MCFADDEN, P. J., BRANCH and BETHEL, JJ.
Alan Bourassa appeals from the denial of his motion for a new
trial following his conviction on one count of possessing
more than one ounce of marijuana, one count of conspiracy,
and one count of violating the Georgia Racketeer Influenced
and Corrupt Organizations Act ("RICO") by using a
telephone to arrange for the purchase of more than one ounce
of marijuana. On appeal, Bourassa argues that the trial court
erred in concluding that he lacked standing to suppress
records of telecommunications that were intercepted by the
Douglas County Sheriff's Office. Bourassa also argues
that the trial court erred in ordering Bourassa's trial
counsel to continue representing him even though, prior to
trial, trial counsel had disclosed to the court a conflict of
interest which she believed required her withdrawal from the
case. Finally, Bourassa, whose trial counsel also represented
him on his motion for a new trial, seeks remand of this case
so that the trial court can conduct an evidentiary hearing on
whether trial counsel provided ineffective assistance of
affirm the trial court's denial of Bourassa's motion
to suppress, as we agree with the trial court that Bourassa
did not establish his standing to challenge the introduction
of that evidence. We also affirm the trial court's denial
of trial counsel's motion to withdraw, because the motion
did not disclose an actual active conflict and because it was
untimely. However, as set forth more fully below, while we
are able resolve some of Bourassa's claims of
ineffectiveness based on the record before us, we remand this
case for further consideration of his other claims that
require the development of an appellate record.
Bourassa first argues that the trial court erred when it
ruled that he did not have standing to challenge the
introduction of certain surreptitiously recorded telephone
calls against him at trial. We disagree.
record reflects that the Douglas County Sheriff's Office
(DCSO) obtained investigative warrants for the interception
of electronic communications for several phone numbers
connected to certain individuals who DCSO had learned,
through confidential informants and a series of planned drug
buys by undercover agents, were part of an organization that
was selling marijuana. Calls placed to and from those numbers
were recorded pursuant to the warrants. None of the targeted
phone numbers belonged to or were associated with Bourassa.
the evidence gleaned from the monitoring of those calls and
other investigative techniques, Bourassa and several other
defendants were arrested and charged, inter alia,
with possession of marijuana, conspiracy to possess
marijuana, and violation of the Georgia RICO statute.
Bourassa moved in limine to suppress the contents of several
of the recordings, arguing that they violated his Fourth
Amendment right against unreasonable search and seizure.
trial court denied Bourassa's motion to suppress. The
court noted specifically that Bourassa did not call any
witnesses at the suppression hearing or offer any evidence
that he was party to any of the conversations intercepted by
DCSO. The trial court also noted that Bourassa did not
concede or stipulate that he was a party to any of those
Supreme Court has noted, "demonstrating standing is a
threshold burden for suppression of the evidence."
Hampton v. State, 295 Ga. 665, 669 (1) (763 S.E.2d
467) (2014) (citation omitted). Further,
a criminal defendant has standing to suppress evidence
obtained through an illegal search or seizure only in the
situation in which his or her own rights are violated, as
such rights are personal and are not to be asserted
vicariously. And, an individual can successfully argue for
suppression of the product of a Fourth Amendment violation
only if that person's rights were violated by the search
itself; suppression of the evidence is not available to one
who is aggrieved solely by the introduction of damaging
evidence because the exclusionary rule is to protect
individuals whose Fourth Amendment rights have been violated.
Id. (citations omitted). Standing to suppress
recordings of surreptitiously recorded phone calls arises
when the person seeking suppression was a party to any
intercepted communication or a person against whom the
interception was directed. See Deleon-Alvarez v.
State, 324 Ga.App. 694, 699 (2) (a) (751 S.E.2d 497)
(2013) (standing arises if the movant is the subscriber of
the phone that is tapped or if his voice can be heard on any
of the intercepted calls the State seeks to introduce into
case, nothing in the record established that the targeted
phone numbers belonged to Bourassa (indeed, the record
reflects otherwise), and Bourassa did not offer or point to
any testimony or other evidence that established that his
voice could be heard in the recordings the State sought to
introduce. Instead, Bourassa relied exclusively on testimony
elicited in cross examination from the DCSO officer who
obtained the warrants. First, defense counsel asked the
officer if Bourassa had been heard on any of the calls placed
to or from the targeted numbers:
Q: Was [Bourassa] ever part of the call or
party on the call?
