WILLIAMS, C.J.
The issue in this case is what should be the proper test for standing to seek suppression of illegally seized evidence where the requirements for both standing and the offense charged involve proof of a possessory interest. This issue relates to the police seizure of a stolen trailer from the open access parking lot of an abandoned restaurant. As to whether the defendant in this case has standing to challenge the search and seizure of that trailer, due to the inadequacy of the record we think it appropriate to remand this case to the trial court for a new suppression hearing. In addition, since the determination of the standing issue may make it unnecessary to resolve a second issue of whether the evidence resulting from the seizure should have been excluded, we will not reach this latter issue.
Defendant claimed "automatic standing," citing People v Godwin, 94 Mich. App. 286; 288 N.W.2d 354 (1979), and arguing that because Const 1963, art 1, § 11 varies slightly from US Const, Am IV, it requires a more liberal interpretation. Godwin relied on Jones v United States, 362 U.S. 257; 80 S Ct 725; 4 L Ed 2d 697 (1960). Plaintiff contended that the test of "reasonable expectation of privacy" set forth in United States v Salvucci, 448 U.S. 83; 100 S Ct 2547; 65 L Ed 2d 619 (1980), which overruled the "automatic standing" test of Jones, applies.
The defendant does not argue that he has "standing" to challenge the seizure under Am IV of the United States Constitution. US Const, Am IV; US Const, Am XIV. Since today we adopt a standard nearly identical to the federal standard, see United States v Salvucci, 448 U.S. 83; 100 S Ct 2547; 65 L Ed 2d 619 (1980); Rakas v Illinois, 439 U.S. 128; 99 S Ct 421; 58 L Ed 2d 387 (1978), defendant's "standing" rights under the federal constitution will be the same as those under the Michigan Constitution.
For this Court, this issue under art 1, § 11 of the Michigan Constitution is for all intents and purposes an issue of first impression since Jones and Salvucci. For the United States Supreme Court, this issue under Am IV was settled in Salvucci. Under Salvucci, pp 92, 95, the test for standing is a "reasonable expectation of privacy." Furthermore, Salvucci, p 85, expressly overruled the Jones test of "automatic standing."
This Court's first inquiry must be whether there are any policy considerations which commend the "automatic standing" test over the "reasonable expectation of privacy" test, and whether anything in the differences in language between art 1, § 11 and Am IV requires us to choose one test over the other. Upon consideration, we conclude that there are no policy considerations which incline us to adopt the "automatic standing" test and that there is nothing in the differences in language between art 1, § 11 and Am IV that requires or suggests the adoption of the "automatic standing" test. We adopt a "reasonable expectation of privacy" test consonant with our search and seizure precedents. We reverse the judgment of the Court of Appeals and overrule Godwin.
Of course, it is not necessary that the wording of the Michigan Constitution be different from that of the United States Constitution in order for this Court to interpret our constitution more liberally than the United States Supreme Court interprets the language of the federal constitution. It is true that this Court cannot interpret a similar provision in the Michigan Constitution less liberally than the United States Supreme Court interprets the United States Constitution, but the opposite is not true. Cf. People v Beavers, 393 Mich. 554, 562; 227 N.W.2d 511 (1975), with United States v White, 401 U.S. 745; 91 S Ct 1122; 28 L Ed 2d 453 (1971) (participant monitoring). See also People v Turner, 390 Mich. 7; 210 N.W.2d 336 (1973) (entrapment); People v White, 390 Mich. 245; 212 N.W.2d 222 (1973) (double jeopardy). To the extent that People v Secrest, 413 Mich. 521; 321 N.W.2d 368 (1982) (discussed below) implies that this Court can impose a higher standard under the state than the federal search and seizure provision only because of differences in language, it is obviously wrong. Furthermore, Secrest does not show how the differences in language justify a higher standard under the Michigan Constitution. The point here, however, is that there is no difference in art 1, § 11 that compels a different interpretation and there is no persuasive policy reason to commend a different interpretation in this Court's discretion.
I. FACTS
Defendant Smith was charged with receiving and concealing stolen property of a value over $100, to wit: a 45-foot van-type trailer. MCL 750.535; MSA 28.803. Following the preliminary examination, defendant, inter alia, filed a motion to suppress the trailer as evidence against him. Thereafter, an evidentiary hearing was conducted at which only one witness testified. That witness, Norman Anderson, was an investigator from the Wayne County Prosecutor's Office.
