While the expectation of privacy within a car is lower than a person’s home, it still exists.

Alfonso Gambone
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A Philadelphia criminal defense lawyer representing accused persons throughout Pennsylvania and New Jersey.

Our law firm frequently represents individuals charged with criminal offenses following a traffic stop. In many of these cases, these accused persons face felony charges related to possession with the intent to distribute (PWID) controlled substances (prescription narcotics, heroin, crack cocaine), and illegal handgun or firearm offenses (VUFA).

Warrantless Searches – 4th Amendment Violation—Expectation of Privacy & Standing

These charges occur because police find this contraband within a car or motor vehicle during a warrantless search. As I’ve written in previous blogs, an accused person’s strongest defense is often a violation of his/her constitutional rights against illegal searches and seizures under the Fourth Amendment to the United States Constitution. To assert this right however, a person must have standing. Standing means that a person has an expectation of privacy within the property searched. While the expectation of privacy within a car is lower than a person’s home, it still exists. Without the expectation of privacy, a person has no standing and therefore no right to assert an illegal search and seizure.

A driver typically has an expectation of privacy in a car, we have received a number of questions regarding whether a passenger within that vehicle enjoys the same right. In Pennsylvania, courts have addressed the issue of passenger privacy and in the case of Commonwealth vs. Shabezz, the Pennsylvania Supreme Court ruled that passengers within a vehicle do maintain an expectation of privacy, just like the driver, provided that the evidence obtained is the result of an illegal stop of the vehicle. In the Shabezz case, the court found that the police didn’t have probable cause to stop the vehicle because what they observed was simple a group of men speaking with one another inside of the vehicle in a parking lot. While the officer in the case testified that he observed what appeared to be a drug transaction, the court found that this testimony wasn’t credible based on the officers distance between the observation point and the alleged transaction (45 feet).

Automatic Standing For Passengers – Federal vs. Pennsylvania

Unlike the federal government and the US Constitution, Pennsylvania has retained the concept of “automatic standing”. While it doesn’t technically make a passenger defendant eligible for a Fourth Amendment claim, it still gets them past the issue of standing. Basically, a passenger has the same right to a Fourth Amendment claim as the driver but still must prove a lack of reasonable suspicion or probable cause for a stop or a lack of probable cause for a search. A passenger doesn’t need to show an ownership or possessory interest in the premises or items searched.

Trial Argument – Actual vs. Constructive Possession

Even if a passenger defendant is unsuccessful during a motion to suppress, the prosecution must still establish either actual or constructive possession of the contraband in question. If, for example, the drugs are found within the center console of a vehicle between a passenger and a driver, the passenger or the driver’s attorney each may be able to successfully argue reasonable doubt with regards to the possession of that item. The argument may be stronger for a passenger if he has no other connection to the vehicle but simply being a passenger at the time of the traffic stop.


If you’re charged with a gun or drug crime in Pennsylvania or New Jersey, it is important that your attorney have a strong understanding of probable cause, reasonable suspicion, the expectation of privacy, and standing. These are all critical issues in a judge or jury trial. For more information please keep reading this blog and visit my free download section.

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