Fundamentals of Procedural Law by Adam J. McKee

The concept of “standing” in the context of the Exclusionary Rule is one of the most crucial but often misunderstood aspects of criminal procedural law. Broadly speaking, “standing” refers to the legal right of a party to bring a lawsuit in court based on their stake in the outcome. In the context of the Exclusionary Rule, standing refers to a defendant’s right to challenge the legality of a search or seizure. But this right is not universal—there are specific criteria that must be met.

Parties with a Personal Expectation of Privacy

The central factor determining standing in the Exclusionary Rule context is the concept of a “reasonable expectation of privacy.” As defined by the Supreme Court in Katz v. United States (1967), a person can only challenge a search or seizure if they can demonstrate a personal expectation of privacy in the area searched or the items seized, and if society is ready to recognize that expectation as reasonable.

In Katz, the Supreme Court held that the Fourth Amendment protects people, not places. Hence, what a person knowingly exposes to the public is not subject to Fourth Amendment protection, but what a person seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

Ownership vs. Privacy Expectation

A critical clarification to note is that ownership does not automatically equate to a reasonable expectation of privacy. For example, in Rakas v. Illinois (1978), the Supreme Court held that mere passengers in a car did not have a legitimate expectation of privacy in the car’s areas or contents, and thus, they could not object to the legality of the car’s search. Similarly, an individual cannot challenge a search if they don’t have a reasonable expectation of privacy in the searched property, even if they own an item that was found and seized during that search.

Co-occupant’s Consent

In some instances, one person can consent to a search, impacting the standing of another individual. In Georgia v. Randolph (2006), the Supreme Court held that a physically present co-occupant’s stated refusal to permit entry renders warrantless entry and search unreasonable and invalid as to him, despite a co-occupant’s consent. This case recognizes the potential complexities of standing in situations involving multiple parties with varying levels of expectation of privacy.

In sum, the principle of standing, coupled with the idea of a reasonable expectation of privacy, creates a unique lens through which the application of the Exclusionary Rule is viewed. Understanding this principle is crucial in interpreting how, when, and to whom the Exclusionary Rule applies.


“Standing” in the context of the Exclusionary Rule is an essential aspect of criminal procedural law. It determines a defendant’s right to challenge the legality of a search or seizure based on their personal expectation of privacy. As per the Supreme Court’s decision in Katz v. United States, only those with a reasonable expectation of privacy can challenge a search or seizure. Importantly, the Court established that ownership does not necessarily equate to privacy expectation, as demonstrated in Rakas v. Illinois. Additionally, in situations involving multiple parties, the consent of a co-occupant can influence an individual’s standing, as noted in Georgia v. Randolph. Understanding “standing” provides a critical perspective on how the Exclusionary Rule is applied and to whom.


Modification History

File Created:  08/08/2018

Last Modified:  07/24/2023

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