In October of 1979, Mr. Anderson was provided with information concerning the theft of certain automobile transmissions. He learned that the stolen transmissions had been sold to a company in Dallas, Texas. In November of 1979, Mr. Anderson went to Dallas to investigate this report. He interviewed several employees of the recipient company. He was told that two tractor-trailer rigs had delivered the transmissions. One of the tractors was a Peterbilt and the other was a Kenworth. The trailers were silver and appeared to be new. In addition, Mr. Anderson received four checks that had been given to the drivers of the vehicles in payment for the transmissions. One of the checks had been made payable to a Mr. Carr, and the other three were made payable to defendant Smith. The checks were indorsed by the parties and were marked with their operator license numbers. All of the checks had been cashed. These facts were the basis of a different case against Messrs. Carr and Smith.
Several days after Mr. Anderson returned to Detroit, an attempt was made to locate Mr. Carr and defendant Smith. On the morning of November 14, 1979, while in the company of FBI agent Tom Love and State Police officer Lyle Schroeder, Mr. Anderson went to Mr. Carr's residence on Gainesboro, four and one-half blocks from Avon and Grand River in Detroit. They knocked on Mr. Carr's door, but no one answered. The officers drove away, and at the intersection of Avon and Grand River they saw two tractor-trailer rigs parked in an abandoned restaurant lot. There was a fence around the lot, with two large openings in it for access. Upon closer inspection of the vehicles, the officers observed that one of the tractors was a Kenworth and the other was a Peterbilt. Inside the window of the Peterbilt, one of the officers saw a nameplate bearing defendant Smith's name. The trailers looked relatively new. The Kenworth tractor was still attached to one of the trailers, and the Peterbilt was parked immediately in front of the second trailer. The first trailer bore vehicle identification numbers (VIN) indicating that it was a Fruehauf. The other trailer was unmarked except for two mud flaps on which were printed the name Fruehauf.
The officers ran a check on the license plates of the vehicles. They learned that the license plates on both trailers were registered to defendant Smith. In addition, although the plates had different numbers on them, they had both been assigned to the same Fruehauf trailer. The officers located the VIN on the first trailer and discovered that it was the trailer to which both license plates had been assigned. They were unable to find the VIN on the second trailer. They found the spot where the VIN plate is normally located, but the plate had been removed. The rivet marks were still apparent. The trailer also looked as though it had recently been painted.
Mr. Anderson left the scene and returned to the police station. The State Police officer remained at the scene. In an effort to find out where the hidden VIN on the second trailer might be, Mr. Anderson attempted to contact someone in the commercial theft department. Mr. Anderson was unsuccessful in his attempt and thus decided to call Fruehauf. An employee of the company told him where the hidden VIN was located on Fruehauf trailers. Mr. Anderson returned to the parking lot. He had been gone for approximately 1 to 1-1/2 hours.
When Mr. Anderson arrived at the lot, he crawled under the second trailer to look for the hidden VIN, but he was unable to find it. Apparently, different manufacturers put the hidden VIN in different locations. The officers then compared the physical appearance of the first trailer, which they knew to be a Fruehauf, with that of the second trailer. The two trailers were substantially dissimilar. The officers concluded that the second trailer was not in fact a Fruehauf. The officers then called a tow truck to have the trailer removed. About 1 to 1-1/2 hours later, the tow truck arrived. The trailer was towed to Cover Service in Romulus. One of the officers called the National Auto Theft Bureau to have the trailer identified. Personnel from the bureau arrived the next day, located the hidden VIN, and confirmed that the trailer was stolen.
Mr. Anderson testified that approximately 3 to 3-1/2 hours elapsed from the time he first saw the trailer until the time the trailer was towed away. Mr. Anderson further stated that after they first discovered the trailer, they discussed the possibility of obtaining a search warrant, but decided against it. No search warrant of any kind was ever obtained.
Upon the basis of the above information, the trial court granted defendant's motion to suppress, ruling that the officers should have obtained a warrant before they seized the trailer. On appeal, the prosecutor contended that defendant lacked "standing" to challenge the propriety of the seizure. The Court of Appeals rejected this argument, holding that defendant had "automatic standing" to challenge the seizure under art 1, § 11 of the Michigan Constitution, and that the police were obliged to obtain a warrant before they seized the trailer. People v Smith, 118 Mich. App. 366; 325 N.W.2d 429 (1982).
