United States District Court, S.D. Georgia, Savannah Division
Karteu Jenkins has objected to the Court's recommendation
that his motion to suppress recordings of conversations he
had with his co-defendant Eugene Allen over a contraband
prison cell phone be denied. Doc. 528. He contends that the
Court erred when it failed to consider the implication of the
fact that he was not incarcerated when the communications
occurred. Id. at 2. The Court did not consider those
implications in detail for the simple reason that Jenkins
never adequately raised the issue.
Report and Recommendation explained, the procedural history
of the defendants' motions was convoluted. See
doc. 521 at 1, n.2. The Court also noted that Jenkins did not
advance any particularly developed arguments of his own.
See Id. As Jenkin's original motion notes, the
Supreme Court has "limited [Title Ill's
'aggrieved person'] provisions as limiting standing
to challenge wiretaps to persons whose Fourth Amendment
rights were violated by the interception." Doc. 339 at 2
(citing Alderman v. United States, 394 U.S. 165,
175-76, n. 9 (1969)). His briefs present no argument
that his Fourth Amendment standing to challenge the
interception of the communications rested on different
grounds than Allen's. Doc. 349 (Motion to Adopt Motions
of Charmaine Sims); doc. 433 at 1 (Government's response,
noting that Sims' motion "was never litigated
because she pled guilty"); doc. 454 (seeking to adopt
Defendant Allen's motion and requesting that Jenkins
"be allowed to raise the same arguments at a
future hearing on" the suppression motion (emphasis
added)); see also doc. 346 (Government's
response describing the arguments presented in Jenkin's
original motion as "boilerplate"). At the
Court's August 29, 2018 hearing, Jenkins offered no
argument of his own. He also filed no response to the
Court's invitation for the parties to brief the issue.
See doc. 441 (Minute Entry reflecting direction that
the "parties" file briefs within 14 days). The only
indication of his contention is an "affidavit"
stating that he "was not incarcerated at the time that
the wiretaps were put in place and executed," and
asserting, in a purely conclusory fashion, that he "had
an expectation of privacy for [his] telephone
conversations." Doc. 439.
his lack of any substantive argument on the point, the Court
agrees that Jenkins' "rights are not an
'extension' of Defendant Allen's . . . ."
Doc. 528 at 2. The Court will not, however, infer
how Jenkins' different situation makes a
difference to his status as an "aggrieved
person," under Title III. See doc. 346
(Government's argument that Jenkins' original motion
was not sufficiently definite or detailed to permit
substantive response). Given his concession that the
statutory definition is construed in the context of Fourth
Amendment jurisprudence, doc. 339 at 2, he must show, not
only that he had a subjective expectation of privacy
in his communications, but that that expectation was one
society is prepared to accept. See, e.g., United States
v. Ford, 34 F.3d 992, 995 (11th Cir. 1994) (to establish
Fourth Amendment standing, even a defendant who has "a
subjective expectation of privacy . . . must demonstrate that
his is a subjective expectation that society is prepared to
recognize as being reasonable."). Even construed
charitably, Jenkins has established no more than his
particular, Jenkins has cited no case that supports the
proposition that he has the requisite privacy interest in
all of the calls he makes on his personal telephone.
See, e.g., United States v. Wilk, 2005 WL 7863526 at
* 11 (S.D. Fla. Mar. 14, 2005) (explaining that the limits on
prisoners' Fourth Amendment rights may affect the
corresponding rights of non-prisoners). The Court is prepared
to consider Jenkins' argument that he has a
socially-recognized privacy interest in communications he
participated in over a contraband prison cell phone, but it
could not and cannot conjure those arguments for him. Neither
will it anticipate that the Government will respond to them
as it responded to Allen's. See doc. 465
(Government's response to Allen's motion, responding
to Jenkins' motion only by reference to its previously
the Court will construe Jenkins' objection as a Motion
for Reconsideration, which it GRANTS. It,
therefore, VACATES, in part, the Report and
Recommendation to the extent that it disposed of Jenkins'
motion to suppress. Doc. 521. By no later than 5:00 p.m.,
Eastern Standard Time on Friday, January 18, 2019, Jenkins is
directed to file a supplemental brief detailing his argument
that he has standing to challenge the interception of the
communications, despite the illicit means of communication.
The Government must file its response no later than 5:00 p.m.
on Friday January 25, 2019. Those responses should state the
parties' positions on whether a hearing on the standing
question is necessary.
 It is not clear that this document is
an effective affidavit. In the first place, the document
recites that it was made "before the undersigned notary
public," but it is not notarized. See doc. 439.
Further, it does not state that the assertions are made
"under penalty of perjury," but only "under
oath or affirmation." Id.; see 28 U.S.C. §
1746 (providing mandatory language for unsworn declarations).
Finally, even supposing the affidavit was sufficient, its
assertions alone are not competent evidence for the
disposition of a suppression motion; their only function is
to demonstrate the defendant's entitlement to a hearing.
See, e.g., United States v. Terry, 2007 WL 496630 at
* 4 (S.D. Ga. Feb. 12, 2007), aff'd, 258
Fed.Appx. 304 (11th Cir. 2007).
 Jenkins' objection cites his
original motion in support of his contention that he asserted
his status as an aggrieved person. See doc. 528 at
2. The cited material asserts, unedited:
Mr. Jenkins is an aggrieved person as defined by to 18
U.S.C. § 2510(11) in that he was a person who was a
party to intercepted communications. Specifically, the order
for interceptions was granted regarding telephone numbers
that were either directly or indirectly related to Eugene
Allen. Calls were intercepted pursuant to this order to which
Mr. Jenkins was a party.
Doc. 339 at 9. The Court agrees that Jenkins appears
to satisfy the statutory definition of "aggrieved
person." However, as his own brief points out pages
earlier, that definition is limited "to persons
whose Fourth Amendment rights were violated by the
interception." Id. at 2. In the absence of any
indication of how his Fourth Amendment rights were violated,
Jenkins' contention that he satisfies the statutory
definition of "aggrieved person" is ...