to

keep in the trunk of his car until the defendant asked

for its return; the defendant had no interest in Hunt’s

car but, according to a stipulation in the case, he

retained a proprietary interest in the bomb. Approxi-

mately five days thereafter, the police officers searched

the automobile and seized the bomb from the trunk.

The government conceded that this search violated

Hunt’s Fourth Amendment rights, but it contended

that the defendant did not have “standing” to move

for suppression because his privacy was not invaded

by the unlawful search of Hunt’s car. The court of

appeals agreed, rejecting the defendant’s claim that

his proprietary interest in the seized bomb estab-

lished his “standing” to challenge the search. As

then-Judge Stevens explained (522 F.2d at 230-231;

footnotes omitted; emphasis in original) :

There is a difference between a search and a

seizure. A search involves an invasion of privacy;

claim that these receptacles were his or that he had a rea-

sonable expectation of privacy with respect to them, and

nothing in the record would lend credence to such a claim.

Moreover, we doubt that containers like a paper bag or a

cardboard box, particularly where used only to conceal the

fruits of criminal activity, can generally support a reasonable

expectation of privacy. See, e.g., United States v. Block, 590

F.2d 535, 541 n.8 (4th Cir. 1978) ; United States v. Neumann,

585 F.2d 355, 360-361 (8th Cir. 1978); see also Arkansas v.

Sanders, No. 77-1497 (June 20, 1979), slip op. 9 n.9, 11-12 &

n.13.

a

’

'

9

a seizure is a taking of property. The owner of a

chattel which has been seized certainly has stand-

ing to seek its return. It does not necessarily fol-

low that he may also object to its use as evi-

dence * * *, * * * Hunt’s car was searched and

defendant’s property was seized. The invasion

of Hunt’s privacy was a violation of Hunt’s

Fourth Amendment rights, but this violation is

clearly not available to the defendant as a basis

for suppressing evidence acquired thereby. De-

fendant must rely on the seizure of the firearm

as a violation of his own Fourth Amendment

rights. * * * In sum, defendant has standing to

object to the seizure, but no standing to object

to the search. Having put the search to one side,

he has not demonstrated that the evidence should

be suppressed on the ground that his Fourth

Amendment rights were violated by the seizure.'7!

Lisk represents the leading decision in this area

and, in addition to the Seventh Circuit, the other

courts of appeals to have considered the question have

concluded with near uniformity that a defendant’s

7 The court in Lisk recognized (522 F.2d at 230 & n.5) that,

with respect to the defendant’s proprietary interest in the

seized bomb, the case was the same as if Hunt had consented

to the search of the car or the bomb had been found in plain

view. See also United States v. Mazzelli, supra, 595 F.2d at

1160 (Bonsal, J., dissenting) (defendant’s Fourth Amend-

ment rights based on items seized are no different than if a

warrant had been obtained to search the third-party’s prem-

ises or property) ; United States v. Galante, 547 F.2d 733, 739

n.11 (2d Cir. 1976), cert. denied, 431 U.S. 969 (1977). Com-

pare Mancusi v. DeForte, 392 U.S. 364, 369-370 (1968) (de-

fendant’s reasonable expectation of privacy in his office was

not dispelled by the fact that others could have given consent

to search but did not do so).

10

possessory interest in an item seized does not entitle

him to object to the search of a third-party’s premises

or property in which he had no reasonable expectation

of privacy. See United States v. Galante, 547 F.2d

733, 739 & n.11 (2d Cir. 1976), cert. denied, 431

U.S. 969 (1977); United States v. Lopez, 420 F.2d

313, 316-317 (2d Cir. 1969) (Friendly, J.); United

States v. Crowell, 586 F.2d 1020, 1026 (4th Cir.

1978), cert. denied, 440 U.S. 959 (1979); United

States v. Jackson, 585 F.2d 658, 656-657 (4th Cir.