We note at this juncture that defendant contends that this Court should not have reviewed the "standing" issue because the prosecution did not raise the issue in the trial court. Normally, this Court will not consider issues not raised both in the trial court and the Court of Appeals. See People v Crawl, 401 Mich. 1, 30-32, and fn 20; 257 N.W.2d 86 (1977) (opinion of LEVIN, J.). In fact, in People v Tyler, 399 Mich. 564, 571; 250 N.W.2d 467 (1977), aff'd 436 U.S. 499, 512, fn 7; 98 S Ct 1942; 56 L Ed 2d 486 (1978), we declined to review the exact issue present herein because the prosecutor failed to raise it in the Court of Appeals. See also People v Warner, 401 Mich. 186; 258 N.W.2d 385 (1977). In the instant case, the prosecutor did raise the issue in the Court of Appeals. Because we agree with the Court of Appeals that the resolution of this issue is necessary to a proper determination of the case, 118 Mich. App. 370, and because this issue has caused much confusion and courts have failed to apply the true rule of law, People v Crittle, 390 Mich. 367, 371; 212 N.W.2d 196 (1973), we consider it at this time. See People v Crawl, supra, pp 30-32, and fn 20 (opinion of LEVIN, J.). And see State v Hutchinson, 404 So.2d 361, 365-366 (Fla App, 1981).
II. DEFENDANT'S CONTENTION AS TO STANDING
To begin with, the issue here is not whether the government had the right to seize the trailer. The issue is whether the defendant had "standing" to object to the introduction of evidence of the results of that seizure.
"Standing has been called one of `the most amorphous [concepts] in the entire domain of public law.'" Flast v Cohen, 392 U.S. 83, 99; 88 S Ct 1942; 20 L Ed 2d 947 (1968). "Standing" relates to civil as well as criminal matters. The basis for "standing" to challenge a search or seizure may be possession, physical location, or right to privacy, among others.
See, e.g., Shavers v Attorney General, 402 Mich. 554, 586 ff.; 267 N.W.2d 72 (1978), cert den sub nom Allstate Ins Co v Kelley, 442 U.S. 934; 99 S Ct 2869; 61 L Ed 2d 303 (1979).
See, e.g., People v Warner, 401 Mich. 186, 200-209; 258 N.W.2d 385 (1977).
See, e.g., People v Norwood, 312 Mich. 266, 272; 20 N.W.2d 185 (1945).
See, e.g., People v Gonzales, 356 Mich. 247, 257; 97 N.W.2d 16 (1959).
See, e.g., Salvucci, supra, pp 92, 95.
Defendant contends there is another and different basis for standing from any of the above, i.e., "automatic standing," "where the defendant is charged with an offense that includes as an [essential element of the] offense charged the possession of seized evidence at the time of the contested search and seizure." Defendant relies on the Michigan Court of Appeals case of People v Godwin, supra. Godwin relied on Jones v United States.
Defendant's claim on the merits was accepted by the trial court. 118 Mich. App. 374.
It is true that both Godwin and Jones support defendant's contention. However, the "automatic standing" rule of Jones was limited in Rakas v Illinois, 439 U.S. 128, 142-143; 99 S Ct 421; 58 L Ed 2d 387 (1978), and overruled in United States v Salvucci, supra, p 85. Defendant, however, does not discuss the federal law and relies on Const 1963, art 1, § 11 and Godwin rather than on US Const, Am IV.
See fn 1.
If defendant convinces us that the rationale in Godwin and Jones is superior to that in Rakas and Salvucci and that Const 1963, art 1, § 11 should be construed to grant defendants greater "standing" rights than they possess under US Const, Am IV, we should consider adopting the "automatic standing" rule. However, we are not so convinced on either score.
Defendant's arguments for his rationale fail to persuade us for at least the following three reasons:
1. The self-incrimination rationale on which Godwin and Jones rely is inapplicable because, in fact, trial procedures protect defendant against self-incrimination.
2. The "automatic standing" rule attempts to invoke an art 1, § 11-Am IV right vicariously, but the art 1, § 11-Am IV right, like other rights, is personal.
3. While we have on occasion interpreted art 1, § 11 more liberally than the United States Supreme Court has interpreted Am IV, we do not find anything in the differences in language between the state and federal constitutions or in our precedents that requires us to adopt defendant's position.
See fn 2.
III. SELF-INCRIMINATION RATIONALE FOR STANDING IS INAPPLICABLE
The first reason for rejecting defendant's rationale for suppression is that it relies on the right against self-incrimination, but there is actually no self-incrimination involved. Defendant urges the "automatic standing" rule to protect against placing the defendant in a so-called "dilemma." The "dilemma" was posited by the United States Supreme Court in Jones v United States, supra, p 262, to support the adoption of the "automatic standing" rule under the Fourth Amendment. It was premised upon the fact that various federal circuit courts of appeal at that time had required the defendant to have "standing," either to "have owned or possessed the seized property or to have had a substantial possessory interest in the premises searched." Jones, supra, p 261. Since at that time there was no rule barring the admission against the defendant at trial of evidence introduced at a suppression hearing, the defendant frequently found himself faced with the "dilemma" of choosing between establishing "standing" by alleging that he possessed the item, thereby risking the possibility that such evidence would be used against him at trial, or not establishing "standing" and not being permitted to seek suppression of illegally obtained evidence. The Jones Court found this situation intolerable in cases where possession of the seized evidence was an essential element of the charged offense. In these cases, possession would both confer "standing" and convict. Therefore, the Jones Court sought to remedy this situation by giving the defendant "automatic standing" to seek the suppression of evidence.
