Passenger Standing After United States v. Jones

This will probably be the last of my overly frequent posts about United States v. Jones, 132 S. Ct. 945 (2012) (for a while at least), since I will be finished with arguing a similar case by the end of the day tomorrow.  The final aspect of Jones that I would like to mention is one that I will probably pursue in a more formal matter since a quick perusal of articles on Jones and the Fourth Amendment do not seem to touch much on this.  That issue is: the state of vehicle passenger standing to challenge Jones-based searches.

Standing to challenge searches is already in a funny state when it comes to vehicles because of the Court's holding in Rakas v. Illinois, 439 U.S. 128 (1978) where the Court held that a passenger in a vehicle had no standing to challenge a police search of a locked glove compartment and under the front seat of that vehicle. The Court held that the defendant, as passenger, failed to show a legitimate expectation of privacy in that vehicle.

The legitimate expectation of privacy that Fourth Amendment standing involves is different from reasonable expectations of privacy that dominate traditional determinations of whether a search exists in the first place.  For instance, in Minnesota v. Carter, 525 U.S. 83 (1998), the Court held that guests in a house who are not overnight guests do not have a legitimate expectation of privacy in that house, and therefore do not have standing to challenge a search of that house as a violation of their Fourth Amendment rights.  The guests in the house likely expected that police would not intrude on their activities, and society probably would have found this expectation reasonable, since they were inside of a friend's house with the blinds (mostly) shut.  Despite this, any expectation of privacy they had was not legitimate.

Jones seems to introduce an entirely new way of analyzing standing: a test of whether the defendant has a possessory interest in the place searched.  In cases where the defendant asserts that police action would have constituted trespass at common law, the action is a search under Jones.  It would seem to follow that the only person that would have standing to challenge the search would be the person whose possessory interest is violated by the trespass.  For instance, I would not be able to challenge a search of my friend's house, under Jones, since I do not have a possessory interest in that house.  While I may have a legitimate expectation of privacy under Carter, that goes beyond the property-based rule that Jones establishes.

Usually, this will not be a big deal, since the legitimate expectation of privacy test will often lead to standing in situations where there is no trespass on the defendant's possessory interests.  It will be a big deal, however, in situations like the one in Jones: GPS monitoring of vehicles.  Passengers of vehicles that are tracked by attached GPS devices will probably not be able to challenge this type of search under Jones because the passenger has no possessory interest in the monitored vehicle.  Additionally, the interior of the vehicle is not searched -- typically only the public movements of the vehicle are tracked -- meaning that the passenger would be hard-pressed to argue from the legitimate expectation of privacy direction.  Jones did not address standing issues, but it did note in a footnote that Jones was the exclusive driver of the vehicle, indicating that he had a possessory interest that would have given him standing had a standing challenge arisen.

Admittedly, this class of searches may be a narrow one, but it illustrates the interesting new dimension that Jones brings to Fourth Amendment standing.  While traditional standing analysis involving legitimate expectations of privacy may involve fuzzy tests, Jones may be a bit clearer since parties need only look to property law to see if any possessory interests in searched property exist.