1978); United States v. Evans, 572 F.2d 455, 486

(5th Cir.), cert. denied, 439 U.S. 870 (1978) ; United

States v. Archbold-Newball, 554 F.2d 665, 677-678

(5th Cir.), cert. denied, 434 U.S. 1000 (1977);

United States v. Smith, 550 F.2d 277, 283 (5th Cir.),

cert. denied, 484 U.S. 841 (1977); United States v.

Hunt, 505 F.2d 931, 940-941 (5th Cir. 1974), cert.

denied, 421 U.S. 975 (1975) ; United States v. Hunter,

550 F.2d 1066, 1074-1075 (6th Cir. 1977); United

States v. Wilson, 536 F.2d 883, 885 (9th Cir.), cert.

denied, 429 U.S. 982 (1976); but see United States

v. Mazzelli, 595 F.2d 1157, 1159 & n.1, 1160 (9th

Cir. 1979), petition for cert. pending sub nom. United

States v. Conway, No. 79-393 (filed Sept. 7, 1979).

See also United States v. House, 524 F.2d 1035, 1042

(3d Cir. 1975) (owner has “standing” to object to

the seizure of his property from the temporary pos-

session of a third party).* Commentators have also

8A similar analysis is reflected in “the present well-

settled rule that a guest in a hotel or motel loses his reason-

able expectation of privacy and consequently any standing

to object to ‘an unauthorized search of the premises’ after his

11

reached a like conclusion. See, e.g., Knox, Some

Thoughts on the Scope of the Fourth Amendment and

Standing to Challenge Searches and Seizures, 40 Mo.

L. Rev. 1, 50 (1975) (“A possessory interest in the

item seized should give rise to fourth amendment

protection and should entitle an individual to challenge

the reasonableness of the seizure. * * * A mere pos-

sessory interest in the item seized would not, however,

confer standing to challenge the search which led to

the discovery of that item.”) (emphasis in original) ;

3 W. LaFave, Search and Seizure: A Treatise on the

Fourth Amendment § 11.8, at 563 (1978).°

rental period has terminated * * * even though he may have

left property in the hotel room.” United States v. Jackson,

supra, 585 F.2d at 658. See, e.g., United States v. Akin, 562

F.2d 459, 463-464 (7th Cir. 1977), cert. denied, 485 U.S. 933

(1978) ; United States v. Parizo, 514 F.2d 52 (2d Cir. 1975) ;

United States v. Croft, 429 F.2d 884 (10th Cir. 1970).

®* Of course, if items are seized from an area in which the

defendant has a legitimate expectation of privacy, such as his

house, his person, or his luggage, he would be entitled to seek

suppression on that basis regardless of any interest in the

seized property. See Arkansas v. Sanders, No. 77-1497 (June

20, 1979), slip op. 2-3, 8 n.8; Alderman v. United States,

supra, 394 U.S. at 177 & n.10; Mancusi v. DeForte, 392 U.S.

364, 367 n.4 (1968). Moreover, a defendant may have a rea-

sonable expectation of privacy in an area even though he does

not hold title to that area or otherwise enjoy a common-law

property interest. See Mancusi v. DeForte, supra; Jones V.

United States, supra; United States v. Jeffers, 342 U.S. 48

(1951) ; see also Rakas V. Illinois, supra, 489 U.S. at 148-144 &

n.12. Thus, it is possible that one who temporarily entrusts

his possessions to the custody of another, which possessions

are then seized during an unlawful search of the custodian’s

premises, may be entitled to challenge the legality of the

search as well as of the seizure. This would turn not on the

12

Notwithstanding the assertions of Salvucci (Br.

6-7) and of petitioner in Rawlings v. Kentucky, supra

(Br. 46-49), the decisions of this Court do not compel

a different result. In Rakas v. Illinois, supra, the

Court acknowledged (4389 U.S. at 142 & n.11) the

possibility that a person who otherwise would not

have a reasonable expectation of privacy in a given

area might in fact have such an expectation if his own

property were located and seized there. In our view,

this portion of the opinion is merely an application

of the more general principle, also recognized in

Rakas (489 U.S. at 143-144 & n.12), that a persun’s

owner’s property interest in his belongings, however, but

rather on any privacy interest in the searched area that he

may have acquired incident to the transfer of his property.

