S.D.N.Y.: While it is possible for a warehouse employee to have standing to challenge a search of the warehouse, this one failed to show it

Defendant who, according to his motion, merely worked “at various times” in a warehouse lacked standing to challenge its search. It was legally possible for a mere employee to have had standing, but he filed no affidavit showing a sufficient link to the property [as required in the S.D. N.Y.]. United States v. Saleh, 2011 U.S. Dist. LEXIS 34212 (S.D. N.Y. March 14, 2011):

Although the expectation of privacy in commercial property is not as great as for residential property, New York v. Burger, 482 U.S. 691, 700 (1987), it is “well-settled” that, under certain circumstances, an employee may have a reasonable expectation of privacy in his workplace and may challenge a search of its premises. United States v. Chuang, 897 F.2d 646, 649 (2d Cir. 1990). To show a legitimate expectation of privacy, an employee must have a “possessory or proprietary interest in the area searched.” Id. Additionally, the employee must show “a sufficient ‘nexus between the area searched and [his own] work space.’” Id. (quoting United States v. Britt, 508 F.2d 1052, 1056 (5th Cir. 1975)). While the presence of these factors must be determined on a case-by-case basis, Id. at 649-50, prior decisions provide some guidance:

Generally, courts tend to find that these elements are sufficiently established when the area searched is set aside for the defendant’s exclusive use, such as an individual office. However, courts are more skeptical of standing claims when the defendant only occasionally used the area searched, The greater the degree of exclusivity and control over a work area, and the more time a defendant spends there, the more likely standing is to be found. By contrast, the less private a work area—and the less control a defendant has over that work area—the less likely standing is to be found.

United States v. Tranquillo, 606 F. Supp. 2d 370, 377 (S.D.N.Y. 2009) (quoting United States v. Hamdan, 891 F. Supp. 88, 94-95 (E.D.N.Y. 1995)).

Here, however, Saleh has not put forth any facts in his motion indicating a possessory or a proprietary interest in the Warehouse. See id. at 378 (finding no legitimate expectation of privacy where defendant failed to put forth in a sworn affidavit any facts indicating a possessory interest). An affidavit by Selah’s attorney merely states that Saleh worked on the premises “at various times” for Rock Import Export Inc. Saleh has not claimed any ownership interest in the premises nor stated any facts indicating his exclusive use and control over the area searched. Cf. Leventhal v. Knapek, 266 F.3d 64, 73 (2d Cir. 2001) (holding that an employee had a reasonable expectation of privacy in the contents of his office computer where he had a private office and had exclusive use of the desk, filing cabinet, and computer in his office).