It should be noted that although the Jones Court relied in substantial part on Rule 41(e) of the Federal Rules of Criminal Procedure, the decision has subsequently been interpreted as being equally applicable to the "standing" required by the constitution to attack an unconstitutional search or seizure. See Rakas v Illinois, supra, p 132, fn 2, citing United States v Calandra, 414 U.S. 338, 348-349, fn 6; 94 S Ct 613; 38 L Ed 2d 561 (1974), and Alderman v United States, 394 U.S. 165, 173, fn 6; 89 S Ct 961; 22 L Ed 2d 176 (1969).
In the instant case, defendant does not allege that he has been pinioned by this "dilemma." In fact, in the wake of Simmons v United States, 390 U.S. 377, 390-394; 88 S Ct 967; 19 L Ed 2d 1247 (1968), no defendant can find himself faced with this "dilemma." The Simmons Court held that pursuant to the federal constitution a defendant's suppression hearing testimony cannot be used as evidence of guilt against the defendant at trial. We have recognized the principle set forth in Simmons, and we reaffirm our commitment to that principle. See People v DeClerk, 400 Mich. 10, 18-19; 252 N.W.2d 782 (1977). As a consequence, the fundamental tenet upon which the "dilemma" was posited has been eliminated, and along with it the "dilemma" itself. See United States v Salvucci, supra, pp 89-90. See also Brown v United States, 411 U.S. 223, 228; 93 S Ct 1565; 36 L Ed 2d 208 (1973). Therefore, we cannot accept the "dilemma" as supporting the adoption of the "automatic standing" rule.
Referring to Simmons, where the defendant's suppression hearing testimony was used against him at trial in the government's case in chief, the Court in United States v Salvucci, supra, pp 89-90 stated:
"The Court found that, in effect, the defendant was
"`obliged either to give up what he believed, with advice of counsel, to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination. In these circumstances, we find it intolerable that one constitutional right should have to be surrendered in order to assert another. We therefore hold that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.' [Simmons], at 394.
"This Court's ruling in Simmons thus not only extends protection against this risk of self-incrimination in all of the cases covered by [the "automatic standing" rule], but also grants a form of `use immunity' to those defendants charged with nonpossessory crimes. In this respect, the protection of Simmons is therefore broader than that of [the "automatic standing" rule]. Thus, as we stated in Brown v United States, 411 U.S. 223, 228; 93 S Ct 1565; 36 L Ed 2d 208 (1973), `[t]he self-incrimination dilemma * * * can no longer occur under the prevailing interpretation of the Constitution [in Simmons].'"
The Court of Appeals in this case chose to follow the rationale of Justices Marshall and Brennan in their dissent in Salvucci. 118 Mich. 374. In his opinion, Justice Marshall argued:
"I cannot agree that Simmons provides complete protection against the `self-incrimination dilemma' * * *. Respondents contend that the testimony given at the suppression hearing might be held admissible for impeachment purposes and, while acknowledging that that question is not before us in this case, the majority broadly hints that this is so. * * * The use of the testimony for impeachment purposes would subject a defendant to precisely the same dilemma, unless he was prepared to relinquish his constitutional right to testify in his own defense, and would thereby create a strong deterrent to asserting Fourth Amendment claims. * * * Simmons, therefore, does not eliminate the possibility that a defendant will be deterred from presenting a Fourth Amendment claim because of `the risk that the words which he utters may later be used to incriminate him.'" 448 U.S. 96, 97.
With due respect to the Court of Appeals and Justices Marshall and Brennan, we cannot agree that the possibility of defendant's testimony in favor of suppression being used to impeach him in the main trial justifies the "automatic standing" rule. It is one thing to protect a defendant from the dilemma of having to testify that there was possession to obtain standing at the cost of having that testimony used to incriminate him at trial. It is an entirely different proposition to give defendant protection against exposure of his lying at trial by denying the use of his suppression motion testimony. See People v Graham, 386 Mich. 452; 192 N.W.2d 255 (1971); Harris v New York, 401 U.S. 222; 91 S Ct 643; 28 L Ed 2d 1 (1971). However, we agree with the majority in Salvucci that the issue whether the Simmons privilege should extend to exclude such impeachment is best treated in a proper case. Salvucci, supra, p 94.