See Knox, supra, 40 Mo. L. Rev. at 50-52; 3 W. LaFave, supra,

§ 11.3, at 556-562; but see Gutterman, “A Person Aggrieved”’:

Standing to Suppress Illegally Seized Evidence in Transition,

23 Emory L.J. 111, 118-120, 125-126 (1974). In our view, an

analysis of that privacy interest would look to such factors as

the relationship between the two parties; the existence of a

common understanding regarding the nature of the particu-

lar item, the specific location in which it is to be kept, and the

need for it to be securely or privately stored; and the au-

thority of the bailee to use the item while it is in his custody.

Respondents have never claimed that they had any expecta-

tion of privacy in the apartment of Zackular’s mother, or

even that they had her permission to store things there.

Petitioner in Rawlings v. Kentucky, supra, does assert (Br.

57-62) that he had a reasonable expectation of privacy in

Vanessa Cox’s purse in which his narcotics were found.

However, we doubt that such an expectation is demonstrated

where, as in that case, the seized items consisted of contra-

band narcotics that the defendant had placed in his com-

panion’s purse, over her objection, only a few minutes before

the police arrived (see Kentucky Br. 3, 26-27).

13

use of an area may be indicative of his expectation of

privacy. See also 489 U.S. at 153 (Powell, J., con-

curring). Especially since the record did not estab-

lish that the defendants in Rakas owned the rifle and

shells found by the police (see 439 U.S. at 129, 130-

131 & n.1, 148), we do not read the Court’s opinion

to suggest in any way that a proprietary or possessory

interest in the items seized would, without more, en-

title a defendant to contest the underlying search.

See also 439 U.S. at 164 n.14 (White, J., dissent-

ing).*°

Nor is United States v. Jeffers, 342 U.S. 48 (1951),

to the contrary. The defendant in Jeffers was con-

10 The Court in Rakas also refused to remand for further

factual proceedings on the question of ownership of the seized

rifle and shells, since it found that the defendants had failed

to assert their claim of ownership at the suppression hearing

(489 U.S. at 180-131 n.1). We do not believe, however, that

the Court’s discussion in this regard can properly be taken

to establish that such an interest, if timely raised and ade-

quately demonstrated, would have sufficed to allow the de-

fendants to challenge the search. Similarly, the issue raised

here was not presented in Brown v. United States, supra;

Combs v. United States, 408 U.S. 224 (1972); Mancusi v.

DeForte, supra; or Simmons v. United States, supra, and we

do not construe the Court’s passing references on which

Salvucci and Rawlings rely to signal a considered disposition

of the matter. Finally, in Jones v. United States, supra, the

Court, in accordance with the submissions of both parties

(Pet. Br. 18, 32-38; U.S. Br. 18, 18-19, 24-25), appears to have

assumed but not decided that a defendant would have “stand-

ing” to suppress if he alleged that he owned or possessed the

seized property (362 U.S. at 261-263), an interest that the

defendant in Jones did not assert (362 U.S. at 259). See also

United States v. Lisk, supra, 522 F.2d at 233 n.5.

14

victed of violating the narcotics laws on the basis of

drugs that were found during a warrantless search

of a hotel room rented by his aunts. The search oc-

curred while neither the defendant nor his aunts were

present. The defendant had been given a key to the

room and was permitted to use it at will, and he had

in fact often entered the room for various purposes.

In addition, the defendant claimed ownership of the

narcotics that were seized. On that record, the Court

held that the defendant had “standing” to contest

the validity of the search. We do not read Jeffers to

stand for the proposition that an interest in the

property seized is, without more, a sufficient basis to

seek the suppression of evidence. Rather, “[s]tand-

ing in Jeffers was based on Jeffers’ possessory interest

in both the premises searched and the property

seized.” Rakas v. Illinois, supra, 439 U.S. at 136

(emphasis added). While the Court has construed

Jeffers to establish that “one with a possessory inter-

est in [but not title to] the premises might have

standing” (Mancusi v. DeForte, supra, 392 U.S. at

368), it has “never cited Jeffers as adopting * * *

[the] theory [that the defendant’s interest in the

seized property is itself sufficient to confer “standing”

to challenge the search], and we are persuaded that it

is not a correct reading of the Jeffers opinion itself.”

