The defendant has the burden of showing standing, if raised, but he doesn’t have to testify to do it. The affidavit for the warrant here said the place to be searched was defendant’s and that’s enough. Other cases in this district support that conclusion (noted below) . United States v. Wilburn, 2021 U.S. Dist. LEXIS 68256 (W.D. Pa. Apr. 8, 2021) (see Treatise § 4.03 n.15). On the government’s inconsistent positions:
First, the changed positions of the United States as to the admissibility and applicability of the warrant affidavits represented a complete about face. The United States first argued that the Court could not consider the facts in Agent Laukaitis’s affidavits when it might benefit Wilburn (establishing the standing the United States argued he needed to prove), but now argues the Court should consider those very same affidavits when it benefits the United States (the collective knowledge doctrine). When it became helpful to the United States, and well before it announced that it would rely on the “collective knowledge” doctrine, its objection at the suppression hearing to considering the facts stated in Agent Laukaitis’s affidavits evaporated. And it has since relied on those affidavits to support that newly announced “collective knowledge” argument. So, the United States’ positions at the suppression hearing and in its post-hearing brief about the admissibility and applicability of the affidavits were plainly inconsistent.[FN18]
[18 The United States has advanced another set of fundamentally inconsistent litigation positions: its positions relative to the import of the contents of the Warrant application for the Webster Ave. apartment. The litigation positions of the United States in that regard are also material and irreconcilably inconsistent. This is because when it was necessary to justify the issuance of a search warrant for the Webster Ave. apartment, federal law enforcement asserted that Wilburn resided there in Agent Laukaitis’s sworn application for the Warrant. Yet the United States then completely switched gears in the suppression proceedings and asserted that it was an open question whether Wilburn did reside there, and that Wilburn had to present his live witness testimony that he did. That, too, is a positional about face that had the effect of causing defense counsel to put Agent Laukaitis on the witness stand for a limited purpose, and then being confronted after the fact with the Government’s late-arriving “collective knowledge” argument reliant on that same affidavit.
Given the prior cases decided by other judges of this Court, the Government’s broad statements to this Court that the search warrant affidavit was insufficient to meet whatever obligation Wilburn had to show his privacy interest in the Webster Ave. apartment were simply off the mark. The direct inconsistency between the Government telling a Magistrate Judge that it was confident (and that the issuing judge should have been confident) that Wilburn lived at the Webster Ave. apartment, and its contrary position at the suppression hearing that Wilburn’s interest in that apartment was some sort of mystery is also the sort of “fast and loose” complete switching of positions that the judicial estoppel doctrine is meant to address.]
As for the second prong, the Court need not conclude that the United States had a malevolent heart in advancing its “strategy” to try and get Wilburn to take the witness stand. That is not what “bad faith” means here. It is sufficient that, as part of its “standing strategy,” the United States advanced an argument that was contrary to settled law (and certainly at least since the Supreme Court’s decision in Byrd, and the decisions of our Court of Appeals in Jackson and Kennedy), and then pulled out a brand-new argument after the hearing that relied on the Warrant affidavits it said were not good enough when Wilburn had first tried to use them to establish standing. That reflected the “fast and loose” litigation approach that the judicial estoppel doctrine proscribes. And the fact that Wilburn offered the affidavits without objection at the end of his examination of Agent Laukaitis does not matter either. At that point, given the unerring focus of the United States on its “standing first” argument, coupled with the fact that Agent Laukaitis was called to the stand as to standing only, and despite two pre-hearing briefs from the United States that never hinted at the collective knowledge doctrine, the fair inference that the Court draws is that the United States’ lack of objection was also part of its “strategy,” one that would have included the defense offering the affidavits into the record, and the United States thereby avoiding exposing Agent Laukaitis to cross-examination as to any issue beyond standing.
This switching of gears by the United States as to the use of the affidavits, and in ignoring the facts about Wilburn’s residency as advanced by federal law enforcement when it sought the Webster Ave. Warrant, all coupled with the pursuit of a strategy dependent on a position unsupported by—and actually contrary to—both precedential and persuasive case law more than meets the “fast and loose” test.[FN19]
[19 That the Court stated on the spot at the hearing that the United States’ strategy was “legitimate” does not change this outcome. The United States had Agent Laukaitis sitting at the hearing, and it could have made the testimonial record it would later need to support the “collective knowledge” doctrine as to the traffic stop. Instead, it stated that it would not call her as a witness as to “the stop.”
More than that, the reason that courts count on lawyers laying out all of the law on the positions they take, even if that case law goes against their argument, is because courts need to respond in the heat of the moment to legally grounded advocacy. That means that then and there was the expected time for the United States to have cited to the above-referenced Supreme Court and Circuit decisions that ran against its “prove standing first with witness testimony” argument, and to the persuasive Ginyard and Denson decisions in this Court, decisions that were contrary to the arguments it was advancing relative to the import of the Webster Ave. apartment Warrant affidavit and the necessity of live testimony from the Defendant.
The United States did not bring those cases or principles to the Court’s attention and instead made arguments that were counter to them. As it enlisted the Court in pushing Wilburn to call a witness for an initial resolution of “standing,” the United States had an obligation to advance arguments consistent with Circuit law and to provide the Court with the relevant case law that was both for and against its position. It did not, and the consequences of its approach are thus of its own making.]
The other cases cited are: United States v. Penney, 2020 U.S. Dist. LEXIS 189057 (W.D. Pa. Oct. 13, 2020); United States v. Ginyard, 2019 U.S. Dist. LEXIS 8797 (W.D. Pa. Jan. 18, 2019).