Defendant also suggests that Simmons is not broad enough because it does not protect against the possibility that the prosecutor's access to suppression hearing testimony could provide him with information advantageous to trial preparation. This argument, however, is applicable to nonpossessory as well as possessory offenses, and hence in order to protect against such a possibility, "automatic standing" would have to be accorded to all defendants. Even the defendant herein does not advocate that we adopt such a posture. See United States v Salvucci, supra, p 93, fn 7.
In sum, we do not find merit in any of the above arguments advanced that defendant should have "automatic standing" to argue suppression of evidence because of an allegedly illegal search or seizure, because with the Simmons change in procedure the defendant's right against self-incrimination is not jeopardized.
IV. CONSTITUTIONAL RIGHTS ARE PERSONAL ONLY
The second reason for rejecting defendant's rationale for suppression is that the "automatic standing" rule attempts to invoke the rule for suppression of illegal search or seizure evidence vicariously, although the art 1, § 11-Am IV right is personal. At the outset, we note that constitutional protections are generally personal. They cannot be asserted vicariously, but rather only "at the instance of one whose own protection was infringed by the search and seizure." Simmons v United States, supra, p 389. This Court enunciated this principle as follows:
"The right to suppression is personal to the one whose right to privacy was violated." People v Warner, 401 Mich. 186, 203; 258 N.W.2d 385 (1977) (opinion of WILLIAMS, J.).
Stated differently, only an individual who "belongs to the class for whose sake the constitutional protection is given" can seek to invoke its protection. New York ex rel Hatch v Reardon, 204 U.S. 152, 160; 27 S Ct 188; 51 L Ed 415 (1907). See People v Warner, supra, pp 203, 209; People v Norwood, 312 Mich. 266, 272; 20 N.W.2d 185 (1945), and cases cited therein; People v Oaks, 251 Mich. 253, 255; 231 N.W. 557 (1930); People v Joshua, 32 Mich. App. 581, 585; 189 N.W.2d 105 (1971), lv den 386 Mich. 758 (1971), cert den 409 U.S. 853; 93 S Ct 183; 34 L Ed 2d 96 (1972); United States v Salvucci, supra, p 86; Rakas v Illinois, supra, pp 133-134; Brown v United States, supra, p 230; Alderman v United States, 394 U.S. 165, 171-172, 174; 89 S Ct 961; 22 L Ed 2d 176 (1969); Simmons v United States, supra, p 389; Jones v United States, supra, p 261. In urging us to embrace the "automatic standing" rule, defendant is necessarily advocating a departure from the above well-settled principles because the "automatic standing" rule would provide a defendant with "standing" regardless of whether he was asserting his own rights or those of another. See Rakas v Illinois, supra, p 135, fn 4.
V. SHOULD THE MICHIGAN CONSTITUTION BE INTERPRETED MORE LIBERALLY THAN THE FEDERAL?
The third reason for rejecting defendant's rationale for suppression is that he fails to advance any meritorious reason why art 1, § 11 should be interpreted any differently than Am IV. Defendant argues that this Court has traditionally imposed higher standards under art 1, § 11 than the United States Supreme Court has imposed under the Fourth Amendment. The two provisions follow:
"The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation. The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state." Const 1963, art 1, § 11.
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." US Const, Am IV.
The defendant seems to argue that the more liberal standing under the Michigan Constitution has been attributed to the difference in wording between art 1, § 11 and the Fourth Amendment. See People v Secrest, 413 Mich. 521, 525; 321 N.W.2d 368 (1982). He points out that where the Fourth Amendment uses the word "effects," the Michigan provision substitutes the word "possessions." He concludes that this distinction provides a basis for affording greater rights under art 1, § 11 than those enjoyed under the Fourth Amendment and that, hence, we should adopt the "automatic standing" rule.
We acknowledge that in the past we have on occasion offered defendants greater protection under art 1, § 11 than the Supreme Court of the United States has offered under the Fourth Amendment, and in a proper case we will do so again. We are unable to accept, however, defendant's suggestion that this has consistently been the case. In People v Secrest, supra, p 525, we stated that the differences in wording between art 1, § 11 and the Fourth Amendment could provide a basis for imposing higher standards under art 1, § 11 than under the Fourth Amendment:
"There are differences in wording between the two. As a result, we have imposed a higher standard under the state provision than the federal where the item seized is not one within the proviso of the third sentence of art 1, § 11. People v Moore, 391 Mich. 426, 435; 216 N.W.2d 770 (1974). People v Beavers, 393 Mich. 554, 567-568; 227 N.W.2d 511 (1975)."
