VA: While def didn’t have standing as to whole car, he did in the space immediately around him, relying on Jones GPS case

Defendant passenger was removed from a car after a traffic stop, and the officer with the defendant directed another to look for what he thought was a gun, which the other officer found. Defendant was held not to have standing as to the car as a whole, but he did as to seizure of the gun that was found where he was sitting in the car. The circuit court held he had standing, and the court of appeals affirms finding that the 2012 Jones reasonable expectation of privacy or trespass standard actually enhances a standing argument for the defendant’s specific property, here a gun in possession of a felon next to him in the car. Thus, defendant did, in fact, have a reasonable expectation of privacy in that small area where it was found. Also, in a departure from most other courts, the fact the state charged the defendant with the gun lends credence to standing. The state’s strongest argument, plain view, was abandoned on appeal. Inevitable discovery based on “he’s a felon” was held speculative. Commonwealth v. Simpson, 2017 Va. App. LEXIS 9 (Jan. 18, 2017) (memorandum):

… Only someone whose individual rights have been violated by government action may raise a Fourth Amendment challenge because “Fourth Amendment rights are personal rights which … may not be vicariously asserted.” Alderman v. United States, 394 U.S. 165, 174 (1969). Originally a separate inquiry, the United States Supreme Court has held that this Fourth Amendment standing requirement is “subsumed under substantive Fourth Amendment doctrine.” Rakas v. Illinois, 439 U.S. 128, 134 (1978). Accordingly, “the question is whether the challenged search and seizure violated the Fourth Amendment rights of a criminal defendant …. That inquiry in turn requires a determination of whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect.” Id. at 140.
The Fourth Amendment “protects two types of expectations, one involving ‘searches,’ the other ‘seizures.’ A ‘search’ occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A ‘seizure’ of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.” United States v. Jacobsen, 466 U.S. 109, 112 (1984). While in most cases, a party aggrieved by a seizure will also be aggrieved by a search, such is not necessarily the case and in this instance, it is critical to parse the search and seizure to identify the exact Fourth Amendment violation, if any, suffered by Simpson.

Turning first to whether Simpson’s Fourth Amendment rights were violated by Grella’s search of the car, we conclude that they were not because, under the totality of the circumstances, Simpson did not have a reasonable expectation of privacy or property interest in the areas of the car searched.

Simpson was merely a passenger in a car that he did not own or have a right to possess—“the fact that [Simpson was] ‘legitimately on [the] premises’ in the sense that [he was] in the car with … permission … is not determinative of whether [he] had a legitimate expectation of privacy in the particular areas of the automobile searched.” Rakas, 439 U.S. at 148 (quoting Jones v. United States, 362 U.S. 257, 267 (1960)). Simpson was the passenger of a nonowner driver, and the record is silent as to whether the driver did or did not have permission to use the car. Even applying the factual inference drawn by the circuit court that the driver had permission to use the car and invited Simpson to be a passenger, Simpson nonetheless had no right to exclude others from the car or any part thereof. No facts before the circuit court indicated that Simpson had any expectation that the car and its contents would be free from governmental invasion or that he exercised control over any portion of the car. Simpson was thus nothing more than a temporary passenger in another’s car. Cf. Barnes v. Commonwealth, 234 Va. 130, 135, 360 S.E.2d 196, 200 (1987) (holding that a defendant had no standing to challenge the search of an apartment where defendant had permission to be present in the apartment, but did not have a key, keep property there, or have any right to exclude others).

However, since the United States Supreme Court’s 2012 decision in United States v. Jones, 565 U.S. 400, 409 (2012) (“[T]he Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test.”), standing to assert the protections of the Fourth Amendment exist if one has either a reasonable expectation of privacy or a common-law property interest in the place searched or the things seized. Simpson asserted a property interest in the gun, and the Commonwealth implicitly concedes as much by the nature of the charges it brought against him. We therefore hold that the circuit court was correct in determining that Simpson had constitutional standing to object to the seizure of the gun, though not the search of the vehicle.

First, kudos to defense counsel if he or she was the genesis of the argument and the court didn’t just come up with it on its own. Second, this case clearly should have been published, and it’s going in the book supplement anyway. Third, does the unpublished nature of the case mean that the state supreme court is less likely to review it? That doesn’t dissuade most other states.

h/t to a reader for a case I would have passed over