11.4Standing¹ Generally (Expectation of Privacy)

“The concept of standing in Fourth Amendment cases can be a useful shorthand for capturing the idea that a person must have a cognizable Fourth Amendment interest in the place searched before seeking relief for an unconstitutional search; but it should not be confused with Article III standing, which is jurisdictional and must be assessed before reaching the merits.” Byrd v United States, 584 US ___, ___ (2018) (stating that Fourth Amendment standing “need not be addressed before addressing other aspects of the merits of a Fourth Amendment claim; accordingly, a court is not required to assess a defendant’s reasonable expectation of privacy before addressing whether there was probable cause for the search if the probable cause argument has been preserved).

A defendant may claim the benefits of the exclusionary rule only if his or her own Fourth Amendment rights have in fact been violated; there is no “‘automatic standing.’” United States v Salvucci, 448 US 83, 85 (1980). A defendant must demonstrate that he or she personally had an expectation of privacy in the object of the search or seizure, and that the expectation is one that society recognizes as reasonable. People v Smith (Lee), 420 Mich 1, 28 (1984). “[T]he central legal question [is] whether, under Fourth Amendment jurisprudence, [the] defendant could assert a privacy right under the circumstances.” People v Antwine, 293 Mich App 192, 195 n 1 (2011); see also Rakas v Illinois, 439 US 128, 138-139 (1978) (noting that although examining the issue purely as one of standing would produce the same results, “the better analysis forth-rightly focuses on the extent of a particular defendant’s rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing”). A defendant attacking the propriety of a search or seizure has the burden of establishing that his or her reasonable and personal expectation of privacy was infringed upon. People v Nash, 418 Mich 196, 204-205 (1983) (opinion by Brickley, J.); People v Lombardo, 216 Mich App 500, 505 (1996). In deciding the issue, the court should consider the totality of the circumstances. People v Perlos, 436 Mich 305, 317-318 (1990).

Note: In recent years, the United States Supreme Court has emphasized that the “reasonable expectation of privacy” test is not applicable in the context of physical intrusions onto constitutionally protected property. See United States v Jones, 565 US 400, 407-408 (2012) (noting that Justice Harlan’s concept of “reasonable expectation of privacy” as discussed in Katz v United States, 389 US 347, 360-361 (1967) (Harlan, J., concurring), and its progeny “did not narrow the Fourth Amendment’s scope” or otherwise “erode the principle ‘that, when the Government . . . engage[s] in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment,’” irrespective of any inquiry into a person’s reasonable expectation of privacy) (citation omitted; emphasis added); Florida v Jardines, 569 US 1, 11 (2013) (noting that “[t]he Katz reasonable-expectations test ‘has been added to, not substituted for,’ the traditional property-based understanding of the Fourth Amendment, and so is unnecessary to consider when the government gains evidence by physically intruding on constitutionally protected areas”) (quoting Jones, 565 US at 409).

“‘Factors relevant to the determination of standing include ownership, possession and/or control of the area searched or item seized; historical use of the property or item; ability to regulate access; the totality of the circumstances surrounding the search; the existence or nonexistence of a subjective anticipation of privacy; and the objective reasonableness of the expectation of privacy considering the specific facts of the case.’” People v Brown, 279 Mich App 116, 130-131 (2008) (quoting People v Powell, 235 Mich App 557, 563 (1999), and holding that the defendant did not have standing to challenge the warrantless search of a computer he did not own but to which he was allowed access because he exercised no control over others’ access to the computer and he did not own the residence in which the computer was located) (additional quotation marks omitted).

“The Fourth Amendment’s prohibition on unreasonable searches and seizures is applicable to commercial premises, as well as to private homes.” People v Vaughn, 344 Mich App 539, 551 (2022) (quotation marks and citation omitted). Indeed, “a business owner’s expectation of privacy exists not only with respect to traditional police searches conducted for the gathering of criminal evidence but also with respect to administrative inspections designed to enforce regulatory statutes.” Id. at 551 (quotation marks and citation omitted). “An expectation of privacy in commercial premises, however, is different from, and indeed less than, a similar expectation in an individual’s home.” Id. at 551 (citation omitted).

“[C]itizens maintain a reasonable expectation of privacy in their cell-phone data and this reasonable expectation of privacy does not altogether dissipate merely because a phone is seized during a lawful arrest.” People v Hughes, 506 Mich 512, 529 (2020). “The authority to seize an item does not necessarily eliminate one’s expectation of privacy in that item and therefore allow the police to search that item without limitation.” Id. at 530. Additionally, “the seizure and search of cell-phone data pursuant to a warrant [does not] extinguish[] that otherwise reasonable expectation of privacy in the entirety of that seized data.” Id. at 529. “[A] warrant authorizing the police to seize and search cell-phone data allows officers to examine the seized data only to the extent reasonably consistent with the warrant.” Id. (though “it may [be] reasonable for officers to seize all of [a] defendant’s cell-phone data pursuant to [a] warrant to prevent the destruction of evidence and to isolate incriminating material from nonincriminating material”).

“The Fourth Amendment specifically guarantees the right of the people to be secure in their persons, houses, papers, and effects[.]” People v Mead, 503 Mich 205, 214 (2019) (cleaned up). Accordingly, where the record establishes that a defendant asserted a clear possessory interest in a personal effect, he or she may have standing to challenge the search. (defendant-passenger could challenge the warrantless search of his backpack that occurred subsequent to a valid stop because “although [he] had no . . . legitimate expectation of privacy in the interior of [the] vehicle, he had a legitimate expectation of privacy in his backpack,” which he “asserted a clear possessory interest in . . . by clutching it in his lap” prior to being ordered to exit the vehicle) Id. at 214, 215.

A person who abandons property is entirely deprived of the ability to contest a search and seizure of that property. People v Zahn, 234 Mich App 438, 448 (1999). The search or seizure of property that has been abandoned “is presumptively reasonable because the owner no longer has an expectation of privacy in the property that [the person] has abandoned.” People v Rasmussen, 191 Mich App 721, 725 (1991). “While abandonment in the property law context looks to whether the person relinquished . . . ownership interest in the property, abandonment under the Fourth Amendment inquires whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished . . . interest in the property in question so that [the person] could no longer retain a reasonable expectation of privacy [in it].’” People v Henry, 477 Mich 1123 (2007) (cleaned up). The defendant bears the burden of showing that the property searched was not abandoned. Rasmussen, 191 Mich App at 725. Whether an owner has abandoned property is an ultimate fact that turns on a combination of act and intent. People v Shabaz, 424 Mich 42, 65-66 (1985).