S.D.Fla.: Def has burden of showing standing in business premises; he can’t just rely on govt’s theory of case

Defendant had the burden of showing standing in business premises to challenge the search, and he cannot rely on the government’s theory of the case to do so [the latter is a premise on which I disagree: why isn’t that an admission under 801(d)(2) or estoppel?]. United States v. Medina, 2015 U.S. Dist. LEXIS 167608 (S.D.Fla. Dec. 15, 2015):

“An affidavit or testimony from a defendant is nearly essential for establishing [a] defendant’s subjective expectation of privacy for Fourth Amendment purposes.” United States v. Best, 255 F. Supp. 2d 905, 910 (N.D. Ind. 2003) (alteration added; citing United States v. Ruth, 65 F.3d 599, 604-05 (7th Cir. 1995) (in evaluating order on motion to suppress predicated upon facts in search warrant affidavit and DEA agent’s testimony, court agreed with district court that “‘without an affidavit or testimony from the defendant it is almost impossible to find a privacy interest because this interest depends, in part, on the defendant’s subjective intent and his actions that manifest that intent'” (internal citation omitted)); other citations omitted). As pointed out by the Government, Medina cannot carry his burden of showing a reasonable expectation of privacy in the Advanced Medical office and its contents “merely by relying upon the government’s theory of the case.” (Resp. 9 (citing cases)); see also United States v. Zermeno, 66 F.3d 1058, 1062 (9th Cir. 1995) (explaining it was defendant’s “obligation to present evidence of his standing, or at least to point to specific evidence in the record which the government presented and which established his standing. He did not do so.”).

. . .

Turning to the record in this case, Medina had no possessory interest in the Advanced Medical office; the 2014 and 2015 Lease agreements identify Advanced Medical as the tenant, and Medina’s name does not even appear on the agreements as the company’s president. Medina appears to be an officer, director, owner or operator, and registered agent of Advanced Medical. Based on the Tobon Affidavit and Medina’s silence, it is unknown what position Medina occupied at Advanced Medical, although it is known he was its registered agent. It is unknown if Medina had an ownership interest in Advanced Medical. It is unknown how much time, if any, Medina spent in Suite 209. It is unknown how many others had access to the Advanced Medical office and worked from that location. It is unknown if Medina had a key to Suite 209, and how many others had keys to the Advanced Medical office.

No information is provided about the layout of the 1,000-square-foot suite, whether it contained one or more office sub-divisions within it, whether any of the office space was designated for use solely by Medina, and whether any interior doors or furniture doors contained locks. It is unknown if Medina authored the contents of the white binder or of any of the patient files seized, or whether those documents were a collaborative effort of Advanced Medical’s employees. It is unknown if Medina had access to any of the 19 boxes of evidence and five computer processing units, whether others did as well, and what efforts, if any, were undertaken to keep those materials secure. It is unknown if any of the items seized are Medina’s personal property or whether he kept the items in a private place separate from other work-related materials. It is unknown where the items seized were even taken from, be it from a storage area or common room, or a private office sub-division marked for use by Medina.

Given the lease terms summarized supra, and the bond conditions denying him access to the Advanced Medical office, it behooved Medina to make arrangements to keep the rent current or to secure any of his property contained within it. No evidence has been presented showing what precautions, if any, Medina took on his own behalf to secure the places searched or things seized from interference without his authorization. See Anderson, 154 F.3d at 1230-32.