Answering Telephone During Illegal Police Search In An Apartment

In United States v. Congote, 656 F.2d 971 (5th Cir. Unit B 1981) the court considered the question of whether Congote had standing to assert a violation of other individuals' Fourth Amendment rights. Congote had telephoned an apartment where government agents were conducting an illegal search. the court found that by answering the telephone the agents "grossly exceeded" the Assistant United States Attorney's instructions to secure the residence. The court held that although the entry into the apartment and the act of answering a telephone may have been illegal, Congote possessed no reasonable expectation of privacy in the residence and, thus, had no standing to challenge the legality of the search of the apartment. Fourth Amendment rights are personal rights which may not be vicariously asserted. Rakas v. Illinois, 439 U.S. 128, 133-34, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978). A search may be challenged when a personal interest under the Fourth Amendment is asserted and a legitimate expectation of privacy is shown to exist in the area searched or the items seized. State v. Brown, 113 Idaho 480, 483-84, 745 P.2d 1101, 1104-05 (Ct. App. 1987). In determining whether an individual has standing to challenge a search, the question is whether governmental officials violated any legitimate expectation of privacy held by that individual. See Rawlings v. Kentucky, 448 U.S. 98, 106, 65 L. Ed. 2d 633, 100 S. Ct. 2556 (1980).