United States v. Lisk, supra, 522 F.2d at 233 (foot-

note omitted). The lower federal courts have read

Jeffers, as we do, to rest on the theory “that the de-

fendant’s interest in the searched room rather than

in the seized property allowed him to challenge the

15

search.” United States v. Lisk, supra, 522 F.2d at

232 (footnote omitted). See also United States v.

Jackson, supra, 585 F.2d at 657 n.5; United States v.

Lopez, supra, 420 F.2d at 317. Thus, we do not be-

lieve that Jeffers should be interpreted to hold that a

defendant’s interest in seized property establishes his

“standing” to contest the underlying search. In any

event, as discussed above (pages 5-7, supra), more

recent decisions of this Court cast substantial doubt

on the continued validity of a rule that allows a

defendant to challenge a search solely because of his

interest in the items seized.

B. A Defendant’s Possessory Interest In Contraband

Is Totally Illegitimate And Does Not Give Rise To

Any Rights Under The Fourth Amendment

Regardless of whether a defendant’s interest in the

item seized is generally sufficient to entitle him to

contest the validity of the underlying search, we sub-

mit that an asserted possessory interest in contraband

cannot serve as the basis of a Fourth Amendment

claim. In our view, such an illicit interest is a wholly

inadequate basis on which to rest a challenge to

either a search or a seizure." |

11 Of course, if contraband is seized from a place in which

the defendant has a legitimate expectation of privacy that

exists independently of the placement of the contraband, then

he may seek suppression on that basis despite the illegitimacy

of his interest in the contraband itself. See, e.g., Arkansas Vv.

Sanders, No. 77-1497 (June 20, 1979), slip op. 2-3, & n.8;

Warden Vv. Hayden, supra, 387 U.S. at 305-306; Jones v.

United States, supra; United States v. Jeffers, supra. See

also note 9, supra.

16

This Court has emphasized that the Fourth Amend-

ment’s protection against unreasonable searches ex-

tends only to violations of legitimate expectations of

privacy. See, e.g., Rakas v. Illinois, supra, 439 U.S.

at 141 n.9, 143-144 n.12; Brown v. United States,

supra, 411 U.S. at 230 n.4; Jones v. United States,

supra, 362 U.S. at 267; see also U.S. Br. 9-10.

“[H]owever, a ‘legitimate’ expectation of privacy by

definition means more than a subjective expectation

of not being discovered. * * * [It must be] ‘one that

society is prepared to recognize as “reasonable.” ’ ”

Rakas y. Illinois, supra, 439 U.S. at 143-144 n.12,

quoting Katz v. United States, supra, 389 U.S. at 361

(Harlan, J., concurring). For this reason, as the

Court noted in Jones, one whose interest is “wrong-

ful * * * cannot invoke the privacy of the premises

searched” (362 U.S. at 267). Thus, a person present

in a stolen automobile at the time of a search has no

legitimate expectation of privacy with respect to that

automobile and therefore cannot object to the legality

of the search. See Rakas v. Illinois, supra, 439 U.S.

at 141 n.9. See also United States v. McCambridge,

551 F.2d 865, 870 n.2 (1st Cir. 1977) (no “standing”

to challenge search of stolen suitcase).

Likewise, the Fourth Amendment does not recognize

a legitimate possessory interest in contraband items

that, by definiticn, a person may not lawfully possess,

and one who is in wrongful possession cannot on that

ground maintain a Fourth Amendment challenge to a

search or a seizure involving such property. For

example, an asserted interest in stolen goods is, as the

17

Court observed in Brown vy. United States, “totally

illegitimate” (411 U.S. at 230 n.4) and hence does

not give rise to any rights under the Fourth Amend-

ment. The courts of appeals have also held that a

person has no legitimate interest in stolen property.

