Massachusetts State House.
Boston Bar Journal

Commonwealth v. DeJesus: The Abandonment of Separate Standing Under Article 14

February 09, 2023
| Winter 2023 Vol. 67 #1

By Eric A. Haskell

The guarantee against unreasonable searches and seizures that appears in both the Fourth Amendment of the federal Constitution and article 14 of the Massachusetts Declaration of Rights is a personal right. Its benefit inures to—and, typically, only to—the person who is searched.  Accordingly, exclusion of evidence as a remedy for an unconstitutional search has historically been available only if the defendant has standing to challenge that search.

The notion that a criminal defendant must have standing to bring a motion to suppress, even before a court even reaches the merits of the search’s constitutionality, is known as “separate standing.” In Commonwealth v. DeJesus, 489 Mass. 292 (2022), the Supreme Judicial Court abandoned the separate standing requirement under article 14, some 44 years after the U.S. Supreme Court had done so under the Fourth Amendment. This article explores the SJC’s path to DeJesus.

The Rise and Fall of Separate Standing Under the Fourth Amendment

In 1960, the Supreme Court held that, “to qualify as a ‘person aggrieved by an unlawful search and seizure’ one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.” Jones v. United States, 362 U.S. 257, 262 (1960). The Court later specified that a defendant has standing if he alleges a proprietary or possessory interest in the premises searched, or was present for the search. Brown v. United States, 411 U.S. 223, 229 (1973).

Nearly simultaneously, however, the law of the Fourth Amendment underwent a sea change. Prior to 1967, a search accomplished without any physical intrusion on person or property was viewed as beyond the scope of the Fourth Amendment. E.g., Olmstead v. United States, 277 U.S. 438, 466 (1928). In 1967, however, it was established that any search that violates the “reasonable expectation of privacy” of the person searched also violates the Fourth Amendment.  Katz v. United States, 389 U.S. 347, 360-61 (1967) (Harlan, J., concurring).

Separate standing, as defined in Jones and Brown, might have served some useful purpose before Katz. But the post-Katz analytical focus on expectation of privacy raised the question of whether standing was truly separate from the substantive constitutionality of the search.

The Jones/Brown analytical framework came to an end in 1978, when the Supreme Court concluded that there was no meaningful distinction between the scope of a defendant’s Fourth Amendment rights and the “invariably intertwined concept of [his] standing.”  Rakas v. Illinois, 439 U.S. 128, 139 (1978). And, in United States v. Salvucci, 448 U.S. 83, 89-93 (1980), the Court further cast doubt on whether separate standing was necessary to avert the defendant’s “dilemma” between admitting possession of contraband (i.e., to establish standing) and disputing possession of the contraband (i.e., to avoid establishing guilt), after the Court held in Simmons v. United States, 390 U.S. 377 (1968), that the government cannot use the defendant’s testimony at a suppression hearing as evidence during its trial case-in-chief.

The Rise of Separate Standing Under Article 14

The SJC had followed the Fourth Amendment’s separate standing requirement during the Jones/Brown era and, after Rakas, issued a series of opinions that avoided the need to decide whether such a requirement persisted under article 14. In 1990, however, the SJC embraced separate standing under article 14, criticizing “reasonable expectation of privacy” as a “manipulable standard,” and expressing concern that Simmons did not obviate the need for a separate standing analysis because a defendant’s testimony at a suppression hearing could still be used to impeach him at trial. Commonwealth v. Amendola, 406 Mass. 592, 599-601 (1990).

But separate standing under article 14 coexisted uneasily with the reasonable expectation of privacy standard. In one decision, the SJC appeared to conflate the two concepts. Commonwealth v. Mubdi, 456 Mass. 385, 392-93 (2010). Further, by the mid-2010s, Massachusetts courts increasingly were adjudicating searches of digital information held by third parties. The circumstances of these digital searches fit poorly with the SJC’s lingering requirement that, to have standing to challenge a search, a defendant must have “either a possessory interest in the place searched . . . or [have been] present when the search occurred.”  Commonwealth v. Williams, 453 Mass. 203, 208 (2009).

