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COMMENT

“Target Standing”: Constitutional


Violations Going Undeterred and the
Exclusionary Rule the Massachusetts
Supreme Judicial Court Should Have
Adopted

ASHLEY PEEL*

ABSTRACT

The Fourth Amendment guarantees individuals the right to be free


from illegal searches and seizures, and consequently access to the
Exclusionary Rule when this right has been infringed upon. In 1978, the
United States Supreme Court rejected target standing as a right protected
under the breadth of the Fourth Amendment. The Court reiterated its
longstanding opinion that the Fourth Amendment provides protection
only for the personal rights of an individual and cannot, therefore, be
extended to protect a third-party criminal defendant. Various states,
including Massachusetts, have followed suit and have hence declined to
adopt target standing as a protected Fourth Amendment right. However, a
minority of states have granted third-party criminal defendants’ protection
under target standing in circumstances where police conduct is egregious.
The Massachusetts Supreme Judicial Court (SJC) should join the minority
of states, who, in recent years have deviated from the Supreme Court’s
stance on target standing, and should instead analyze the target standing
rule on a case-by-case basis, identifying situations where the underlying

* Candidate for Juris Doctor, New England Law | Boston (2017). B.A. cum laude,

History, Political Science, & Public Relations, Mount Saint Mary College (2014). I would like to
thank my parents, Loretta and Robert, for their constant support, encouragement, and love
throughout my education. I would also like to thank the Editors and Associates for their hard
work and dedication in publishing this Comment.

323
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facts necessitate protection under the Fourth Amendment in order to


ensure a just outcome.

INTRODUCTION

“[U ]nconstitutional searches of small fish intentionally undertaken


in order to catch big ones may have to be discouraged by
allowing the big fish, when caught, to rely on the violation of the rights of
the small fish, as to whose prosecution the police are relatively
indifferent.”1
The Constitution was enacted to ensure that an individual’s rights and
liberties, guaranteed under the Constitution, are protected and guarded
against the “excesses of popular government.”2 In particular, the Fourth
Amendment was enacted to protect individuals from governmental
intrusion through illegal searches and seizures.3 Fourth Amendment issues
have often been “denigrated by the inconsistent and unprincipled methods
of interpretation and implementation employed by the Supreme Court.”4 A
defendant challenging the admissibility of illegally obtained evidence must
first show that he or she has standing to challenge the search and seizure.5
At its most basic level, to establish standing, a defendant must allege that
there has been a violation of his or her reasonable expectations of privacy.6
The Supreme Court has employed a two-part inquiry in the determination
of standing: “(1) whether the defendant had a subjective expectation of
privacy in the area searched or the item seized; and (2) whether society
considers this subjective expectation of privacy reasonable.”7 Once a

1 Commonwealth v. Santiago, 24 N.E.3d 560, 578 (Mass. 2015) (quoting Commonwealth v.

Manning, 548 N.E.2d 1223, 1225 (Mass. 1990)).


2 See Eulis Simien, Jr., The Interrelationship of the Scope of the Fourth Amendment and Standing

to Object to Unreasonable Searches, 41 ARK. L. REV. 487 passim (1988) (discussing the progression
of decisions which have led to an elimination of standing and allowing the protection of the
Fourth Amendment in only the narrowest of circumstances).
3 See U.S. CONST. amend. IV (“The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.”); see
also David A. Macdonald, Jr., Comment, Standing to Challenge Searches and Seizures: A Small
Group of States Chart Their Own Course, 63 TEMP. L. REV. 559, 559, 590 (1990) (comparing the
Supreme Courts view of standing with various state approaches to standing, and concluding
that broader standing requirements should be adopted).
4 Simien, supra note 2, at 489.
5 Macdonald, supra note 3, at 559.
6 See Jed Rubenfeld, The End of Privacy, 61 STAN. L. REV. 101, 137 (2008) (discussing standing
and its failure to vindicate the right of the amendment which it is supposed to protect).
7 Macdonald, supra note 3, at 559 (citing Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978)).
2017 Target Standing and the SJC 325

defendant has established these threshold requirements of standing, he or


she may utilize the exclusionary rule to exclude the evidence that was
obtained in violation of the Fourth Amendment.8
The Supreme Court has consistently held that Fourth Amendment
rights are personal rights, which therefore prevent third-party co-
defendants from asserting another’s as their own.9 Precedent dictates that
this rule requires a “balance be drawn between effectuating its deterrent
purpose and permitting the fact finder to decide a criminal case based on
the available relevant evidence, including ‘highly relevant evidence of
guilt.’”10 In order to achieve the proper balance, the Supreme Court in
Rakas v. Illinois decided that the benefit of the exclusionary rule should be
limited to those whose own constitutional rights have been violated.11
However, a number of state courts have come across scenarios that
required a varying interpretation of the Supreme Court’s decision in order
to best effect justice.12 In instances where evidence is illegally obtained
from the target of a search and used to implicate a third-party co-
defendant, policy may dictate that the third party use the target’s Fourth
Amendment rights as their own, in order to protect against an incidental
intrusion of government that the Fourth Amendment expressly prohibits.13

8 See Michelle Alexandria Curtis, Note, Ninth Circuit Joint Venture Standing: A Joint

Possessory Interest is Sufficient to Establish Fourth Amendment Standing, 34 ARIZ. L. REV. 311, 314,
318 (1992) (citing to the Supreme Court in Alderman v. United States, 394 U.S. 165, 176–78
(1969), which highlighted the value of the exclusionary rule by reiterating that illegally
obtained evidence will be suppressed even if it is at the expense of weakening or destroying
the case against the defendant).
9 Macdonald, supra note 3, at 586.
10 Commonwealth v. Santiago, 24 N.E.3d 560, 564 (Mass. 2015) (quoting Commonwealth v.
Scardamaglia, 573 N.E.2d 5, 5 (Mass. 1991)).
11 Rakas v. Illinois, 439 U.S. 128, 134 (1978) (“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.”
(quoting United States v. Calandra, 414 U.S. 338, 347 (1974))).
12 See,e.g., Waring v. State, 670 P.2d 357, 362 (Alaska 1983) (agreeing with the Supreme
Court that target standing would not deter unlawful conduct in most situations, but holding
that the purpose of the exclusionary rule would be effectuated when target standing is
allowed in circumstances of police knowingly and intentionally violating a co-defendant’s
rights); State v. Owen, 453 So. 2d 1202, 1205 (La. 1984) (acknowledging the federal
jurisprudence rule, but holding that under Louisiana law “any person that is adversely
affected” by an illegal search and seizure has standing).
13 Santiago, 24 N.E.3d at 563 (“[T]arget standing permits a criminal defendant who is the