See United States v. McCambridge, 551 F.2d 865, 870

n.2 (1st Cir. 1977); United States v. Galante, 547

F.2d 733, 739-740 (2d Cir. 1976), cert. denied, 431

U.S. 969 (1977); United States v. Sacco, 486 F.2d

780, 784 (2d Cir.), cert. denied, 404 U.S. 834 (1971);

United States v. Bozza, 365 F.2d 206, 223 (2d Cir.

1966) (Friendly, J.). See also Gutterman, supra, 23

Emory L. J. at 118-120; Trager & Lobenfeld, The

Law of Standing Under the Fourth Amendment, 41

Brooklyn L. Rev. 421, 438-444 (1975). The courts

of appeals have similarly recognized that possession

of contraband narcotics cannot support a legitimate

Fourth Amendment interest. As the court observed

in United States v. Moore, 562 F.2d 106, 111 (1st

Cir. 1977), cert. denied, 435 U.S. 926 (1978), “the

possessors of such [contraband] articles have no

legitimate expectation of privacy in substances which

they have no right to possess at all. The narcotics

peddler * * * has no privacy interest in the sub-

stance * * *.” See also, e.g., United States v. Bruneau,

594 F.2d 1190, 1194 n.6 (8th Cir.), cert. denied, No.

78-6592 (Oct. 1, 1979) (“courts have consistently

held that * * * no one has [a legitimate privacy in-

terest in contraband]”) ; United States v. Botero, 589

F.2d 430 (9th Cir. 1978), cert. denied, 441 U.S. 944

(1979) ; United States v. Washington, 586 F.2d 1147,

18

1154 (7th Cir. 1978); United States v. Dubrofsky,

581 F.2d 208, 211 (9th Cir. 1978); United States v.

Pringle, 576 F.2d 1114, 1119 (5th Cir. 1978) ; United

States v. Emery, 541 F.2d 887, 890 (1st Cir. 1976).”

And we suggest that the same analysis is applicable

to other forms of contraband, such as an unlawful

firearm or a firearm unlawfully possessed by a previ-

ously convicted felon.

Where the law absolutely forbids possession of

a particular item, it is difficult to accept the

proposition that a defendant has a fourth amend-

ment interest in that item as opposed to, for

example, the area in which it is located, e.g., a

house, apartment, office, or car. Surely, the only

assumption that a thief or narcotics dealer can

reasonably make is that law enforcement officials

will seek to deprive him of possession of the con-

traband. Seizure can hardly be unanticipated.

If the contraband is seized while hidden in an

open field or in a confederate’s home, neither the

dealer nor the thief can claim a violation of his

privacy. As Judge Friendly has rightly re-

12 We recognize that United States v. Jeffers, supra, can be

read to allow a suppression claim to be based on the defend-

ant’s interest in the seized goods even though they are con-

traband. As discussed above (pages 13-15, supra), how-

ever, we think Jeffers is best understood in terms of the de-

fendant’s legitimate expectation of privacy in the hotel room

that was searched, an expectation that is not lost simply

because the defendant used the room in part as a storage

area for his narcotics. Moreover, insofar as Jeffers rested on

the defendant’s interest in the drugs that were seized, we

suggest that it is inconsistent with subsequent decisions of

this Court and therefore can no longer be regarded as

controlling.

19

marked, the values sought to be protected by the

fourth amendment are not “served by holding

that a thief who has left evidence of his crime

on the premises of a confederate is subrogated

to the latter’s right to cumplain of a search and

seizure * * *,”

Trager & Lobenfeld, supra, 41 Brooklyn u. Rev. at

441, quoting United States v. Bozza, supra, 365 F.2d

at 223."*

8 Respondents Salvucci (Br. 9) and Zackular (Br. 7 & n.4)

argue that the effect of this argument and of the elimination

of the “automatic standing” rule would be to encourage illegal

police action and erode the deterrent function of the exclu-

sionary rule. These assertions are unfounded. The “standing

rule is premised on a recognition that the need for deterrence

and hence the rationale for excluding the evidence are strong-

est where the Government’s unlawful conduct would result in

the imposition of a criminal sanction on the victim of the

search.” United States v. Calandra, 414 U.S. 338, 348 (1974).

