M.D.Pa.: Reliance on govt’s case not enough to show standing here

Defendant relied on the government’s evidence to show standing, but it didn’t. He had to do something to show standing. [It doesn’t require the defendant testify, but sometimes it does, but so what? The evidence of standing can’t be used by the government in its case in chief unless the defendant takes the stand and contradicts the prior testimony.] United States v. Valdez, 2011 U.S. Dist. LEXIS 125371 (M.D. Pa. October 31, 2011)*:

Defendant’s motion itself and his initial brief do nothing to establish his standing, that is to say, his reasonable expectation of privacy. Additionally, he presented no witnesses or exhibits at the suppression hearing on this matter. Rather, defendant asserts that he met his burden as follows: “it is the government’s own investigation that corroborates the his [sic] residency and expectation of privacy at the Strawberry Hill Road property.” (Doc. 61, Def. Br. at 2). In other words, to establish standing, the defendant relies upon the affidavit of probable cause that the government drafted in order to obtain a search warrant on October 15, 2010, the day after the search at issue. This affidavit indicates that on the day of his arrest, police observed defendant at the residence throwing several garbage bags into a dumpster. (Doc. 50-5, Affidavit of Probable Cause at 3-4). Further, the affidavit indicates that defendant told the police that he had moved into the residence with his cousin two months previously. (Id. at 4). At the suppression hearing the DEA Agent in charge of the search, James Farano, indicated that it appeared that defendant had been living in the residence. (N.T. at 16).

Defendant’s position is that these facts establish that he had a privacy interest in the area where the DEA found the drugs and other material. The court disagrees. These assertions might support some sort of privacy interest in the residence itself. The police, however, did not find the evidence at issue in the residence. As noted above, the police found the evidence under a tub next to a commercial garage.

The defendant presented no evidence to establish that he had a privacy interest in the area located under the tub next to the commercial garage, where the police found the drugs. At best, the evidence indicates that a man, who may have been defendant’s cousin, leased the property, perhaps even the area at issue. The defendant indicated to the police that he lived with his cousin for several months. This familial relationship and sharing the residence with the lessee does not create an expectation of privacy in the area where the agents found the evidence. This case is similar to United States v. Mankani, 738 F.2d 538, 545 (2d Cir. 1984). In Mankani, the defendants occupied rooms in a farmhouse and made periodic visits to a barn located on the property. The Second Circuit Court of Appeals concluded that those contacts did not give rise to a reasonable expectation of privacy in the barn, and thus the defendants lacked standing to challenge the seizure of evidence from the barn. Id.