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Bourassa v. State

Court of Appeals of Georgia, Fifth Division

March 15, 2018


          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          Bethel, Judge.

         Jeffrey 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 counsel.

         We 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.

         1. 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.

         The 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.

         Through 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.

         The 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 conversations.[1]

          As our 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 evidence).

         In this 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.

         The 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 by DCSO.

         In 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.

         The 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]."

         On 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.

          We 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.

         The 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 call).

         In 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.

         In 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 ...

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