As the Court explained in Alderman v. United States, supra,

394 U.S. at 174-175:

The deterrent values of preventing the incrimination of

those whose rights the police have violated have been

considered sufficient to justify the suppression of pro-

bative evidence even though the case against the de-

fendant is weakened or destroyed. We adhere to that

judgment. But we are not convinced that the additional

benefits of extending the exclusionary rule to other de-

fendants would justify further encroachment upon the

public interest in prosecuting those accused of crime and

having them acquitted or convicted on the basis of all the

evidence which exposes the truth.

See also Rakas v. Illinois, supra, 439 U.S. at 187; United

States v. Ceccolini, 435 U.S. 268, 275-276 (1978); Stone v.

Powell, 428 U.S. 465, 488-489 (1976) ; United States v. Janis,

428 U.S. 4338, 447 n.16 (1976) ; United States v. Calandra,

supra, 414 U.S. at 350-351. Thus, with the single exception

20

In the instant case, the seized items consisted of

stolen mail—items to which respondents had no right-

ful claim. Accordingly, irrespective of whether a

lawful interest in seized property would suffice to

permit a challenge to the antecedent search that un-

covers the property, we submit that respondents’ illicit

interest in the stolen mail is inadequate to entitle

them to seek suppression of that evidence.“

of “automatic standing,” the Court has consistently adhered

to the principle that “only defendants whose Fourth Amend-

ment rights have been violated [are permitted] to benefit from

the [exclusionary] rule’s protections.” Rakas v. Illinois,

supra, 439 U.S. at 184 (footnote omitted). See id. at 184 n.3;

Zurcher Vv. Stanford Daily, 436 U.S. 547, 562-563 n.9 (1978) ;

United States v. Miller, 425 U.S. 485, 444-445 (1976) ; Brown

v. United States, supra, 411 U.S. at 230; Alderman v. United

States, supra, 394 U.S. at 171-172, 174. For the same reasons

that the Court has previously declined to extend “standing”

to those, including the target of the search (Rakas Vv. Illinois,

supra, 439 U.S. at 182-138; id. at 156 n.1 (White, J., dissent-

ing) ), whose Fourth Amendment rights were not violated, the

deterrent objectives of the exclusionary rule do not require

that the “automatic standing” doctrine be retained or that de-

fendants be permitted to challenge the validity of a search

solely on the basis of their possessory interest in the contra-

band seized. Rather, adequate deterrence results from allow-

ing a defendant to seek suppression based on an unreason-

able search only if his legitimate expectation of privacy was

thereby infringed.

14 We also note that the common-law actions of “[t] respass,

replevin, and the other means of redress for persons aggrieved

by searches and seizures” were not available with respect to

contraband, which “at common law could be seized with

impunity.” Warden v. Hayden, supra, 387 U.S. at 303-304,

305-306. See also W. Prosser, The Law of Torts 78 n.62, 94

(4th ed. 1971) (a thief without colorable claim of right to

property cannot recover in an action for trespass or con-

version).

21

II, EVEN IF A DEFENDANT IS ENTITLED TO CHAL-

LENGE A SEARCH SOLELY ON THE BASIS OF

HIS POSSESSORY INTEREST IN THE CONTRA-

BAND SEIZED, THE “AUTOMATIC STANDING”

