If I understand you right, you'd like a third party at the table that argues to the collective rights of he people to be free from overbearing police and so, notwithstanding their lack of individual interest in any given case - or rather, you'd like the court to take up that function. This turns on how you interpret 'the people' - individually, or collectively. I lean towards the former because the collective right you're worried about also has to be balanced against the collective right to delegate security to law enforcement agencies, and because the threshold of legality in each case is highly individualized depending on the circumstances. I also think that leaning too heavily on dictionary definitions runs the risk of being exclusionary, eg the 4th amendment doesn't mention telephones or other sorts of information storage, so if we are going to take the most narrowly textual approach we might end up honoring the letter but not the spirit of the law.

IF I understand the court in Payner correctly, the problem is the lack of an objective standard for determining when the cost of government overreach outweighs the benefit of truth-seeking in criminal cases, or as the court puts it 'After all, it is the defendant, and not the constable, who stands trial.' The court ad established a standard a year or two before in another case called Rakas (involving the objections of passengers in a car to the admission of incriminating evidence found in the car that the owner of the car did not attempt to suppress). The court in that case took the simplistic but nevertheless straightforward view that only the owner of a property that is illegally searched has standing to complain about a 4th amendment violation. While acknowledging that this is a flawed standard that will sometimes result in injustices, it is nevertheless an unambiguous standard and was a core holding that case. The Payner court, while admiring the principle that the lower court was trying to uphold, agreed with the government that the standard laid down by the Supreme Court in Rakas should control despite its shortcomings, because it came from the Supreme Court.

In other words, it's sort of pointless having a hierarchical court system (as established by the Constitution) if lower courts can interpret constitutional issues without reference to the standards established by the Supreme Court. If those standards have to be abandoned,it must be the Supreme court that abandons them, or the whole system collapses. To quote Justice Jackson: 'We are not final because we are infallible, but we are infallible only because we are final.'

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vo...

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&...

I think you've raised some very interesting questions here. While I said your earlier statement was wrong legally, I don't disagree with your comment that 'it's one of the worst rules [you've] ever heard.' Morally it's very problematic, because as Justice Marshall observed in his Payner dissent, it provides the government with a sword that allows them to deliberately infringe upon one person's 4th amendment rights in order to obtain evidence against someone else. It might well be that the decision was influenced by the perception of out-of-control crime levels in the late 1970s, and might have something to do with the exponential rise in incarceration rates that took off in 1980, which bears thinking about.

Balancing of conflicting imperatives under the 4th amendment is a real ethical minefield, as in this unrelated but interesting case from a few years which has been bothering me ever since I read it. There should be a better rule for handling cases like this, but so far I have been unable to articulate one that doesn't have any holes in it.

http://scholar.google.com/scholar_case?q=mcgacken&hl=en&as_s...