A person test driving a car does not have standing to object to a search


In 2001, Chief of Police Jim Moore stopped Harold D. McKee for driving a truck with an expired registration tag. McKee exited the vehicle and met Moore outside. Moore asked for a driver’s license and after a few moments, McKee admitted he did not possess one. Moore noted the scent of alcohol on McKee’s breath and asked McKee if he had been drinking. McKee admitted to having consumed one beer.

Moore approached McKee’s truck and looked in the passenger window. In addition to a passenger, Billy Stewart, Moore observed an open beer container on the floorboard and a six-ring plastic drink can holder protruding from a brown paper bag on the seat approximately halfway between driver and passenger. Moore lifted the bag and spotted a pill bottle containing several rocks of crack cocaine.

Officer Chad Arthur arrived, advised McKee of his Miranda rights and transported him to the police station. Chief Moore arrived at the station at approximately the same time and both officers were present when McKee was processed. McKee was directed to empty his pockets. One of the items McKee removed from his pockets was another pill bottle which also contained crack cocaine.

Arthur also found a crack pipe and an antenna, often used for cleaning crack pipes, in the backseat of his vehicle after transporting McKee to the police station.

McKee was convicted of possession of cocaine and sentenced to 12 years. On appeal, he argued the search of the car and his person was illegal. MCOA affirmed.


A. Plain view

In Minnesota v. Dickerson, 508 U.S. 366 (1993) the U.S. Supreme Court said that no warrant is required to seize an object in plain view when viewed by an officer from a place he has the lawful right to be, its incriminating character is readily apparent (probable cause) and the officer has a lawful right of access to the evidence.

Chief Moore had legally stopped McKee for a traffic violation. He smelled alcohol on McKee’s breath and saw an open container of alcohol in the vehicle from his position outside the vehicle on the side of a public thoroughfare, a place Chief Moore was obviously legally entitled to be. Chief Moore also saw other evidence of alcohol in the form of a plastic, six-ring can holder, used to secure beer, among other beverages, prior to sale. Under the plain view doctrine, Moore was entitled to seize this evidence without a warrant.

In Northington, we said the presence of alcohol and olfactory suggestion of its consumption gave sufficient probable cause to also search the vehicle.

If, in the process of making that legitimate search and seizure, Moore uncovered evidence of another crime, as he did here, he is not required to ignore such evidence nor does the Fourth Amendment require its suppression.

B. Standing

Even had probable cause been absent, McKee would have no standing to complain. As he repeatedly points out in his briefs, McKee was not the owner of the vehicle at the time of his arrest, he was merely test-driving it in order to determine whether he wished to purchase it.

In Rakas v Illinois, 439 U.S. 128 (1978), the U.S. Supreme Court said that Fourth Amendment rights are personal ones and a defendant may not seek to suppress evidence through a complaint that the constitutional rights of a third party have been violated, in this case the right of the actual owner of the vehicle to be free of a warrantless search.

C. Search incident to arrest

In United States v. Robinson, 414 U.S. 218 (1973), the U.S. Supreme Court said that an officer has the right to conduct a search of a defendant’s person incident to a lawful arrest. That McKee was directed to empty his pockets rather than have them emptied for him does not change the nature of the search.