RULE SHOULD BE ABOLISHED BECAUSE IT

ALLOWS EVIDENCE TO BE SUPPRESSED AT

THE BEHEST OF DEFENDANTS WHOSE FOURTH

AMENDMENT RIGHTS HAVE NOT BEEN VIO-

LATED

Respondent Salvucci argues (Br. 11-14) that, in

the event he prevails on the foregoing issues, the

“automatic standing” rule should be retained in order

to promote the efficient administration of justice and

eliminate unnecessary suppression hearings. Salvucci

bases his argument on the proposition that the posses-

sory offense with which a defendant i. charged serves,

without more, to establish the requisite possessory

interest in the seized contraband to enable him to con-

test the underlying search. In essence, he contends

that the charging of a possessory offense ipso facto

constitutes an allegation by the government of the

existence of facts that would afford “actual stand-

ing,” and for that reason there is no point in abolish-

ing the “automatic standing” rule.” However, as we

now show, this argument is misconceived; even as-

suming that a possessory interest in the property

seized will ordinarily give rise to Fourth Amend-

15 Since respondents have failed on the present record to

adduce proof that they had a sufficient possessory interest in

the stolen mail to confer “actual standing,” they can succeed

here in gaining affirmance of the court of appeals’ judgment

only if the Gourt accepts Salvucci’s contention that the charg-

ing of a possessory offense necessarily demonstrates the de-

fendant’s possessory interest for Fourth Amendment purposes.

22

ment rights in the place that has been searched, there

remains a significant category of cases in which the

requisite Fourth Amendment interest would not ex-

ist, yet the defendant could still properly be charged

with a “possessory” offense. Accordingly, the “auto-

matic standing” doctrine should be overturned even

if the Court concludes that there can be a Fourth

Amendment interest in seized contraband that suffices

by itself to enable the defendant to challenge the

legality of a search.”*

16 Salvucci’s argument is essentially the same as the Jones

“prosecutorial self-contradiction” argument that we discussed

in our opening brief (U.S. Br. 23-28). For the reasons there

stated, we submit that a defendant can fail to have the nec-

essary possessory interest under the Fourth Amendment for

“actual standing” but still be guilty of a possessory crime as

a constructive possessor or an aider and abettor. See also

United States v. Rios, 611 F.2d 1335, 1845 (10th Cir. 1979)

(there exists “automatic standing” but not “actual standing”

where defendant was charged with aiding and abetting the

commission of a possessory offense). In addition, a defendant

whose co-conspirators commit a possessory offense can be

convicted of that offense under the doctrine of Pinkerton v.

United States, 328 U.S. 640 (1946), but nonetheless have no

possessory right that is infringed by the unlawful search of

his co-conspirators’ premises or property. See Alderman v.

United States, supra, 394 U.S. at 171-172 (defendant can-

not assert Fourth Amendment rights of co-conspirator) ;

United States v. Hunt, supra, 505 F.2d at 942 (“There is in

fact nothing contradictory about the United States’ argu-

ment in this case; a principal-agent relationship sufficient to

imply cuipability may certainly fall short of conferring stand-

ing for Fourth Amendment purposes.”). Where a defendant

does not have “actual standing,” it is not contradictory for

the government to charge him with a possessory offense and

at the same time contend that he cannot challenge the search

that produced the evidence against him.

23

We think it can scarcely be doubted that a defend-

ant may commit a possessory offense and yet not have

the kind of possessory interest required by even the

most expansive Fourth Amendment standard. For

instance, the head of a large narcotics operation may

exercise dominion and control over the illegal drugs

and thus be in constructive possession sufficient to

violate the criminal code; at the same time, however,

if he never holds the drugs or becomes involved in

their storage and concealment, he is hardly in a posi-

tion to raise a Fourth Amendment challenge to the

search of the premises or property of one of his

subordinates that uncovers the narcotics. Similarly,

if this same defendant were held vicariously liable

for the possessory offenses of his co-conspirators un-

der the theory of Pinkerton v. United States, 328 U.S.

640 (1946), he would still not have a Fourth Amend-

ment right that would be infringed by the unlawful

search of another’s premises or property. Nor would

his position under the Fourth Amendment be en-

hanced in any way if he were convicted and punished

as a principal pursuant to 18 U.S.C. 2 for aiding and

abetting the unlawful possession of contraband drugs.

In all of these cases, the “automatic standing” rule

would enable a defendant to seek the suppression of

reliable and probative evidence even though the search

he challenges did not even remotely affect his Fourth

Amendment rights.

