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Expectation of Privacy – Generally: Proof of (and: “Standing” Contrasted)

State v. David Allen Bruski, 2007 WI 25, affirming 2006 WI App 53
For Bruski: Margaret A. Maroney, SPD, Madison Appellate


¶20 …Bruski, as the proponent of a motion to suppress, has the burden of establishing that his Fourth Amendment rights were violated by the search. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980); Rakas v. Illinois, 439 U.S. 128, 130 n. 1 (1978). [1]

¶21 To have a Fourth Amendment claim, the proponent must initially satisfy two requirements. First, the search must have been done by a government agent. …

¶22 Second, an individual must have standing. [2] Rakas, 439 U.S. at 140. There is not a bright-line test for determining when an individual has standing, but standing exists when an individual has a reasonable expectation of privacy. Id. at 144. The proponent of a Fourth Amendment claim bears the burden of proving that he or she had a reasonable expectation of privacy. State v. Whitrock, 161 Wis. 2d960, 972, 468 N.W.2d696 (1991) (citing Rawlings, 448 U.S. at 104). [3]

[1] … This court generally follows the United States Supreme Court’s interpretation of the search and seizure provision of the Fourth Amendment in construing Article I, Section11 of the Wisconsin Constitution. State v. Young, 2006 WI 98, ¶30, _ Wis. 2d _, 717 N.W.2d729.[2] Fourth Amendment standing differs from traditional notions of standing. Fourth Amendment standing analysis “focuses on the extent of a particular defendant’s rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing.” Rakas v. Illinois, 439 U.S. 128, 139 (1978). Defining an individual’s Fourth Amendment rights “is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.” Id. at 140. Standing, in the context of the Fourth Amendment, refers to a threshold substantive determination, which is distinct from Article III standing.

[3] In his brief, Bruski urged the court to overrule State v. Callaway, 106 Wis.2d 503, 317 N.W.2d 428 (1982), and construe Article I, Section 11 of the Wisconsin Constitution to confer automatic standing to defendants charged with possession of illegal material. … Given our agreement with the United States Supreme Court that “‘Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted,'” Rakas, 439 U.S. at 133-34 (internal citation omitted), we continue to follow the Court’s interpretation of the Fourth Amendment when construing Article I, Section 11 of the Wisconsin Constitution.


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