See fn 2.
Nonetheless, we have never stated that the difference in wording between art 1, § 11, exclusive of the proviso of the third sentence, and the Fourth Amendment mandates a higher standard in every case. In fact, this Court, in People v Nash, 418 Mich. 196; 341 N.W.2d 439 (1983), specifically stated that "we have not * * * created any per se higher standard" and that we will only accord defendants greater rights "where there is compelling reason." In the present case, we are not persuaded that such a compelling reason exists.
In fact, we are not even convinced that the difference in wording is indeed a difference in meaning as it affects this case. The terms "possessions" and "effects" are virtually identical in meaning and are often used interchangeably. Webster's New Collegiate Dictionary (2d ed), p 262, supports this conclusion in that it defines "effects" as "[g]oods; possessions" (emphasis added).
Thus, we reject defendant's argument that the difference in wording between art 1, § 11 and the Fourth Amendment requires adopting the "automatic standing" rule which would offer defendants greater protection under the state constitution than under the federal constitution.
VI. "REASONABLE EXPECTATION OF PRIVACY" TEST
Since neither constitution nor public policy requires or commends the "automatic standing" test, the next obvious question is what test should this Court adopt for search and seizure "standing." In the past we have employed various tests to determine whether a defendant has "standing." We now find that the development of jurisprudence has made these tests obsolete. We therefore adopt a new test, the "reasonable expectation of privacy" test.
A. Prior Michigan Standing Cases
Historically, the earlier Michigan standing cases used a possessory test. People v Norwood, supra, p 272 (rights in the premises); People v Oaks, supra, p 255 ("merely a tenant of a stall in [another's] garage" — "not defendant's home" insufficient); People v Bartoletta, 248 Mich. 499, 501; 227 N.W. 763 (1929) ("[w]hether the officers were in and at the saloon in violation of the constitutional right of its proprietor to be secure against unreasonable searches and seizures is no concern of defendant" driving a car full of beer to a saloon); People v Azukauckas, 241 Mich. 182, 184; 216 N.W. 408 (1927) ("[t]he protection accorded homes may well be left to the householder to assert and we can see no reason for letting the `guests' raise the question of immunity"); People v Anscomb, 234 Mich. 203, 206; 208 N.W. 45 (1926) ("difficult to see how this defendant could complain of an act unlawfully committed in the search of another's home"). All these cases arose during the era of Prohibition and demonstrate two things. First, "standing" is related to ownership. Second, "standing" is a personal right that cannot be exercised vicariously.
These cases parallel the contemporary federal case law to a considerable extent. See Jones v United States, supra, pp 265-267. However, it is a parallel development rather than a following of precedent, because the Michigan cases were decided at a time when the states were free to fashion their own rules as to the exclusion of evidence. Mapp v Ohio, 367 U.S. 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961); Wolf v Colorado, 338 U.S. 25; 69 S Ct 1359; 93 L Ed 1782 (1949). See also 78 ALR2d 246, 250-251.
The next significant and only other search and seizure standing case is People v Gonzales, 356 Mich. 247; 97 N.W.2d 16 (1959). In Gonzales an automobile was stopped by two police officers after they observed that a headlamp was not burning. The driver was taken back to the scout car by one of the officers for purposes of issuing a citation. Meanwhile, the second officer ordered the passengers, one of them the defendant, out of the car "so he `could check it.'" People v Gonzales, supra, p 251. He then saw the butt of a pistol sticking out from under the front seat and picked it up. The defendant admitted ownership of the gun, and a search of his person uncovered a .38 caliber cartridge. On the merits, the Court held that under these facts the police had no right to search the car in which defendant was riding.
With reference to defendant's "standing" to attack the constitutionality of the search and seizure, and without citation of authority, this Court stated:
"Further, we believe that on the facts in this case defendant had the right to raise the constitutional objection. There is no showing of any waiver of the objection by anyone. And though defendant apparently had only the status of a passenger, when the first requirement of the search (and a material one to its outcome) was that defendant remove himself from the seat in the automobile where he had a right to be, we regard the search as directly affecting him." People v Gonzales, supra, p 257.