The fallacy of Salvucci’s argument is clearly re-

vealed by United States v. Hunt, 505 F.2d 931 (5th

Cir. 1974), cert. denied, 421 U.S. 975 (1975). The

24

defendants in that case were charged with willfully,

knowingly and unlawfully intercepting and endeavor-

ing to intercept wire communications, in violation of

18 U.S.C. 2511(1) (a) and (2). Among the evidence

introduced by the government were the tape recorders

and recordings that were paid for by the defendants

and seized from confederates acting under their direc-

tion. Finding that the “[d]efendants never saw any

of the equipment, either during or after the opera-

tion” (505 F.2d at 940), the court of appeals held

that the defendants’ proprietary interest in the seized

recorders and tapes did not confer standing on them

to challenge the search (505 F.2d at 940-941):

Whatever title defendants may possess in the

disputed evidence, we cannot help but reflect that

this discussion of master and servant law and

legal title has taken us very far from the sub-

stance of Fourth Amendment rights. As we have

indicated above, the constitutional right of pro-

tection against unreasonable searches and seiz-

ures attaches only when an individual’s reason-

able expectation of privacy is shattered by illegal

Government intrusion. Whatever minimal pos-

sessory interest defendants may have in the

seized equipment, we have been unable to discern

the slightest privacy interest that defendants

could reasonably assert in objects which they have

never seen and of whose particular existence they

were unaware until after the disputed search and

seizure. If Jones, Katz, Alderman and Brown

teach us anything, they indicate that common

law notions about proprietary relations offer no

per se rules in search and seizure cases; a naked

ee

i

25

assertion of possessory interest may be indicative

but cannot be dispositive of the existence of a

cognizable privacy interest in the place or thing

searched.

In light of the court’s analysis, we strongly doubt that

the defendants in Hunt would have fared any better

if they had been charged—under a theory of construc-

tive possession, of Pinkerton liability, or of aiding

and abetting—with a possessory offense such as know-

ing possession of an unlawful intercepting device, in

violation of 18 U.S.C. 2512(1)(b). See also United

States v. Archbold-Newball, 554 F.2d 665 (5th Cir.),

cert. denied, 484 U.S. 1000 (1977) (based on Hunt,

defendants claiming a proprietary interest in contra-

band seized during search of co-defendants’ room had

no standing to challenge the search).

As illustrated by these examples, we believe that

the “automatic standing” rule sweeps too broadly to

be a sound and acceptable principle. Thus, at the

least, the Court should reject the “automatic stand-

ing” rule and require defendants to establish the re-

quisite Fourth Amendment interest in accordance

with the Court’s disposition of the preceding issues.”

17 We recognize that in some situations the defendant’s in-

terest will be sufficiently evident that no formal hearing will

be necessary. Where this is not the case, however, the de-

fendant must demonstrate by adequate proof that his Fourth

Amendment rights were violated. See Rakas v. Illinois, supra,

439 U.S. at 130-131 n.1. Contrary to the assertion (Br. 55-

56) of petitioner in Rawlings v. Kentucky, supra, we see no

reason to assume that suppression hearings would generally

become more extensive than at present or “be expanded in

26

CONCLUSION

For the foregoing reasons, and for the reasons

stated in our opening brief, the judgment of the court

of appeals should be reversed.

Respectfully submitted.

WADE H. McCREE, Jr.

Solicitor General

MARCH 1980

many instances into a miniature replica of the trial on the

merits” under the position we advocate here. In the event the

“automatic standing” rule is maintained, as Rawlings urges, a

full suppression hearing would be required in every case in-

volving a possessory offense in order to determine the lawful-

ness of the challenged search. It seems most unlikely that a

significant incremental burden would be imposed if those hear-

ings also included the issue whether the defendant is entitled

to seek the suppression of evidence; to the extent that particu-

lar difficulties might arise in individual cases, the district court

has authority to defer disposition of the suppression motion

until after the trial and verdict (see Fed. R. Crim. P. 12(e) ).

Indeed, the position we advance might well serve to enhance

judicial economy by eliminating the need for plenary hearings

on the legality of police conduct in cases where the defendant

currently comes within the “automatic standing” rule but it

can be readily determined that, under our standard, he has

no right to raise a Fourth Amendment claim.

* U. S. GOVERNMENT PRINTING OFFICE; 1980 316150 259