‘target’ of a search by police ‘to contest the legality of that search and object to the admission
at trial of evidence obtained as a result of the search,’ in effect permitting the defendant ‘to
assert that a violation of the Fourth Amendment rights of a third party entitled him to have
evidence suppressed at his trial.” (quoting Rakas v. Illinois, 439 U.S. 128, 133 (1978))).
326 New England Law Review Vol. 51|2

If the defendant is granted protection under this target standing theory, the
exclusionary rule prohibits admittance of the evidence that was taken in
violation of a third party’s Fourth Amendment rights.14 The exclusionary
rule’s main objective is to deter future unlawful police conduct that is in
direct conflict with the purpose and guarantees of the Fourth
Amendment.15 These states have recognized that a broader interpretation
of the Fourth Amendment and the exclusionary rule may be appropriate in
circumstances where egregious police misconduct results in the illegal
seizure of evidence that incriminates a third party.16
The Supreme Court has rejected target standing as a protection
guaranteed under the Fourth Amendment.17 The Massachusetts Supreme
Judicial Court (SJC) is amongst the state courts that have acknowledged
that, in circumstances of egregious police misconduct, the target standing
theory may be appropriate in order to combat and deter police from
illegally seizing evidence.18 Notwithstanding this acknowledgment, the SJC
has yet to take the definitive step of determining that a situation presented
to it, involving police misconduct, has elevated to a degree that would
warrant such an application of the target standing rule.19 Using the limited
exclusionary rule set by the U.S. Supreme Court, the SJC determined in
Commonwealth v. Santiago that the defendant was not a victim of egregious
police misconduct and therefore target standing was not available.20 In

14 United States v. Calandra, 414 U.S. 338, 347 (1974).


15 SeeCommonwealth v. Manning, 548 N.E.2d 1223, 1225 (Mass. 1990) (discussing whether
the principles underlying the exclusionary rule require the exclusion of evidence seized); see
also Calandra, 414 U.S. at 347 (“The rule is calculated to prevent, not to repair. Its purpose is to
deter—to compel respect for the constitutional guaranty in the only effectively available
way—by removing the incentive to disregard it.” (quoting Elkins v. United States, 364 U.S.
206, 217 (1960))).
16 See Santiago, 24 N.E.3d at 564.
17 See,e.g., Brown v. United States, 411 U.S. 223, 229 (1973) ("[I]t is sufficient to hold that
there is no standing to contest a search and seizure where, as here, the defendants: (a) were
not on the premises at the time of the contested search and seizure; (b) alleged no proprietary
or possessory interest in the premises; and (c) were not charged with an offense that includes,
as an essential element of the offense charged, possession of the seized evidence at the time of
the contested search and seizure.”); Alderman v. United States, 394 U.S. 165, 174 (1969)
(“Fourth Amendment rights are personal rights which, like some other constitutional rights,
may not be vicariously asserted.”); Simmons v. United States, 390 U.S. 377, 389 (1968)
(“[R]ights assured by the Fourth Amendment are personal rights, and that they may be
enforced by exclusion of evidence only at the instance of one whose own protection was
infringed by the search and seizure.”).
18 Santiago, 24 N.E.3d at 564.
19 See id.
20 Id. (adopting the Supreme Court’s theory that an individual’s personal Fourth

Amendment rights are personal and therefore unable to be transferred).


2017 Target Standing and the SJC 327

Santiago, the SJC strictly applied the Supreme Court’s interpretation of


target standing, when it would have been more appropriate to emulate
other states’ broader interpretations of the rule.21 The SJC should have
adopted its own balancing test to determine when a defendant can utilize
the theory of target standing.
Part I of this Comment introduces the Supreme Court’s interpretation
of target standing and its application in Rakas. Part II discusses the facts,
holding, and reasoning of the SJC in Commonwealth v. Santiago. Part III
analyzes the SJC’s narrow interpretation of the Supreme Court’s Rakas
holding when deciding Santiago and explains why, in many scenarios,
justice necessitates a broader interpretation of Rakas. Part IV highlights the
decisions of sister courts who have broadly interpreted target standing,
proposing the SJC emulate this broader interpretation in consideration of
the underlying intention and just administration of the Fourth Amendment
of the United States Constitution.

I. Supreme Court Interpretation of Target Standing

The Supreme Court has consistently rejected the theory of target


standing within the protection of the Fourth Amendment:22 “Fourth
Amendment rights are personal rights which, like some other
constitutional rights may not be vicariously asserted.”23 However, there has
been marked contention among the state courts with some states
construing the Supreme Court’s holding broadly enough to encompass
target standing under certain circumstances.24 When the Supreme Court
granted certiorari in Rakas, it saw an opportunity to control the increasing
numbers of persons alleging a Fourth Amendment violation and the

21 Santiago, 24 N.E.3d at 581.


22 See,
e.g., Rakas v. Illinois, 439 U.S. 128, 138 (1978); Brown, 411 U.S. at 230; Simmons, 390
U.S. at 389; Wong Sun v. United States, 371 U.S. 471, 492 (1963); Silverman v. United States,
365 U.S. 505, 511 (1961); Gouled v. United States, 255 U.S. 298, 304 (1921) (holding that the
Fourth Amendment grants individual rights that cannot be extended to a third party).
23 Brown, 411 U.S. at 230 (quoting Alderman v. United States, 394 U.S. 165, 174 (1969)).
24 CompareRakas, 439 U.S. at 134 (“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.”),
with Waring v. State, 670 P.2d 357, 362 (Alaska 1983) (“Although we agree with the Supreme
Court that allowing standing to assert the violation of a co-defendant's rights would not deter
unlawful conduct in most situations, we believe deterrence would be furthered by such an
allowance when the unlawful conduct is intentionally directed toward a particular
defendant.”), and State v. Owen, 453 So. 2d 1202, 1205 (La. 1984) (“There is no equivalent
under Louisiana constitutional law to the federal rule that one may not raise the violation of a
third person's constitutional rights.”).
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resulting exclusion of evidence.25