It is clear from its language that this Court was particularly impressed with defendant's right to be in the car. See People v Sims, 23 Mich. App. 194, 198-200; 178 N.W.2d 667 (1970), aff'd 385 Mich. 621; 189 N.W.2d 41 (1971). Gonzales preceded the federal Jones case by a year, but its holding was similar to that of Jones in rejecting the refusal to grant standing to "guests" and "invitees." Jones, supra, p 265. Thus, Gonzales, without expatiating on the subject, moved away from the narrow "ownership" test for standing of the previous cases. Jones, however, did speak more fully to what Gonzales had in fact indicated. Jones spoke as follows:
In Sims, this Court summarily affirmed a Court of Appeals decision which acknowledged and discussed Jones v United States and People v Gonzales. We do not read Sims as adopting Jones under art 1, § 11. Rather, Sims, although relying on Gonzales, which was decided under art 1, § 11, seems to have been based upon the Fourth Amendment. Alternatively, Sims could be read as having been decided solely under Gonzales and art 1, § 11. All references to Jones were nothing more than dicta. In any event, to the extent that Sims can be read as an adoption of Jones under art 1, § 11, we reject it in accordance with the discussion in the first portion of this opinion.
"We are persuaded * * * that it is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical. Even in the area from which they derive, due consideration has led to the discarding of these distinctions in the homeland of the common law. See Occupiers' Liability Act, 1957, 5 and 6 Eliz 2, c 31, carrying out Law Reform Committee, Third Report, Cmd 9305. Distinctions such as those between `lessee,' `licensee,' `invitee' and `guest,' often only of gossamer strength, ought not to be determinative in fashioning procedures ultimately referable to constitutional safeguards." Jones v United States, supra, pp 266-267. See Rakas v Illinois, supra, p 143; People v Sims, supra, pp 198-200.
B. Choosing a New Standing Test
Turning to formulating a new standard, it is appropriate to recognize viable old principles. We begin with the fundamental tenet that constitutional protections are personal. Only an individual who "belongs to the class for whose sake the constitutional protection is given" can seek to invoke its protection. New York ex rel Hatch v Reardon, supra, p 160. See People v Warner, supra, pp 203-210 (opinion of WILLIAMS, J.); People v Norwood, supra, p 272, and cases cited therein; People v Oaks, supra, p 255; People v Joshua, supra, p 585. See also United States v Salvucci, supra, p 86; Rakas v Illinois, supra, pp 133-134; Brown v United States, supra, p 230; Alderman v United States, supra, p 174; Simmons v United States, supra, p 389; Jones v United States, supra, p 261. In the context of art 1, § 11, this means that the rights guaranteed by that provision can only be asserted "at the instance of one whose own protection was infringed by the search and seizure." See Simmons v United States, supra, p 389. To establish standing to seek art 1, § 11-Am IV suppression, a defendant must show that he has a protectable interest under art 1, § 11.
This brings us to the critical question. What is the interest protectable under art 1, § 11?
The question is appropriately phrased in this manner, because it is clear that standing and the protectable search and seizure interest have been virtually synonymous. When the protectable interest was ownership of a home, standing was based on that ownership interest. When, with Gonzales and Jones, the protectable interest expanded from ownership, then the standing test was likewise expanded.
Of course, in Rakas, supra, p 139, the opinion goes so far as to indicate that the concept of standing should be abandoned altogether and that we should use only the protectable interest test. Rakas stated:
"we think the better analysis forthrightly focuses on the extent of a particular defendant's rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing."
Later, the Rakas opinion, p 140, talks of "dispensing with the rubric of standing."
We need not here consider the utility of officially dispensing with the term "standing," because this time-honored tool will in all probability remain in the vocabulary and lexicon of lawyers for a long time. It is not an empty label. It is a working concept.
So what is the present magnitude and quality of defendant's right to protection under art 1, § 11? The long and short of it is that this Court has firmly enunciated and entrenched the definition of the right against unreasonable search and seizure in the test of "reasonable expectation of privacy." As recently as December of 1983, in People v Nash, supra, pp 204-215, we agreed that Fourth Amendment interests were only "implicated when the governmental activity infringed on a justifiable, or reasonable, expectation of privacy" and that art 1, § 11 did not mandate a different standard. As long ago as April 1975, in People v Beavers, supra, pp 562-566, this Court clearly employed the "reasonable expectation of privacy" test in defining the scope of art 1, § 11 for purposes of ascertaining whether participant monitoring was within its ambit. In fact we relied on Katz v United States, 389 U.S. 347; 88 S Ct 507; 19 L Ed 2d 576 (1967), in reaching our conclusion.
As a consequence, both logic and experience uphold the propriety of making the test for standing the "reasonable expectation of privacy" test. We now so establish it.
