©2012 Brian S. Batterton, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
On July 31, 2012, the First Circuit Court of Appeals decided the United States v. Symonevich [i] and held that a passenger in an automobile, which he does not own, has no reasonable expectation of privacy in an object that he places under the front seat. The facts of Symonevich, taken directly from the case, are as follows:
Massachusetts State Trooper Sweeney, was patrolling and observed a broken side tail light on the green Subaru in which Symonevich was traveling. Sweeney pulled his police cruiser up behind the Subaru and initiated a stop by activating his blue lights. As he turned on his lights, Sweeney observed the passenger, Symonevich, “lean down as if placing or retrieving something from underneath his seat.” Sweeney testified that this movement caused him concern for his safety. The Subaru slowly pulled into the breakdown lane and stopped. Sweeney approached the vehicle on the passenger’s side where he observed Symonevich in the passenger seat looking “completely ashen faced” and “scared to death.”
Sweeney asked Symonevich and the driver, later identified as Gerard Adair, where they were going. Adair first said that he had been visiting his grandmother. In response to further questioning, he stated that he had met a girl online and was going to meet up with her but could not find her. Sweeney asked Symonevich if he was related to Adair. Symonevich responded that he was just going for a ride with his friend. When Sweeney asked Adair for his license and registration, he observed that Adair’s hand was shaking as he handed Sweeney his driver’s license. Sweeney returned to his cruiser to run a record check and radioed for backup. Trooper Sweet arrived shortly thereafter.
After informing Sweet of his observations, Sweeney went back to the Subaru and asked Symonevich to exit the vehicle. Symonevich complied. As Symonevich exited, Sweeney and Sweet smelled the stale odor of marijuana coming from Symonevich’s clothing. Sweeney took Symonevich to the rear of the Subaru and asked him why he had reached under the seat as Sweeney pulled them over. After he first said that he was putting a piece of paper down, Symonevich revised his statement, saying that he had actually put a can of fix-a-flat under the seat. Sweeney asked Symonevich why he had the can. Symonevich responded that he had it “in case we get a flat.” Sweeney told Symonevich that his answer gave him concern for his safety. Although Symonevich was not under arrest, Sweeney wanted him to sit in the back of the police cruiser while Sweeney spoke to Adair. Symonevich complied.
Sweeney approached Adair and asked what Symonevich had put under the seat. Adair said that he did not know. Sweeney asked if there were weapons in the car. Adair replied, “Not that know of.” Sweeney asked permission to search the car and Adair declined. Sweeney nevertheless searched the car because he wanted to be sure there was nothing under the seat that posed a safety threat. About three-quarters of the way through the stop, Sweeney got a radio call informing him that Symonevich was also the subject of an ongoing DEA investigation.
Sweeney looked under the passenger seat and found a can of tire puncture sealant. He picked it up and observed that the weight was not consistent with a can of tire sealant. Sweeney shook the can and felt something solid move around inside. He looked at the bottom of the can, saw that it was slightly separated from the can, unscrewed the bottom, and found a wad of paper towels and three bundles of brown substances that he believed to be packages of heroin.1 Sweeney placed Symonevich and Adair under arrest. [ii]
Symonevich, in part based on an active DEA investigation, was charged with federal drug offenses. He filed a motion to suppress the heroin found in the can which the district court denied. He appealed the denial of the motion to suppress to the First Circuit Court of Appeals. On appeal, Symonevich raised three arguments specifically related to the search.
Symonevich’s first argument was that, as a passenger in a vehicle, he had a reasonable expectation of privacy in the items seized from the vehicle and as such, had standing to challenge the search of the vehicle. Specifically, he argued that the United States Supreme Court’s holding in Arizona v. Johnson [iii] supports his argument. In Johnson, the Supreme Court held that a passenger is “seized” just like a driver during a traffic stop the moment a car comes to a halt. [iv]
However, to this argument, the First Circuit noted that Symonevich does not argue that the traffic stop was illegal and that he was seized as the product of an unlawful traffic stop. Rather, he argues that the he possesses a reasonable expectation of privacy as a passenger in a car that he does not own. To this argument, the First Circuit stated that Symonevich can only assert the Fourth Amendment’s protection from unreasonable searches if he can show that he possessed a reasonable expectation of privacy in the vehicle that was searched. The First Circuit, citing the Supreme Court in Rakas v. Illinois, stated:
In the context of a vehicle search, a passenger who has “asserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized,” has made no showing that he or she has a legitimate expectation of privacy in, for example, the area under the seat of the car in which he or she was “merely [a] passenger.” Id. at 148. Under such circumstances, a vehicle search does not infringe upon the passenger’s Fourth Amendment rights. [v]
As such, the First Circuit held that Symonevich did not have standing to contest the lawfulness of the search.
Symonevich’s second argument supporting his contention that he should be afforded a reasonable expectation of privacy in Adair’s vehicle was that the duration of the trip entitled him to a reasonable expectation of privacy in the vehicle. Symonevich’s trip from Maine to Massachusetts was about six hours round trip. He argued that just as overnight guests in homes possess a reasonable expectation of privacy in the home in which they are a guest, a passenger on long car trip should be afforded similar constitutional protection. However, the First Circuit noted that homes, which are the center of the private lives of people are not analogous to automobiles that travel on public roadways where the vehicle and its passengers are in plain view. The First Circuit then held:
Any analogy between an automobile and a house is suspect. In any event, without categorically rejecting the relevance of the duration of a trip in an automobile to the reasonable expectation of privacy analysis, we conclude that the duration of the trip here, under all of the circumstances, did nothing to enhance Symonevich’s expectation of privacy. [vi]
As such, the court rejected Symonevich’s argument.
Lastly, Symonevich argued that he had a possessory interest in the can of fix-a-flat in which the heroin was found that possessory interest gave him a reasonable expectation of privacy. However, the First Circuit stated:
[E]ven if Symonevich had demonstrated a possessory interest in the can, that interest would not establish a reasonable expectation of privacy in the space beneath the passenger seat. Whether or not Symonevich had a possessory interest in the can, he placed the can under the seat, an area in which he had no reasonable expectation of privacy. See Rawlings v. Kentucky, 448 U.S. 98, 105-106, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980) (citing Rakas, 439 U.S. at 149-50 n.17). As the Rawlings Court noted, “[h]ad [the] petitioner placed his drugs in plain view, he would still have owned them, but he could not claim any legitimate expectation of privacy.” Id. at 106. Here, too, the petitioner may have owned the can of tire sealant that contained the drugs. As a passenger in the vehicle, however, he lacked a reasonable expectation of privacy in the space beneath the car seat for the reasons already discussed. Symonevich’s alleged possessory interest does not strengthen his expectation of privacy argument. [vii]
Thus, the First Court of Appeals held that Symonevich, as a passenger in a vehicle in which he did not have a possessory interested, did not possess a reasonable expectation of privacy in the area under his seat where the heroin was located.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 11-1236, 2012 U.S. App. LEXIS 15804 (1st Cir. Decided July 31, 2012)
[ii] Id. at 4-6
[iii] 555 U.S. 323 (2009)
[iv] Johnson, 555 U.S. 332
[v] Symonevich at 10-11
[vi] Id. at 15-16
[vii] Id. at 17-18