A. Rakas v. Illinois: The Inapplicability of Target Standing

The landmark Supreme Court decision, Rakas v. Illinois, confronted the


issue of target standing and has become the pillar that other states consult
when deciding their own issues of target standing.26 The petitioners in
Rakas were appealing from a conviction of armed robbery when, during
trial, the prosecution offered into evidence a sawed-off rifle and rifle shells
that were seized during a search of the automobile in which the petitioners
were passengers.27 Before trial, the petitioners moved to suppress the
evidence, stating that they did not own the automobile or the possessions
inside of it; the prosecutor argued that the petitioners lacked standing to
challenge the search because the property did not in fact belong to them.28
The Illinois Trial Court and Court of Appeals agreed that the petitioners
lacked standing to object because they did not have a proprietary interest
that was affected by the alleged illegal seizure.29
The Supreme Court began its analysis of Rakas by first consulting the
basic rule of standing enunciated in Jones v. United States.30 The standing
test from Jones focuses on whether the person who is seeking to suppress
evidence by asserting a violation of his or her Fourth Amendment right is
the actual victim.31 The Jones holding allowed any criminal defendant—
regardless of whether the defendant was the direct or indirect target of the
search—access to the exclusionary rule.32 The Rakas Court declined to
extend this holding in Jones to target standing because of the court’s belief
that the Fourth Amendment strictly applies to nontransferable personal
rights.33 The court went on to state that the purpose of the exclusionary rule
is to effectuate the Fourth Amendment and therefore, because it only
applies to personal rights, the benefit from the rule’s protection cannot be
extended to third parties.34 The Rakas court emphasized the opinion in

25 Simien, supra note 2, at 493.


26 See generally Rakas, 439 U.S. at 128 (affirming again the Supreme Court’s long held
precedent that Fourth Amendment rights are personal and cannot be extended to a third
party defendant).
27 Id. at 129.
28 See id. at 131.
29 Id.
30 See id.; see also Jones v. United States, 362 U.S. 257, 261 (1960).
31 See Jones, 362 U.S. at 261.
32 See Rakas, 439 U.S. at 132–33; see also Jones, 362 U.S. at 261.
33 See Rakas, 439 U.S. at 133.
34 See id. at 134.
2017 Target Standing and the SJC 329

United States v. Alderman,35 which counseled against extension of the


exclusionary rule because, according to the court, the rule’s deterrent
values are adequately effectuated absent extension to third parties.36
Significantly, Rakas reasoned that every time the exclusionary rule is
utilized it exacts a substantial social cost for the vindication of Fourth
Amendment rights because evidence that would otherwise be relevant or
reliable is kept from the trier of fact.37

B. United States v. Payner

Following its decision in Rakas, the Supreme Court confronted the issue
of target standing again in United States v. Payner, which further restricted
the application of target standing.38 The defendant in Payner moved to
suppress illegally seized evidence—documents that showed he falsified his
income tax return—from the briefcase of a third party.39 The district court
in Payner held that “society’s interest in deterring bad faith conduct by
exclusion outweighs society’s interest in furnishing the trier of fact with all
relevant evidence.”40 The Payner court cited Rakas to re-enforce its holding
that the exclusionary rule only applies to criminal defendants that have
had their own constitutional rights infringed upon.41 The court further
restricted the rule, explaining that a defendant’s Fourth Amendment rights
are violated only when that defendant’s legitimate expectation of privacy is
infringed upon, not that of a third party.42
In examining if target standing could be warranted, the court in Payner,
like that in Rakas, relied on the necessity of balancing administrative
burdens against practical application.43 The Payner court adopted the
Government’s argument that an “extension of the supervisory power
would enable federal courts to exercise a standard-less discretion in their
application of the exclusionary rule to enforce the Fourth Amendment.”44
The court articulated that there are circumstances that may warrant the

35 See Alderman v. United States, 394 U.S. 165, 174–75 (1969).


36 See Rakas, 439 U.S. at 137.
37 Id.;see also Alderman, 394 U.S. at 174–75 (“[W]e are not convinced that the additional
benefits of extending the exclusionary rule to other defendants would justify further
encroachment upon the public interest in prosecuting those accused of crime and having them
acquitted or convicted on the basis of all the evidence which exposes the truth.”).
38 See United States v. Payner, 447 U.S. 727, 731 (1980).
39 See id. at 730–31.
40 Id. at 737 (quoting United States v. Payner, 434 F. Supp. 113, 135 (N.D. Ohio 1977)).
41 See id. at 731–32.
42 Id. at 731.
43 See id. at 733–34.
44 Payner, 447 U.S. at 733.
330 New England Law Review Vol. 51|2

exclusion of evidence in cases of illegality, but this was a circumstance that


when weighing the considerable harm that would flow from the
indiscriminate application of the exclusionary rule, did not warrant
application of the rule.45 The court effectively limited the rule to “areas
where its remedial objectives are most efficaciously served.”46 Ultimately,
the Payner court held that, in line with prior Fourth Amendment cases, a
third-party defendant’s interest in evidence obtained during an illegal
search does not warrant exclusion of evidence.47 Rather, the court will look
only to the property or possessory interest of the actual victim of the
Fourth Amendment violation.48 Payner stated that evidence could not be
excluded in every case of illegality; instead, the benefits of allowing the
application of the exclusionary rule must be weighed against the
considerable harm that would flow from indiscriminate application.49
However, the Payner court did not explicitly reject the notion of target
standing in instances of egregious police misconduct, which left state
courts free to determine the probative value of target standing.50

II. Commonwealth v. Santiago

On May 14, 2012 Angel Santiago was riding a bicycle in the North End
of Springfield, Massachusetts, when he caught the attention of Police
Officer William Catellier, who was on uniform patrol.51 Officer Catellier
had no previous interactions with Santiago, but he noticed him because the
North End is a known area where “drug runners sometimes use bicycles to
relay drugs and money between street level dealers and buyers.”52 Two
days later, Officer Catellier was on patrol in the North End when he
observed Santiago again riding his bike.53 Officer Catellier, unaware at the
time that Santiago had been arrested the previous day, undertook
surveillance of Santiago in his marked cruiser.54 After losing sight of him
for less than a minute, Officer Catellier observed Santiago dismount his
bike and walk east down Bancroft Street, where he then approached a
man—later identified as Edwin Ramos—who stepped out of the entryway

45 See id. at 734–35.


46 Id. at 734 (quoting United States v. Calandra, 414 U.S. 338, 348 (1974)).
47 See id.
48 Id. at 735.
49 Id.
50 See generally Payner, 447 U.S. at 735 (omitting the question whether target standing would

be applicable in instances of egregious police misconduct).