VII. PARAMETERS OF THE "REASONABLE EXPECTATION OF PRIVACY" TEST
In adopting the "reasonable expectation of privacy" test to determine standing, it is obvious that the parameters of this test are not delimited by a fine line. It offers no exact template that can be mechanically imposed upon a set of facts to determine whether or not standing is warranted. It does, however, provide the normal common-law value of general direction and practical flexibility.
Justice Powell in his concurring opinion in Rakas, supra, pp 152-155, wrote a useful primer on the "reasonable expectation of privacy" test. We concur with the following remarks, and hold them applicable to art 1, § 11:
" The ultimate question, therefore, is whether one's claim to privacy from government intrusion is reasonable in light of all the surrounding circumstances. As the dissenting opinion states, this standard `will not provide law enforcement officials with a bright line between the protected and the unprotected.' See post, at 168. Whatever the application of this standard may lack in ready administration, it is * * * faithful to the purposes of the Fourth Amendment * * *.
"In considering the reasonableness of asserted privacy expectations, the Court has recognized that no single factor invariably will be determinative. Thus, the Court has examined whether a person invoking the protection of the Fourth Amendment took normal precautions to maintain his privacy — that is, precautions customarily taken by those seeking privacy. See, e.g., United States v Chadwick, 433 U.S. 1, 11; 97 S Ct 2476; 53 L Ed 2d 538 (1977). (`By placing personal effects inside a double-locked footlocker, respondents manifested an expectation that the contents would remain free from public examination'); Katz v United States, supra, at 352 (`One who occupies [a telephone booth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world'). Similarly, the Court has looked to the way a person has used a location, to determine whether the Fourth Amendment should protect his expectations of privacy. In Jones v United States, supra, for example, the Court found that the defendant had a Fourth Amendment privacy interest in an apartment in which he had slept and in which he kept his clothing. The Court on occasion also has looked to history to discern whether certain types of government intrusion were perceived to be objectionable by the Framers of the Fourth Amendment. See United States v Chadwick, supra, at 7-9. And, as the Court states today, property rights reflect society's explicit recognition of a person's authority to act as he wishes in certain areas, and therefore should be considered in determining whether an individual's expectations of privacy are reasonable. See Alderman v United States, 394 U.S. 165; 89 S Ct 961; 22 L Ed 2d 176 (1969)."
In People v Nash, supra, where we equated the protectable interest of the Fourth Amendment with the protectable interest of art 1, § 11, this Court expressed its agreement with the principles set forth in Justice Powell's concurring opinion in Rakas. We stated:
"An expectation of privacy is legitimate if the individual has an actual, subjective expectation of privacy and that actual expectation is one that society recognizes as reasonable. United States v Knotts, 460 U.S. 276; 103 S Ct 1081; 75 L Ed 2d 55 (1983). Whether an expectation of privacy exists in both the subjective and the objective sense is determined by scrutinizing the totality of circumstances surrounding the alleged intrusion. United States v Hawkins, 681 F.2d 1343 (CA 11, 1982). See Rawlings [v Kentucky, 448 U.S. 98; 100 S Ct 2556; 65 L Ed 2d 633 (1980)]; Rakas, supra (opinion of Powell, J., concurring)." People v Nash, supra, p 205.
In accordance with the foregoing, we wish to emphasize that the expectation of privacy must be one that society is prepared to recognize as reasonable. In Rakas, supra, p 141, fn 9, the United States Supreme Court disparaged the idea "that a person present in a stolen automobile at the time of a search may object to the lawfulness of the search of the automobile." In a slightly different vein, Jones, supra, p 267, referred to "those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises."
In sum, we hold that before a defendant may attack the propriety of a search or seizure, that search or seizure must have infringed upon an interest of the defendant which art 1, § 11 was designed to protect. In making this determination, the court must decide whether the defendant had an expectation of privacy in the object of the search and seizure and whether that expectation is one that society is prepared to recognize as reasonable. The court should consider the totality of the circumstances.
VIII. CONCLUSION
Application of the foregoing principles to the case before us is very difficult because of the inadequacy of the record. The issue of standing was first raised in the Court of Appeals. Neither the prosecutor nor defense counsel argued the standing issue in the trial court and only one witness testified at the suppression hearing. As a consequence, the trial judge made no factual findings on the issue of standing.
In light of these circumstances, we deem it appropriate to remand this case to the trial court for a new hearing on the issue of defendant's standing to challenge the seizure of the trailer in question.
The judgment of the Court of Appeals is reversed and the cause is remanded for further proceedings consistent with this opinion.
RYAN, BRICKLEY, and BOYLE, JJ., concurred with WILLIAMS, C.J.