At the outset, the Government challenges the defendant's standing to seek suppression. In order to have standing to make a suppression motion, a defendant must prove that he or she had a legitimate expectation of privacy in the item seized. See United States v. Zapata-Tamallo, 833 F.2d 25, 27 (2d Cir. 1987). Under Section 2518(10)(a) of Title III, only an "aggrieved person" may seek suppression of wire communications intercepted by the Government. 18 U.S.C. § 2518(10)(a). Section 2510(11) defines "aggrieved person" as "a person who was a party to any intercepted wire, oral or electronic communication or a person against whom the interception was directed." 18 U.S.C. § 2510(11). The Second Circuit has made clear that this standard is coextensive with the standing requirements applied to suppression claims made under the Fourth Amendment. United States v. Ruggiero, 928 F.2d 1289, 1303 (2d Cir.), cert. denied, 502 U.S. 938 (1991); United States v. Gallo, 863 F.2d 185, 192 (2d Cir. 1988), cert. denied, 489 U.S. 1083, 103 L. Ed. 2d 843, 109 S. Ct. 1539 (1989); United States v. Fury, 554 F.2d 522, 526 (2d Cir.), cert. denied, 433 U.S. 910 (1977), and cert. denied, 436 U.S. 931, 56 L. Ed. 2d 776, 98 S. Ct. 2831 (1978).
The burden of establishing standing is on the party moving to suppress evidence. United States v. Osorio, 949 F.2d 38, 40 (2d Cir. 1991). Therefore, the defendant in this case must prove that he had a legitimate expectation of privacy that was violated by the Government's surveillance of the intercepted telephone line. This expectation of privacy must be established by proof that the defendant's voice was intercepted by the Government. United States v. Burford, 755 F. Supp. 607, 609 (S.D.N.Y. 1991), aff'd without opinion, 986 F.2d 501 (2d Cir. 1992). As the defendant has not submitted an affidavit asserting that he was a party to any intercepted communication, the Government argues, he may not be heard to challenge the interception.
The defendant rejoins, in an unsworn statement in his memorandum of law, that the Government has told his counsel that it has the defendant on tape as a result of the surveillance. (See Def. Reply Br. at 3) The Government responds that its belief that it has the defendant on tape does not establish standing absent a sworn statement by the defendant. It contends that the defendant should not be deemed to have standing while retaining the option, if the motion to suppress is denied, of later denying that his voice is on the tapes.
The law is clear that the burden on the defendant to establish standing is met only by sworn evidence, in the form of affidavit or testimony, from the defendant or someone with personal knowledge. The defendant's unsworn assertion of the Government's representations does not meet this burden.
United States v. Gerena, 662 F. Supp. 1218, 1250-51 (D. Conn. 1987); see United States v. Sierra-Garcia, 760 F. Supp. 252, 264 (E.D.N.Y. 1991). The defendant therefore has failed to satisfy the standing requirement.
Even if the defendant did have standing in these circumstances to seek suppression, the Court would deny the motion. The principal thrust of the defendant's argument is that there was insufficient evidence to connect Quiroz with the telephone in question and, in consequence, that there was no probable cause to believe that interceptions on that telephone would lead to evidence. The short answer is that the affidavit in support of the order authorizing the electronic surveillance contained evidence that Quiroz had telephoned the confidential informant twice from the target telephone on December 27, 1994, that he had had a narcotics related telephone conversation with the confidential informant at that time (see Bean Aff. P 19-20), and that the pattern of use of the phone was characteristic of a telephone used in the narcotics business. (See Bean Aff. P 22-23) These facts were sufficient to establish probable cause.
The motion to suppress is denied.
Dated: July 18, 1995
Lewis A. Kaplan
United States District Judge