51 Commonwealth v. Santiago, 24 N.E.3d 560, 562 (Mass. 2015).
52 Id.
53 Id.
54 Id.
2017 Target Standing and the SJC 331

to a building.55 Officer Catellier reported that he witnessed Santiago extend


his arm toward Ramos, and then Ramos appeared to put something in his
shirt pocket.56 “Officer Catellier did not see a specific item in either man’s
hand,” he “did not see an exchange,” and he did not see Ramos give
anything to Santiago; regardless, Officer Catellier suspected a drug
transaction.57 The two men began walking together when Officer Catellier
and his partner immediately intercepted and detained them.58 “Officer
Catellier told Ramos to ‘hold on a second,’” and reached into his pocket,
recovering a small packet of cocaine.59
Subsequently, the officers searched Santiago.60 The search produced
five dollars in his wallet, but no drugs.61 Both men were arrested as a result
of the incident; Ramos was charged with possession of cocaine and
Santiago was charged with distribution of the same.62 In prosecuting
Santiago for distribution of cocaine, the Commonwealth proposed to use
the cocaine that was seized from Ramos’ shirt pocket.63
Ramos resolved his case with a guilty plea, choosing not to bring a
motion to suppress the evidence of the alleged transaction.64 Santiago,
using the theory of target standing, was forced to file a motion to suppress
the evidence seized from Officer Catellier’s search of Ramos.65 The trial
court allowed Santiago’s motion to suppress the evidence under the target
standing theory.66 The trial judge reasoned that a claim of “automatic
standing” was not available to the defendant because he was not charged
with a possessory offence.67 However, the judge ruled that under the
theory of target standing, the defendant was entitled to assert standing to
challenge the search and seizure of cocaine from Ramos.68 The trial judge
determined that there were no reasonable facts in the officers’ observations

55 Id.
56 Id.
57 Santiago, 24 N.E.3d at 562.
58 Id.
59 Id.
60 Id.
61 Id. at 563.
62 Id. at 562.
63 Santiago, 24 N.E.3d at 562.
64 Id. at 563.
65 Id. at 562–63.
66 Id.
67 See Commonwealth v. Amendola, 550 N.E.2d 121, 126 (Mass. 1990) (holding that when a

defendant is charged with a crime in which possession is an essential element of guilt, the
defendant shall be deemed to have standing to contest the legality of the search and seizure of
the evidence).
68 See Santiago, 24 N.E.3d at 563.
332 New England Law Review Vol. 51|2

of Ramos and Santiago that would suggest reasonable suspicion


warranting a “Terry-type” stop—69 nor did the police have probable cause
to search Ramos based on safety concerns.70 The trial judge further
determined that the police officers conducted the search of Ramos “with
the goal of obtaining incriminating evidence against both Ramos and the
defendant, but principally the defendant,” and that this search was an
intentional and egregious violation of Ramos’ Fourth Amendment right
and warranted the application of target standing.71 Since Ramos pleaded
guilty to possession and resolved his charges, the illegal police conduct
would receive no sanction, and therefore provide no deterrence to police
officers conducting themselves in an unconstitutional manner.72 The trial
judge in Santiago’s case viewed the underlying facts of Santiago’s situation
as one that necessitated standing to challenge the police seizure of illegal
drugs from a third party.73 The trial judge found it necessary in order to
avoid creating “a means for police to easily circumvent the requirement of
a warrant, or at leas[t] probable cause where there is some exigency, for
searches of persons suspected of engaging in an unlawful exchange.”74
Thereafter, the Commonwealth immediately filed a notice of appeal in
the Superior Court and an application for leave in order to bring an
interlocutory appeal.75 The Commonwealth’s application for appeal was
granted and the SJC then transferred the appeal on its own motion to
confront the question of target standing.76 On appeal, the SJC consulted the
Supreme Court’s precedent of target standing in Rakas,77 and their own
precedent, mainly Commonwealth v. Scardamaglia, in making their decision.78

69 See HAMID R. KUSHA, DEFENDANT RIGHTS 149 (2004) (addressing the issue of

reasonableness in search and seizure activities which held that “reasonable suspicion” is
necessary to entitle a Terry-type stop where police can stop, question, and frisk a person who
the police officer believes is acting suspiciously).
70 See Santiago, 24 N.E.3d at 563; see also Terry v. Ohio, 392 U.S. 1, 30 (1968) (holding that an

officer who, in light of experience, observes unusual conduct, and after identifying him or
herself as an officer and making reasonable inquiries, if “nothing in the initial stages of the
encounter serves to dispel” the officer’s own reasonable fear of safety “or others’ safety, [the
officer] is entitled . . . to conduct a carefully limited search of the outer clothing of such
persons in an attempt to discover weapons which might be used to assault” the officer).
71 See U.S. CONST. amend IV; see also Santiago, 24 N.E.3d at 563.
72 See Santiago, 24 N.E.3d at 564.
73 See id.
74 Id. at 563.
75 See id.; see also MASS. R. CRIM. P. 15(a)(2) (permitting a right to an interlocutory appeal).
76 See Santiago, 24 N.E.3d at 563.
77 See infra Part III.
78 See Santiago, 24 N.E.3d at 563.
2017 Target Standing and the SJC 333

