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Constitutional Rights are Not Always Transferable

Posted on Jun 26, 2009

The Bill of Rights to the Constitution provides many protections to citizens regarding their person, property, and privacy.  Most famous are the Fifth Amendment Right Against Self Incrimination and the Fourth Amendment Rights Against Unlawful Search and Seizure.   However, many people do not realize how limited these rights can be to that person; another person cannot necessarily "coat-tail" onto someone else's rights and protections.

A recent New Jersey Supreme Court opinion in the case of State v. Baum illustrates this point rather well.  In that case, the police pulled over a car and questioned the driver at the scene over a prolonged period of time.  During the questioning, the driver made statements that resulted in the recovery of  cocaine and marijuana inside the car. A passenger in the vehicle, who was also arrested and charged with drug possession, filed a motion to suppress, arguing that the police obtained the information about the drugs illegally by violating the driver's Miranda rights and conducting a warrantless search of the car.

The Supreme Court rejected the Fifth Amendment argument and ruled that both federally and in New Jersey, that privilege is purely personal with the defendant that makes the incriminating statement and does not extend to protect third parties.  In other words, the driver could not be forced to incriminate herself, but she could incriminate others all she wanted.  As to the claim of unlawful search and seizure, however, the court did hold that the passenger could claim that, based on an expectation of privacy.  However, they found that there was sufficient probable cause to conduct the search under the overall circumstances of the stop and the evidence gathered afterwards.

Fourth Amendment rights can be limited to the person, however.  For example, say the police search someone's home without a warrant and find a weapon in a closet that is subsequently tied by ballistics to a recent armed robbery, and fingerprints on the handle lead them to a suspect who does not live in the home searched.  If no probable cause for the search is found, the police may not be able to use it to charge the homeowner, but they may well be able to go after the armed robber, whose privacy rights have not been violated.