S.D.N.Y.: Def has to show standing, and he can’t rely on affidavit for SW to do it

Defendant moved to suppress a Facebook search warrant for an account ostensibly in his name. A total of ten Facebook warrants were issued. Defendant did not file an affidavit claiming the Facebook account was his, and he cannot rely on the allegations in the affidavit for the search warrant to establish his standing. Even if he had standing, the warrants were issued on probable cause and were particular. United States v. White, 2018 U.S. Dist. LEXIS 146444 (S.D. N.Y. Aug. 29, 2018):

Here, White has failed to establish standing as required to bring this motion to suppress because neither he nor a person with personal knowledge has demonstrated by sworn evidence that White had any property or possessory interest in the Facebook account. Instead, White takes issue with whether the account is his, noting that the Government’s search application “did not set forth enough information linking the account to White.” White Br. at 13.

Moreover, White may not rely on the evidence cited by the Government in the Tepperman Affidavit in order to establish standing. This Circuit has routinely rejected efforts by defendants to establish Fourth Amendment standing based on the Government’s allegations or evidence. See, e.g., United States v. Watson, 404 F.3d 163, 166-67 (2d Cir. 2005) (internal citation omitted) (holding that a defendant does not establish standing sufficient to challenge a search “merely because he anticipate[s] that the Government will link the objects recovered in that search” to him “at trial.”); Serrano, 2014 U.S. Dist. LEXIS 81478, 2014 WL 2696569, at *7 (June 10, 2014) (holding that defendant could not establish standing to move to suppress cell phone location data by “rely[ing] on the Government’s position that it intends to link the defendant to the cell phone at trial as a basis for such an interest”); United States v. Cody, 434 F. Supp. 2d 157, 167 (S.D.N.Y. 2006) (holding that the fact that Government found defendant’s fingerprints on bag and planned to link him to it at trial did not permit court to “ignore his refusal to claim ownership” of the bag); Montoya-Eschevarria, 892 F. Supp. 104, 106 (S.D.N.Y. 1995) (holding that “defendant’s unsworn assertion of the Government’s representations does not meet [his] burden” of establishing standing).