These analytical challenges came to the fore in Commonwealth v. Delgado-Rivera, 487 Mass. 551 (2021), a case in which the defendant’s inculpatory text messages were recovered through a search of the mobile telephone of a confederate to whom he had sent those messages.  The SJC unsurprisingly concluded that the defendant had no expectation of privacy in messages shared with his confederate. In reaching that conclusion, though, the SJC acknowledged “well-founded skepticism regarding the continued utility and applicability of the discrete, preliminary standing analysis set forth in our earlier jurisprudence.” And a strong concurrence by Justice Cypher emphasized that, “as digital searches become more common, the standing analysis, which encompasses the traditional notions of physical possession, may become strained.” Id. at 564.

The SJC Abolishes Separate Standing

After Delgado-Rivera, it came as little surprise that the SJC abolished the separate standing requirement less than one year later, in DeJesus.

In DeJesus, police observed on social media a depiction of the defendant brandishing a firearm.  That led the police to the basement of a multifamily dwelling, where the firearm was found inside an open backpack.  he defendant, who was also at the scene, was arrested and charged with possession of the firearm based on the social media depiction.

In affirming the defendant’s conviction, the SJC reiterated a point made in Delgado-Rivera: The separate standing requirement “poses a potential constitutional dilemma,” in that a defendant might lack standing to challenge the search of a place in which he enjoys a reasonable expectation of privacy. That dilemma, the SJC further observed, “is most likely to arise in the context of electronic data,” where “[a] defendant with a reasonable expectation of privacy in such data might have a difficult time asserting possession of it or presence at the time of the search.” In view of that dilemma, the SJC abandoned the separate standing requirement under article 14 and concluded, as had the U.S. Supreme Court in Rakas, that “a defendant need show only a reasonable expectation of privacy in the place searched to contest a search or seizure.”

DeJesus did, however, identify one limited circumstance in which a defendant may rely on another person’s expectation of privacy: Where the defendant is charged with a possessory offense but, at the time of the search, the contraband was in the actual possession of a confederate. This rule—a vestige of the old “automatic standing” rule, which DeJesus otherwise rendered obsolete—ensures that a defendant charged with a possessory offense may challenge the search that yielded the contraband.

Implications of DeJesus

DeJesus largely aligns the standing requirement of article 14 with that of the Fourth Amendment, a development that promises to streamline analysis of search and seizure issues. One aspect of DeJesus, however, promises to generate future debate. In a brief footnote that cited no authority, the SJC stated that defendants who, after DeJesus, “now will have to present a reasonable expectation of privacy in [a Criminal Rule 13] affidavit, may not be impeached with that affidavit at trial.”  489 Mass. at 293 n.4.

This “no impeachment” aspect of DeJesus is questionable. At the threshold, there is the odd question of whether that “no impeachment” rule applies only to defendants who are required to file a Rule 13 affidavit as a result of DeJesus, or whether it applies to all defendants who file such an affidavit going-forward. But, whatever the scope of its application, DeJesus’ “no impeachment” rule is inconsistent with the SJC’s own precedent, which holds that a defendant can indeed be impeached with inconsistent testimony given in an affidavit filed in connection with a motion to suppress. Commonwealth v. Rivera, 425 Mass. 633, 637-38 (1997) (“[B]ecause a defendant has no right to commit perjury, he or she cannot expect to give trial testimony markedly different from pretrial testimony with impunity.”). DeJesus’ “no impeachment” rule is also inconsistent with the weight of federal decisions, thus setting up a fresh disconnect between article 14 and the Fourth Amendment. See, e.g., United States v. Phillipos, 866 F.3d 62, 66 n.4 (1st Cir. 2017) (Thompson, J., dissenting from denial of rehearing en banc) (collecting cases). And DeJesus’ “no impeachment” rule raises concerns about the “integrity of the judicial process,” as it risks allowing a defendant to give self-contradictory testimony at different stages of the same proceeding without being subject to impeachment. See Rivera, 425 Mass. at 638 (“[W]e emphasize that, if a defendant chooses to file a pretrial motion accompanied by a supporting affidavit signed by the defendant, the only burden placed on the defendant is a permissible one—that he or she tell the truth.”). As such, this aspect of DeJesus seems likely to be the subject of future litigation.

Eric A. Haskell is a Massachusetts Assistant Attorney General.  He has previously written in these pages concerning the exclusionary rule (“Applying the Exclusionary Rule in the Face of Changing Law,” Winter 2017) and digital searches (“Gelfgatt, Jones, and the Future of Compelled Decryption,” Summer 2019).  This article represents the opinions and legal conclusions of its author and not necessarily those of the Office of the Attorney General; opinions of the Attorney General are formal documents rendered pursuant to specific statutory authority.