III. The SJC Strict Adherence to the Supreme Court’s Holding in Rakas

A. Commonwealth v. Santiago

Since 1990, the SJC has consistently been presented with the question
of target standing in relation to article fourteen of the Massachusetts
Declaration of Rights,79 but to date it has refused to adopt target standing.80
The SJC in Santiago began its analysis by referencing the Supreme Court’s
definition of target standing and its decision to not accept it as a viable
claim.81 The SJC reiterated the Supreme Court’s holding that the primary
purpose of the exclusionary rule is to deter police misconduct by excluding
evidence that has been seized in violation of an individual’s rights which
are granted by federal and state constitutions.82 The SJC, in compliance
with its precedent, explained that in order to warrant application of the
exclusionary rule there must be a balance “between effectuating its
deterrent purpose and permitting the fact finder to decide a criminal case
based on the available relevant evidence, including ‘highly relevant
evidence of guilt.’”83 The SJC again consulted the Supreme Court’s decision
in Rakas for determining how to effectuate the proper balance.84 The SJC
considered the Supreme Court’s opinion in Rakas, that the appropriate

79 See MASS. CONST. pt. 1, art. XIV (“Every subject has a right to be secure from all

unreasonable searches, and seizures, of his person, his houses, his papers, and all his
possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of
them be not previously supported by oath or affirmation; and if the order in the warrant to a
civil officer, to make search in suspected places, or to arrest one or more suspected persons, or
to seize their property, be not accompanied with a special designation of the persons or
objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with
the formalities prescribed by the laws.”).
80 See, e.g., Santiago, 24 N.E.3d at 563; Commonwealth v. Vacher, 14 N.E.3d 264, 274–75

(Mass. 2014) (holding that this was not a case of egregious police misconduct and the
defendant did not prove that he was not the original target of the search and seizure, therefore
the evidence was not excluded under the theory of target standing); Commonwealth v.
Waters, 649 N.E.2d 724, 726 (Mass. 1995) (holding that in the absence of distinctly egregious
misconduct that might justify target standing, the defendant may not utilize the target
standing theory); Commonwealth v. Scardamaglia, 573 N.E.2d 5, 8 (Mass. 1991) (noting that
few jurisdictions have adopted the target standing rule, and the court is reluctant to adopt it
except possibly in circumstances of distinctly egregious police conduct); Commonwealth v.
Manning, 548 N.E.2d 1223, 1225 (Mass. 1990) (seeking to apply target standing to invalidate
the search because the police were seeking to reach one specific defendant); Commonwealth
v. Price, 562 N.E.2d 1355, 1359 (Mass. 1990) (refusing to extend target standing in the absence
of police misconduct or unfairness).
81 See Santiago, 24 N.E.3d at 563.
82 Id. at 563–64.
83 Id. at 564 (quoting Scardamaglia, 573 N.E.2d at 8).
84 See Rakas v. Illinois, 439 U.S. 128, 134 (1978); see also Santiago, 24 N.E.3d at 564.
334 New England Law Review Vol. 51|2

balance is achieved by limiting it to those whose own constitutional rights


have been violated, but claimed that they have accepted a broader
interpretation than the Supreme Court.85 The SJC stated that in light of
article fourteen a broader interpretation is necessary when unconstitutional
searches of “small fish are intentionally done in order to catch a big fish.”86
The SJC further expanded, saying that target standing may be appropriate
in instances of “distinctly egregious police misconduct” in order to create a
deterrent effect.87
In direct conflict of its supposed “broader view,” the SJC failed to agree
with the trial judge that target standing was appropriate, even though
there was presence of police misconduct.88 The SJC stated that the trial
judge erred in concluding that the absence of probable cause was obvious;
instead, the court believed the evidence—the police officers’ experience,
the high crime area, and the defendants’ suspicious interaction—amounted
to sufficient probable cause to search the defendants.89 The SJC stated that
at minimum “there was a sufficient basis for Catellier [the police officer] to
have reasonable suspicion of a drug transaction, and therefore to conduct a
Terry-type stop of the defendant and Ramos.”90 The SJC explained that it
believed that the search of Ramos was brief and limited, did not constitute
an egregious violation of Ramos’ rights, and therefore the theory of target
standing could not be utilized.91 What the SJC failed to acknowledge was
that because Ramos pled guilty, the issue of his violated Fourth
Amendment rights was never argued before a fact finder.92 The SJC
dismissed the trial judge’s determination that probable cause was absent
and developed its own interpretation of the incident that amounted to
sufficient probable cause.93 After analyzing Santiago’s case under the
holding of Rakas, the court reaffirmed its decision in Scardamaglia—which
also consulted Rakas.94

B. Commonwealth v. Scardamaglia

Prior to Santiago, the SJC directly confronted the issue of egregious

85 Santiago, 24 N.E.3d at 564.


86 Id. (quoting Commonwealth v. Vacher, 14 N.E.3d 264, 274 (Mass. 2014)).
87 Id. (quoting Scardamaglia, 573 N.E.2d at 8).
88 See id.
89 See id.
90 Id.
91 Santiago, 24 N.E.3d at 565.
92 See id.
93 See id. at 564.
94 See Commonwealth v. Scardamaglia, 573 N.E.2d 5, 6 (Mass. 1991).
2017 Target Standing and the SJC 335

police misconduct and target standing in Commonwealth v. Scardamaglia.95


The defendant in that case challenged the lawfulness of the search on the
grounds that the police obtained probable cause by violating the
constitutional rights of a third party, Scott Burnham.96 Throughout the
opinion, the court stressed the reluctance of courts to accept target
standing, especially the Supreme Court’s reluctance in Rakas and in
Payner.97 The Scardamaglia court reiterated the opinion in Rakas that any
increase in the deterrent effect of the exclusionary rule still did not warrant
the exclusion of incriminating evidence against an individual whose
Fourth Amendment rights were not directly violated.98 When the
Scardamaglia court issued its holding—that target standing is not
applicable—it reasoned that: “(1) the administrative costs to the criminal
justice system of handling such claims would be substantial and (2) the
need to create a deterrent effect on police misconduct by the recognition of
target standing is not great except perhaps in the case of distinctly
egregious police conduct.”99
The SJC in Santiago reaffirmed its decision in Scardamaglia, and also
stressed the guidance from Rakas in making its decision on target
standing.100 The SJC in Scardamaglia rejected target standing for three
reasons, employing the Supreme Court’s reasoning in Rakas:
(1) because the right of privacy protected by the Fourth
Amendment is a private one that may not be asserted vicariously,
the remedy provided by the exclusionary rule must also be
private in nature . . .; (2) the necessary inquiry into the
motivations of law enforcement personnel as to “targeting”
would create “very substantial administrative difficulties” not
justified by the hypothesized increase in Fourth Amendment
protection . . .; and (3) the deterrent purposes of the exclusionary
rule would adequately be served by suppression of evidence at
the trial of the person whose rights were actually violated, and by
the prospect of civil damages for violation of that person’s
constitutional or State law privacy or property rights . . . .101

