Expectation of Privacy — Property or Possessory Interest Necessary

By Wisconsin State Public Defender

Feb 20, 2001

State v. Derrick Benton, 2001 WI App 81

For Benton: James Kachelski.

Issue: Whether the defendant can challenge seizure of property from an auto where he claimed no ownership or possessory interest in either the auto or the seized property.

Holding:

¶11 Although the trial court upheld the search of the car in which Benton was riding as one incident to either an arrest or as an inventory search, we need not reach those issues because, as the State points out, Benton lacked a reasonable expectation of privacy in the area of the car where the guns were found and may thus not challenge the search. SeeRakas v. Illinois, 439 U.S. 128 (1978).[2] The fundamental principle recognized by Rakas is that Fourth Amendment rights against unreasonable searches and seizures are rights personal to those whose Fourth Amendment interests have been invaded:

Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted. A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed. And since the exclusionary rule is an attempt to effectuate the guarantees of the Fourth Amendment, it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rule’s protections.

Id., 439 U.S. at 133–134 (internal citations omitted). Here, as in Rakas, Benton “asserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized,” id., 439 U.S. at 148; indeed, all of the car’s occupants, including the driver, disclaimed any possessory interest in the car or the guns. Moreover, as in Rakas, Benton has not demonstrated that he had “any legitimate expectation of privacy in the … area under the seat of the car” in which he was a mere passenger. Id., 439 U.S. at 148–149 (“passenger qua passenger simply would not normally have a legitimate expectation of privacy” in that area). Accordingly, Benton lacks standing to contest the search.