(corporate president has standing to challenge search of corporate records in his office but not corporate records in storage area). 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. See. e.g., Martinez v. Nygaard, 831 F.2d 822 (9th Cir. 1987) (factory workers could not challenge search of common area used by 75 people).
Finally, in support of a motion to suppress evidence found in a warrant less search, the burden is on the defendant to show that he had a reasonable expectation of privacy in the place searched. United States v. Perea, 986 F.2d 633, 639 (2d Cir. 1993); see also Rawlings v. Kentucky, 448 U.S. 98, 104, 65 L. Ed. 2d 633, 100 S. Ct. 2556 (1980). Therefore, in order to determine if Hamdan has sufficiently established his "possessory or proprietary interest" in the warehouse and a nexus between the searched area and his workplace, I will review the assertions of the parties.
Hamdan elected not to testify during the suppression hearing held by this Court. Instead, he has submitted affidavits in which he asserts that he controlled the warehouse and was an officer in the corporation that rented the warehouse. The government has countered with witnesses whose testimony contradicts Hamdan's assertions in several respects. The conflicting versions of events are described below.
2. The Affidavits of Defendant Hamdan
In support of his claim that he has standing to challenge the search of the warehouse, Hamdan has submitted two affidavits. The first claims that Hamdan is the corporate secretary of HRK and is "responsible" for the warehouse. The affidavit also includes documentation regarding the first meeting of the HRK Board of Directors, in which Hamdan is listed as secretary and his mother Rebhiah Hamdan is listed as president.
In addition, the first affidavit includes a commercial lease between HRK and the owners of the warehouse, Abraham Belsky and Henry Bodner. The lease is signed only by Belsky and Rebhiah Hamdan, and nowhere does it include the signature of Jamil Hamdan.
This first affidavit demonstrates neither a sufficient possessory (or proprietary) interest in the area searched, nor the required nexus between the area searched and Hamdan's workplace. Even assuming every fact stated in the affidavit to be true, the simple fact that Hamdan is the secretary of the corporation does not give him a proprietary interest. Moreover, the conclusory statement that Hamdan is "responsible" for the warehouse, absent further evidence to that effect, falls well short of meeting the Chuang requirements.
A supplementary affidavit submitted by Hamdan includes broader assertions of a proprietary interest in the warehouse. In his second affidavit Hamdan claims that he is the "sole operator" of the warehouse, that he is "solely responsible" for the warehouse's upkeep and security, that access to the warehouse is obtained only through him, and that the warehouse is Hamdan's personal "depot" in which he stores the corporation's merchandise. On their face, such assertions make a stronger case for Hamdan's standing to challenge the government search.
3. The Testimony of The Government Witnesses
The government produced three witnesses in the suppression hearing. Charles Micallef, a real estate manager, testified that from January 1994 to mid-March 1995, he leased a warehouse at 301 Fourth Avenue in Brooklyn to a heavyset man in his mid- to late-fifties named Ali Kassad. In early 1995, after Kassad stopped paying the rent, eviction proceedings were commenced. Micallef showed the warehouse to other prospective lessees during the pendency of the proceedings. On one such occasion, he observed Magnavox electronics equipment in the warehouse.
Kassad promptly told him to leave the premises.
Micallef stated that he sometimes dealt with a man named Jimmy, whom the other evidence has revealed to be the defendant Jamil Hamdan, and whom Micallef identified as Ali Kassad's stepson. Specifically, Micallef would speak to Jimmy about repairs to the premises and other such matters. Micallef testified, however, that Kassad was in charge of the property and made all the important decisions regarding it.