The SJC’s strict adherence to the Supreme Court’s position on target


standing has led the court to overlook and not properly analyze situations
where police misconduct was egregious in nature, and therefore warranted

95 See id. at 8.
96 Id. at 5.
97 See id. at 6.
98 Id.
99 Id. at 8.
100 See Commonwealth v. Santiago, 24 N.E.3d 560, 563 (Mass. 2015).
101 Scardamaglia,573 N.E.2d at 6 (citations omitted) (citing Rakas v. Illinois, 439 U.S. 128,
133–34, 136–37 (1978)).
336 New England Law Review Vol. 51|2

the application of target standing.102 In deciding Santiago, the SJC should


have followed other states in applying a broader interpretation of the
Supreme Court’s narrow decision of target standing enunciated in Rakas,
which fails to comprehend and deter such egregious conduct on the part of
police and government officials.103

IV. Other States Broader Interpretations

The SJC should emulate other jurisdictions’ broader interpretations of


the Supreme Court’s balancing test in order to ensure just administration of
the Fourth Amendment.104 In the first impression case of Waring v. State,
the Alaska Supreme Court held that target standing can be applicable to
third-party defendants.105 The court reasoned that target standing is valid
because the ultimate deterrent purposes of the exclusionary rule require
the “exclusion of evidence when police knowingly and intentionally violate
a co-defendant’s rights.”106 The Waring court emphasized the importance of
target standing in deterring police misconduct; if a defendant was not
given standing to assert a violation, then police could be encouraged to
intentionally violate the rights of a “small fish” in order to catch a “large
fish.”107 The Supreme Court of Louisiana in State v. Owen, took a different
approach than the Alaska Supreme Court, and held target standing to be
valid under Louisiana state law.108 In consulting past precedent the Owen
court held that Louisiana has always interpreted that “‘any person
adversely affected’ by a search and seizure allegedly conducted in violation
of art. 1. § 5 has standing to raise illegality.”109

A. Waring: Target Standing in Cases of Egregious Misconduct

The Alaska Supreme Court is one of the prominent jurisdictions that


has recognized target standing.110 In Waring v. State, state troopers were
traveling down a road outside of Fairbanks when they saw three

102 See Santiago, 24 N.E.3d at 563.


103 See Waring v. State, 670 P.2d 357, 366–67 (Alaska 1983); State v. Owen, 453 So. 2d 1202,
1205 (La. 1984).
104 See, e.g., Waring, 670 P.2d at 366–67; Owen, 453 So. 2d at 1205.
105 See Waring, 670 P.2d at 367.
106 See id. at 362.
107 See id. at 362–63; see also Commonwealth v. Vacher, 14 N.E.3d 264, 274 (Mass. 2014).
108 See Owen, 453 So. 2d at 1205.
109 See LA. CONST. art. 1, § 5; see also Owen, 453 So. 2d at 1205.
110 See generally Waring, 670 P.2d at 357 (holding that a balance must be drawn between the
competing interests of effectuating the purpose of the Fourth Amendment and the incidental
effect of admitting evidence that was obtained in violation of a third party’s Fourth
Amendment rights).
2017 Target Standing and the SJC 337

individuals standing next to a parked car in a roadside turnout.111 Before


stopping to investigate, the officers called in the license plate number of the
car and discovered that it was properly registered and not stolen.112
Regardless of the valid registration of the vehicle, the officers approached
the car, and began to inspect it.113 One of the officers asked one of the
young men what was wrong and the man replied that they had a problem
with the car, but did not need assistance; regardless, the officers requested
identification from the defendants.114 While running their identifications,
one of the officers became suspicious of two of the individuals whispering
and looking towards the woods.115 On a “lucky guess,” the officer asked
who the other people were in the woods and the individual provided him
with two names.116 The officers went into the woods and found two
individuals—one who was in possession of a gun.117 The officer searched
the premises and found other firearms which were determined to be
stolen.118 A victim of a recent robbery identified the guns as his.119 When
confronted by the officers one of the defendants quickly admitted to the
burglary, and upon hearing this confession the other individuals gave
statements as well.120 The third-party defendants attempted to assert target
standing and the case was appealed to the Supreme Court.121
The Waring court held that in determining if “a defendant has standing
to assert the violation of a co-defendant’s” Fourth Amendment rights in
illegal search and seizure cases, a balance must be achieved between “the
competing interests, i.e., whether the interest in introducing reliable
evidence that was obtained in violation of a codefendant’s [F]ourth
[A]mendment rights outweighs the deterrent effect of excluding such
evidence.”122 The court further discusses the Supreme Court’s decision in
Alderman and its failure to adopt target standing protection.123 The
Alderman court conceived the deterrent effect to be marginal compared to

111 Id. at 358.


112 Id.
113 See id.
114 Id.
115 Id.
116 Waring, 670 P.2d at 357.
117 Id.
118 Id.
119 Id.
120 Id.
121 Id.
122 Waring, 670 P.2d at 361.
123 See Alderman v. United States, 394 U.S. 165, 187 (1969); see also Waring, 670 P.2d at 362.
338 New England Law Review Vol. 51|2

