Skip to Content
NYC Criminal Defense Attorney



Winning your New York City Criminal Case and Standing

Standing is the requirement that if you want to suppress evidence being used against you, you must show that this evidence was obtained in violation of your 4th amendment constitutional rights or those guaranteed under Section 12 of the New York State Constitution. The evidence that you are trying to suppress must be something that the government is trying to prove that you are guilty. So, if your rights were violated but you weren't arrested, you don't have standing to prevent the evidence from being used against someone else. InRakas v. Illinois, 439 US 128 (1979), the court noted that

"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."

In order to determine if you have standing, you have to also show that you have a legitimate expectation of privacy in the area that was searched. The test regarding whether you have a legitimate expectation of privacy has two components. The first is a subjective component- did the you exhibit an expectation of privacy in the place or item searched, that is, did he seek to preserve something as private. See, Smith v. Maryland, 442 U.S. 735, 740 (1979); People v. Bowden, 27 Misc. 3d 1226 (Sup. Ct. Bronx Co. 2010). The second component is objective- does society generally recognize the your expectation of privacy as reasonable, that is, is his expectation of privacy justifiable under the circumstances See, id at 740-741; see e.g., People v. Mercado, 68 N.Y.2d 874, 876 (1986).

Your intention to relinquish an expectation of privacy will be found if the circumstances reveal a purposeful divestment of possession of the item searched. See, People v. Martinez, 80 N.Y.2d 444 (1992); cf., People v. Howard, 50 N.Y. 2d 583 (1980). To find abandonment, the Court must find that you made a calculated, voluntary act to abandon the evidence and that you did not react spontaneously to an action taken by the Police. People v. Ramirez-Portoreal, 88 N.Y.2d 99 (1996).

The Court held in People v. Boodle (47 N.Y.2d 398 (1979)) that a defendant who dropped bags containing drugs after noting the mere presence of police officers constituted voluntary abandonment of the contraband. See also People v. Holland, 221 A.D. 2d 947 (4th Dept. 1995) (Because the defendant discarded a paper bag containing a controlled substance when he saw police approaching him, the defendant lost his right to object to the paper bag's seizure); People v. Diaz, 180 A.D.2d 415 (4th Dept. 1992) (Defendant's suppression motion denied where the defendant threw a bag containing a kilo of cocaine at a police officer as the police officer was approaching the defendant).

Standing issues are critical when fighting to suppress damaging evidence and can make the difference between being acquitted and going to jail. Strict time lines apply to filing the proper evidentiary motion in your case. Contact Us for a Evaluation evaluation.