Abraham Belsky, the owner of the warehouse at 505 Johnson Avenue, testified that he leased those premises in January 1995 for $ 2,000 per month to a heavyset man in his mid-fifties who fits the description of Kassad, but who identified himself to Belsky as "Mr. Hamdan." Belsky stated that this person signed the lease, paid the $ 4,000 security deposit, and was given the keys. Belsky did not recognize either of the defendants in this case as the man with whom he had executed the lease, and there is no dispute that this latter individual is Ali Kassad. However, Belsky testified that he spoke by phone with a man named "Jimmy" on two occasions -- once when Belsky called to try to collect late rent payments, and once when Jimmy called to tell Belsky that Jimmy had "problems" and would be vacating the premises.
The final government witness was Imad Elhag, an employee who was hired by Ali Kassad to work at both warehouses -- 301 Fourth Avenue and 505 Johnson Avenue. Elhag was hired to carry boxes at the warehouses and to clean the premises. In January 1995, Kassad gave Elhag a key to the newly-leased Johnson Avenue warehouse and instructed him to begin working there. Kassad said that he would be sending Elhag trucks -- Jimmy would be driving them -- and Elhag would help load "stuff" inside the trucks brought by Jimmy. Shortly thereafter, various goods, including electronics equipment, were delivered to the Johnson Avenue warehouse.
Kassad instructed Elhag that he would be in charge of the Johnson Avenue warehouse, and that if the landlord or anyone else asked about the owner of the place, Elhag must not provide the real name.
Elhag testified that Jimmy (the defendant Jamil Hamdan) came to the Johnson Avenue warehouse almost every day in order to either load or unload goods, with Elhag often assisting in the task. Elhag also stated that Hamdan would sometimes tell him to go from the warehouse at Johnson Avenue to the warehouse on Fourth Avenue, or vice versa, and that Elhag complied with these requests. Also, at the direction of Kassad, Hamdan hired several workers to clean up the warehouse after a flood and to fix the warehouse's alarm system. However, Elhag was hired by Ali Kassad, worked directly for Kassad, answered to Kassad, and was paid -- in cash -- by Kassad.
Elhag testified that goods were sometimes moved around within the 8,000 square foot warehouse. While the defendant Jamil Hamdan stored electronic goods in a dark area in the rear of the premises, there were no clearly partitioned storage areas nor any differentiation in the warehouse's floor space other than its proximity to the door. The defendant did not have a particular portion of the warehouse that was his. To the contrary, Elhag testified that "the whole thing belonged to Ali, to Mr. Kassad."
Although there was a small office at the front of the warehouse, there was no phone, desk, file cabinet, papers, or any other personal effects. Kassad, Jimmy and Elhag all had keys and general access to the warehouse.
A significant gulf exists between the facts in the defendant Jamil Hamdan's affidavits and those presented by the government witnesses. Hamdan presents himself as in absolute control of the warehouse, its operation, security and access. However, the testimony of the government witnesses creates a picture of Hamdan as clearly secondary to his stepfather Kassad, with far less responsibility than Kassad for the acquisition and control of the warehouse.
I credit the testimony of the government witnesses. Ali Kassad was the person who arranged the lease of the Johnson Avenue warehouse and directed its operations. While the defendant partially managed some of the day-to-day affairs of the warehouse, there was no portion of it that he possessed or ran. The defendant shared responsibilities with Elhag, shared access with Elhag, and (as compared to Kassad) held a decidedly secondary role in the overall management of the warehouse. In short, I find the statements in Hamdan's affidavit that he was the "sole operator," was "solely responsible" and had sole access to the warehouse to be false, as is the statement that Hamdan was "responsible" for the "merchandise" stored there.
In challenging a search of corporate premises, a defendant must, at a minimum, have had a possessory or proprietary interest in the area searched. Chuang, 897 F.2d at 649. The facts of this case demonstrate that Jamil Hamdan did not have a possessory or proprietary interest in the Johnson Avenue warehouse, and therefore lacks standing to challenge the warrantless search. As a result, the motion to suppress the evidence seized from the warehouse is denied.
John Gleeson, U.S.D.J.
Dated: June 16, 1995
Brooklyn, New York