the need for reliable evidence at trial.124 The Waring court agreed with the
Supreme Court’s view that allowing a co-defendant to assert standing for
the violation of the other defendant’s Fourth Amendment rights would not
significantly deter unlawful police misconduct in most situations.125 The
Waring court then turned its analysis to instances of egregious police
misconduct, which it believed individuals must be protected against.126 The
Waring court held that circumstances of gross or shocking “police
misconduct which shocks the conscience, or is of a nature that calls for the
judiciary, as a matter of judicial integrity, to disassociate itself from benefits
derivable therefrom,” would permit invocation of the exclusionary rule.127
Using this reasoning, the Waring court acknowledged that in order to
preserve judicial integrity, and deter misconduct, the exclusionary rule
should be extended to a co-defendant in instances where police knowingly
and intentionally violate the co-defendants rights.128 The court zealously
believed that in accepting this theory, it would deter police from violating
the rights of a person who will not be prosecuted in the hopes that the
illegally obtained evidence would eventually be used against another
defendant.129 The court concluded that a co-defendant can assert target
standing if they can prove: “(1) that a police officer obtained the evidence
as a result of gross or shocking misconduct, or (2) that the officer
deliberately violated a co-defendant’s rights.”130
The SJC should have emulated the Waring court’s approach to the
Supreme Court’s balancing test of the exclusionary clause.131 Before the SJC
conducts its balancing test there must first be a determination that there
was presence of egregious police misconduct.132 The SJC, in conflict with
the trial judge’s opinion, found the police conduct in Santiago did not rise
to an egregious level because it believed that there was probable cause for a
“Terry-type” search.133 A reasonable suspicion standard is necessary when
an officer conducts a “Terry-type” stop, which is when he is acting within
his own experiences and observes something suspicious which causes him

124 See Alderman, 394 U.S. at 174–75 (“[W]e are not convinced that the additional benefits of

extending the exclusionary rule to other defendants would justify further encroachment upon
the public interest in prosecuting those accused of crime and having them acquitted or
convicted on the basis of all the evidence which exposes the truth.”).
125 Waring, 670 P.2d at 362.
126 See id. at 361–62.
127 Id. at 362 (quoting State v. Sears, 553 P.2d 907, 914 (Alaska 1976)).
128 See id. at 262–63.
129 See id. at 363.
130 Id.
131 See Waring, 670 P.2d at 361.
132 See id.
133 See Commonwealth v. Santiago, 24 N.E.3d 560, 563 (Mass. 2015)
2017 Target Standing and the SJC 339

to be in fear for his own or others’ safety.134 In Santiago, Officer Catellier


had neither probable cause nor reasonable suspicion—necessary for a
“Terry-Type” stop—which would have allowed him to conduct his search
of Ramos.135 Officer Catellier did not see a specific item in either man’s
hand, he did not see an exchange, and he did not see Ramos give anything
to Santiago, but regardless he still “suspected” a drug transaction.136 Officer
Catellier’s search of Ramos without adequate probable cause and his
failure to meet the Terry standard resulted in police misconduct “which
shocks the conscience.”137 If the SJC had applied the balance approach of
Waring, it is likely that the Court would have found that the deterrent effect
of excluding evidence that was seized in violation of a third party’s rights,
outweighs the effectuating purpose of admitting reliable evidence to
achieve truth and justice.138
Santiago, like the third-party defendants in Waring, was an incidental
victim of egregious police misconduct when the police officers illegally
seized evidence from Ramos.139 Under the Waring approach, Ramos’s
failure to suppress the evidence would be a factor that sways the balance in
favor of target standing because without it, deterrence would not be
effectuated.140 Rejection of target standing in this instance would encourage
police officers to easily circumvent the requirement of a warrant, or pursue
the seizure of evidence absent probable cause when there is possibility of
convicting an incidental third party.141 The SJC has evaded the intentions of
the Fourth Amendment in failing to apply target standing in Santiago.142

B. Owen: Applicable State Law Allows Target Standing

Another leading case accepting the theory of target standing is


articulated in the Eleventh Circuit case of State v. Owen.143 Officer McCann
received a call reporting a crime, and when he went to the scene of the
crime, he noticed that the front door of the house had been broken into and
that there was blood all over the front room.144 The officer claimed that it

134 See Terry v. Ohio, 392 U.S. 1, 6 (1968).


135 See Santiago, 24 N.E.3d at 563.
136 See id. at 576.
137 See Waring, 670 P.2d at 362; see also Santiago, 24 N.E.3d at 565.
138 See Waring, 670 P.2d at 361.
139 See id. at 363; Santiago, 24 N.E.3d at 563.
140 See Waring, 670 P.2d at 362.
141 See Santiago, 24 N.E.3d at 563.
142 See id.
143 Seegenerally State v. Owen, 453 So. 2d 1202 (La. 1984) (holding that the defendants
under Louisiana law could validly assert the theory of target standing).
144 Id. at 1203.
340 New England Law Review Vol. 51|2

appeared to him that there had been a struggle and someone had gone
through the drawers and cabinets of the home.145 The victim identified one
of the perpetrators as Owen and provided the address of where Owen had
stayed one time with a friend.146 Officer McCann dispatched other officers
to the address, and when the officers approached the trailer they witnessed
an individual looking out the window, and soon after the lights to the
residence were turned off.147 Officer McCann stated that he heard
movement inside, but no one answered the door when the officers
identified themselves as police officers.148 The officers tried to rouse Evans,
the owner of the trailer, out of the residence but when there was no
response, the officers entered the residence without permission.149
Conflicting facts were offered by the defendants and officers, but the
officers testified that they witnessed Owen and another sleeping in the
front room.150 The officer’s further testified that they told another
individual to get the owner of the residence because they were
investigating an armed robbery and stabbing in which Owen was a
suspect.151 During the time that they were waiting for Officer McCann,
Evans, the owner of the trailer, consented to a search of the trailer.152 The
officers were asked by the defendants why they were there; no one was
handcuffed, no search was conducted, and no arrests were made.153 Once
Officer McCann arrived, Evans again consented to the search, and the
search was conducted and resulted in the discovery of numerous coins and
prescription bottles with the victim’s name on them.154 The defendants
were arrested as a result of this evidence and, at trial, filed a motion to
suppress the evidence obtained claiming the search was illegal.155
Instead of directly adopting the Supreme Court’s position on target
standing, the Owen court acknowledged that Louisiana does not have a
federal rule equivalent that disallows an individual to raise the violation of
the targeted individual’s constitutional rights.156 The court went on to
recognize that precedent has always interpreted that under the Louisiana

145 Id.
146 Id.
147 Id.
148 Id.
149 Owen, 435 So. 2d at 1203–04.
150 Id. at 1204.
151 Id.
152 Id.
153 See id.
154 Id.
155 See Owen, 435 So. 2d at 1204.
156 See id. at 1205.
2017 Target Standing and the SJC 341

