United States v. Watson, Docket No. 03-1709 (2d Cir. April 12, 2005) (Kearse, Cabranes, Korman) (Op. by Cabranes): In Watson, the Circuit affirms a district court’s denial, pre-hearing, of a defendant’s motion to suppress the fruits of an allegedly illegal search of a residence. The decision is noteworthy for practitioners because it limits a defendant’s ability to challenge a search where he is unwilling (usually for strategic reasons) to claim that he owned or occupied the place where the evidence was seized — i.e., that he had “a legitimate expectation of privacy in the invaded place.” Rakas v. Illinois, 439 U.S. 128 (1978).
The defendant in this case, Roger Watson, was charged with a series of drug and gun offenses based, in part, on evidence seized pursuant to a search of a basement apartment located at 33-18 Fish Avenue in the Bronx. The defendant moved to suppress the evidence seized during the apartment search, claiming that the search warrant was deficient in some respect (the opinion doesn’t spell out how). But rather than having the defendant allege in his affidavit that he owned or lived in the Fish Avenue apartment — something he presumably wasn’t keen to fess up to given what was found there — the defense tried to rely exclusively on the government’s theory of the case to establish his standing to challenge the search. The defense explained in an attorney affirmation that the warrant itself stated that the apartment was used by an individual named “J.D. Scullarchi,” and that (1) the superceding indictment listed “Skilarchie” as an a/k/a for Watson, and (2) a Marshal’s form provided to the defendant in discovery listed the Fish Avenue apartment as one of Watson’s prior residences. Finally, the attorney affirmation made the general claim that “Roger Watson would have an expectation of privacy and, as such standing to contest a search pursuant to a search warrant which authorized the search of his person as well as his residence or former residence.”
The defendant was in something of a catch 22, obviously: He wanted to challenge the propriety of the search of a stash house, which the government was going to claim belonged to him, without admitting under oath that it was his. The district court rejected the defendant’s effort, holding that a hearing wasn’t necessary because the defendant had failed to meet his burden of proving that he had an expectation of privacy in the place searched. The Circuit agreed, noting that the factual claims in the attorney affirmation were insufficient: “That the search warrant listed a person who may be defendant among those who ‘utilized’ 33-18 Fish Avenue does not come close to showing that defendant ‘owned the premises or that he occupied them and has dominion and control over them by leave of the owner.'” (Quoting United States v. Villegas, 899 F.2d 1324, 1333 (2d Cir. 1990)). The panel also seemed distressed by the fact that, at trial, the defendant offered testimony to the effect that he did not reside at the Fish Avenue apartment; in other words, that he was trying to have his cake and eat it too.
The take-away is that a defendant cannot “challenge the search of a residence merely because he anticipated that the Government will link the objects recovered in that search to defendant at trial.” But while a defendant cannot have it both ways, the government can. Here, the government presumably opposed the suppression motion on the ground that the defendant had not alleged that he used the apartment, even though the government intended to prove at trial that he had. Because the defendant has the burden of proof in establishing standing, he is the one who has to make the choice.