A: He was identified-or his phone number was
identified as one of the phone calls was calling us, yes.
DSCO officer indicated that his office connected the incoming
number to Bourassa by searching for the number on Facebook.
The number from which the call was placed was associated with
a Facebook account that belonged to another suspect in the
case. Bourassa was later identified as a user of the phone
associated with that number after he called the target of the
surveillance to set up a drug deal and was later photographed
response to further questioning from defense counsel, the
officer indicated his belief that Bourassa could be
heard on the recorded calls:
Q: Okay. And so it's your belief and
testimony that [Bourassa] was a party to some of the phone
calls that were tapped, that were listened to on this tap?
A: Yeah, he was part of the conversations
that we received.
DCSO officer went on to testify that DCSO never positively
identified Bourassa as a speaker on any of the calls. He
indicated that, in a call that was monitored, a male voice
called to set up a drug transaction. Bourassa was then
observed by DCSO coming to the arranged location of the
transaction at the time that had been specified on the
monitored call, photographed at the scene, and then followed
afterward. According to the DCSO officer, "all evidence
indicated it was [Bourassa]."
re-direct examination, the DCSO officer stated that he had
never met or interviewed Bourassa and had no reason to know
what his voice sounded like. The officer stated his belief
that it was Bourassa's voice on the recorded calls
"[b]ased on the evidence we developed." The officer
noted that Bourassa had never admitted that it was his voice
on the recorded calls.
agree with the trial court that the statements elicited in
this line of questioning, including those posed by defense
counsel, are insufficient to establish Bourassa's
standing to suppress the recordings. The questions asked by
Bourassa's counsel on cross-examination were not an offer
of evidence, nor did they provide proof that it was in fact
Bourassa's voice that could be heard. Those questions,
and the responses of the DCSO officer, merely confirmed the
State's theory that it was Bourassa's voice that
could be heard on the recorded calls.
Eleventh Circuit and the U.S. district courts in Georgia have
repeatedly ruled that reliance on the government's
position, contention, or theory to establish standing to
suppress a search is insufficient, specifically noting the
burden that is placed on the movant to stipulate as to
standing or to bring forward evidence establishing standing
that is independent of the government's evidence.
See, e.g., United States v. Bell, 218 F.Appx. 885,
895 (II) (A) (11th Cir. 2007) (holding that defendant
"cannot adopt the government's evidence . . . for
the limited purpose of establishing standing while
challenging the validity of the same evidence.");
United States v. Chavez-Macial, 2012 U.S. Dist.
LEXIS 183038 at *52-55, 2012 WL 6742323 (N.D.Ga. Dec. 7,
2012) (recommending denial of motion to suppress for lack of
standing where defendant called no witnesses and relied on
government's theory that he was participant in recorded
Chavez-Macial, the defendant argued that he had
standing to challenge the introduction of recorded phone
calls, inter alia, because the government alleged
that his voice could be heard on the calls and because
government records of the calls identify one of the
participants in the calls by an alias alleged to have been
used by the defendant. Id. However, the defendant
never presented evidence or stipulated that he used that
alias or that he participated in the calls. Id.
Thus, although the government advanced the theory that the
defendant could be heard on the communications at issue, the
trial court denied the defendant's motion to suppress for
lack of standing because the defendant neither admitted, nor
pointed to any direct evidence establishing, that he was a
party to the communications at issue. Id.
light of the apparent absence of decisional law from this
Court and the Georgia Supreme Court on this issue, we adopt
the reasoning expressed in Bell and
Chavez-Macial by the Eleventh Circuit and the
Northern District of Georgia, respectively, as these
decisions properly express the burden a defendant must carry
in establishing his standing to challenge the State's use
of intercepted communications under the Fourth Amendment. In
this case, Bourassa did not stipulate or admit that his voice
could be heard on the calls at issue. Although the
State's witness believed that Bourassa's voice could
be heard on the recordings, this was merely a conclusion
based on other circumstantial evidence. Thus, because no
evidence presented by the State or adduced through
cross-examination established that Bourassa was a ...