Police blatantly illegally searches Bob's house and finds very strong evidence that Bob and Rob independently committed a horrific crime each. A variation: the crime is the same and Bob and Rob committed it together.

Rob lives elsewhere and his rights, unlike Bob's, were not violated by the search.

Will Bob go free and Rob get prosecuted?

1 Answer 1


In order to challenge a search at trial via an evidence suppression motion, the particular defendant has to have Fourth Amendment "standing"1 with respect to that search: Rakas v. Illinois, 439 U.S. 128 (1978).

From the syllabus:

Fourth Amendment rights are personal rights which ... may not be vicariously asserted ... a person 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.

Subject to the various exemptions to the exclusionary rule discussed at this question, the evidence in your scenario would not be admissible against Bob, but would be admissible against Rob. This does not necessarily mean that Bob would go free. As noted in that other question, if police/prosecution have other evidence, independently gathered, or sufficiently attenuated from the illegal search, they may still have a case against Bob.

This also doesn't mean that an unconstitutional search of a person who will not even be prosecuted is without a remedy. See this answer for a discussion of civil remedies available for a person who has suffered an unconstitutional search.

1. The Court has distanced itself from the term "standing" in this context, so I am using it somewhat colloquially as it is still in common usage in this sense. The Court instead just conceives of whether the defendent even experienced a Fourth Amendment search; the notion of standing is either redundant with or subsumed by such analysis.

  • 5
    So if, say, your goal is to convict a particular person, like a mob boss, then the police could in principle just bust in and illegally search the property of all of his cronies en masse, without ever even attempting to get warrants, hoping to secure evidence that implicates him? Commented Dec 19, 2022 at 12:28
  • @zibadawatimmy If you want to keep the cops from finding damning evidence against you without a warrant, keep it in places that you control and have an expectation of privacy. Also, if it's likely that evidence would be found in the cronies' places, there's a good chance they can get the necessary warrants.
    – Barmar
    Commented Dec 19, 2022 at 16:09
  • @Barmar The original rationale for the exclusionary rule is to discourage overreach/bad conduct by investigators. The thought being that allowing evidence thus obtained provides a perverse incentive to ignore getting proper warrants. Timmy's comment posits a scenario which presents a similar perverse incentive allowed by the answer: Police can simply ignore following the rules as long as they don't charge the cronies directly. It's not about getting away with crimes, it's about examining things in light of discouraging the abuse of judicial process.
    – R.M.
    Commented Dec 19, 2022 at 17:04
  • @R.M. True, but AIUI, the exclusionary rule has long been whittled away by reference to places where the defendant has a reasonable expectation of privacy. They don't have any expectation of privacy in their crony's home, only the crony does. IANAL, I don't know if this loophole has been tested.
    – Barmar
    Commented Dec 19, 2022 at 17:08

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