What is the test for asserting a Fourth Amendment right to privacy in a search and seizure?

California, United States of America


The following excerpt is from Lance W., Matter of, 149 Cal.App.3d 838, 197 Cal.Rptr. 331 (Cal. App. 1983):

Under federal law, Fourth Amendment rights are personal and may be asserted only by those who have a personal and legitimate expectation of privacy in the place searched or the property seized. (United States v. Payner (1980) 447 U.S. 727, 731, 100 S.Ct. 2439, 2443, 65 L.Ed.2d 468; Rakas v. Illinois (1978) 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387.) A defendant therefore must establish that he personally has been the victim of an invasion of privacy. (United States v. Salvucci (1980) 448 U.S. 83, 86-95, 100 S.Ct. 2547, 2550-2554, 65 L.Ed.2d 619.) This requires of him more than a mere subjective expectation of privacy; his expectation must be "legitimate," i.e., "recognized and permitted by society." (Rakas v. Illinois, supra, 439 U.S. at pp. 134-144, 99 S.Ct. at pp. 425-431.) Absent such proof, a court relying on the federal rule may not exclude the challenged evidence. (United States v. Payner, supra, 447 U.S. at pp. 731, 737, 100 S.Ct. at pp. 2443-2447; see also Alderman v. United States (1969) 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176.)

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