Constitution article 1, § 5, “’any person adversely affected’ by a search or


seizure allegedly conducted in violation of art. 1, § 5 has standing to raise
that illegality.”157 When applying this article to the facts of Owen, the court
held that although the defendants could not validly assert protection under
the Fourth Amendment, under state constitutional law the defendants
could test the admissibility of the evidence.158 Because the defendants were
adversely affected by the search and subsequent evidence of that search,
the Louisiana Constitution could provide grounds for relief.159 The Owen
court found the police conduct to be egregious because in the effort to
obtain information, they made a warrantless entry into Evans’ trailer
without his consent, and with no intention to arrest or detain him.160
Similarly to Louisiana, the Massachusetts Fourth Amendment
equivalent, Article 14 of the Declaration of Rights, does not specifically
state that the right to be secure from illegal search and seizures is an
individual right.161 Therefore, the SJC can emulate the approach
constructed by Louisiana while still effectuating the purpose of the Fourth
Amendment to the U.S. Constitution, by allowing exercise of the
exclusionary rule in instances where any individual is the victim of an
illegal search and seizure.162 Similar to the defendant in Owens, Officer
Catellier made a warrantless search without Ramos’ consent in an attempt
to obtain information, and therefore that conduct can be asserted to be
egregious.163
In determining whether target standing can be adequately applied, the
SJC should look to policy considerations and the strategies of other states
to determine what constitutes egregious police misconduct against a third
party, therefore warranting protection under the Fourth Amendment.164 At
its core, the Fourth Amendment was created for individual protection to
ensure that law enforcement would not use its power contrary to the law.165
To give the Fourth Amendment enforceable power, the Supreme Court
adopted the exclusionary rule and held that it was an essential inclusion in
enforcing the Fourth Amendment, which made it law in every jurisdiction

157 Id. (interpreting the state constitution); see also LA. CONST. art. 1, § 5.
158 See Owen, 453 So. 2d at 1205.
159 Id.
160 See id. at 1207.
161 See MASS. CONST. pt. 1, art. XIV.
162 See Owen, 453 So. 2d at 1205.
163 See Commonwealth v. Santiago, 24 N.E.3d 560, 563 (Mass. 2015).
164 See Waring v. State, 670 P.2d 357, 361 (Alaska 1983); see also Owen, 453 So. 2d at 1205.
165 SeeKeith A. Fabi, Comment, The Exclusionary Rule: Not the “Expressed Juice of the Woolly-
Headed Thistle”, 35 BUFF. L. REV. 937, 945 (1986).
342 New England Law Review Vol. 51|2

in the United States.166 Since its application, the Supreme Court has
revisited the exclusionary rule to ensure that it is being applied in
congruence with the original aims of the Fourth Amendment.167 In
revisiting the exclusionary rule, the court has acknowledged the public’s
misconception that the application of the rule results in countless guilty
defendants running free and impedes the truth finding functions of the
judicial system.168 Paradoxically, this also appears to be the court’s concern
with accepting the application of target standing.169 However, this concern
is unfounded and misplaced.170 Target standing would not allow countless
guilty defendants to go free; instead, target standing would effectuate the
purpose of the Fourth Amendment, by allowing a third-party defendant to
assert the exclusionary rule when that individual has been an incidental
victim of egregious police misconduct in seizing incriminating evidence.171

CONCLUSION

The SJC erred in Santiago by strictly applying the Supreme Court’s


interpretation of target standing when it should instead have emulated
other states’ broader interpretations, thereby adopting a practice of using
its own balancing test in determining when a defendant can utilize the
theory of target standing.172 The SJC should revisit the foundations of the
Fourth Amendment and take into consideration what the Fourth
Amendment was created to do, which is to deter misconduct by
government officials.173 In doing so, the SJC should look to jurisdictions like
Alaska and Louisiana for guidance when determining whether police

166 Id. at 942 (“Without [sic] that rule the freedom from state invasions of privacy would be

so ephemeral and so neatly severed from its conceptual nexus with the freedom from all
brutish means of coercing evidence as not to merit this Court’s high regard as freedom
‘implicit in the concept of ordered liberty.’”) (quoting Mapp v. Ohio, 367 U.S. 643, 655 (1961)).
167 See,
e.g., Mapp v. Ohio, 367 U.S. 643 (1961); Weeks v. United States, 232 U.S. 383 (1914);
Boyd v. United States, 116 U.S. 616 (1886); see Fabi, supra note 165, at 942.
168 See, e.g., United States v. Payner, 447 U.S. 727, 734 (1980) (discussing the social costs of

broadening the application of the exclusionary rule); United States v. Calandra, 414 U.S. 338,
354 (1974) (stating that the public finds it more advantageous to allow a possible excessive
governmental intrusion than the risk of setting free a guilty defendant); see also Fabi, supra
note 165, at 942.
169 See Fabi, supra note 165, at 942.
170 See id.
171 See id.
172 See, e.g., Waring v. State, 670 P.2d 357, 361 (Alaska 1983); State v. Owen, 453 So. 2d 1202,

1205 (La. 1984).


173 See U.S. CONST. amend. IV; see also Simien, supra note 2, at 533.
2017 Target Standing and the SJC 343

misconduct rises to the level of egregiousness so as to warrant target


standing.174
The SJC should consider that in adopting this exclusionary rule, it
would not be creating precedent contradictory to the Supreme Court’s
position on target standing.175 Rather, the SJC would be construing the
Supreme Court’s rationale on target standing to provide for a narrow
exception in cases where police misconduct is so egregious or shocking
that justice requires protection under the Fourth Amendment.176 Where
conduct is deemed to fall short of the standard of egregiousness, the
principles and policies of the Supreme Court for admitting such evidence
would still be upheld.177

174 See generally Waring, 670 P.2d at 361 (holding that applicable state law guarantees third

parties the right to assert target standing); Owen, 453 So. 2d at 1205 (finding target standing to
be applicable in circumstances of extremely egregious police misconduct that shocks the
conscience).
175 See generally Rakas v. Illinois, 439 U.S. 128, 128, 133 (1978) (holding that the petitioners
did not have standing under the Fourth Amendment where they failed to show any legitimate
expectation of privacy).
176 See id. at 133.
177 See id.

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