Bourassa v. State
Bourassa v. State
Opinion of the Court
**329In this criminal case, we granted a writ of certiorari to review the Court of Appeals' ruling that the trial court did not err in denying Jeffrey Alan Bourassa's motion to suppress certain intercepted phone communications. Bourassa was convicted of possessing more than one ounce of marijuana, conspiracy to commit that crime, and 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 from co-indictee German William Beltran. The evidence supporting these convictions was obtained during a police investigation of Beltran and others that included **330extensive surveillance and investigation warrants that authorized the interception of electronic and oral communications for several phone numbers, including Beltran's. Neither Bourassa's phone number nor any phone number allegedly used by him was listed as a target in the investigation warrants, and Bourassa's phone number was not known to be associated with any of the phone numbers listed in the investigation warrants as targets. However, the following evidence uncovered in the course of the investigation led police to Bourassa.
In intercepted phone conversations and text messages between Beltran and a man who identified himself as "J" or "JB"
Bourassa moved to suppress the communications intercepted in March 2013, arguing (among other things) that the investigation warrants that resulted in the interception of his phone conversations and text messages violated the laws of Georgia and the Fourth Amendment to the United States Constitution.
*191Bourassa did not testify at the hearing on the motion to suppress or stipulate that he was a party to those conversations and messages, and the State argued that he failed to prove standing. At the suppression hearing, the investigation warrants-including the applications and supporting affidavits-were admitted, and the affiant and sole witness, Sgt. Randy Folsom of the Douglas County Sheriff's Office, confirmed that neither Bourassa nor any phone number associated with him was **331specified as a target in the warrants. On cross-examination, defense counsel then questioned Sgt. Folsom about the intercepted phone calls:
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 numbers [that] was calling us, yes.
Specifically, Sgt. Folsom testified that police had determined through surveillance of Beltran's phone calls that some of those calls were between Beltran and someone using a phone number that was not in Bourassa's name, but was associated with his girlfriend's Facebook account. Surveillance recordings revealed, however, that the phone number was being used by someone with a male voice. Sgt. Folsom's cross-examination continued as follows:
Q. Okay. So when was the first time that Mr. Bourassa was linked to the actual phone, not just that number, but the actual phone?
A. I believe it was - I have to go back and look at the phone calls, but I believe it's when he called and set up a drug deal and was surveilled, we got pictures of him.
Q. Okay. And so it's your belief and testimony that he 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.
Q. Okay. And how was it that you were able to identify his voice as a person on the other end? How did you make that link?
A. Basically, we didn't. I mean, it was just a phone number that he called - a male voice called and set up a drug transaction, he was surveilled to a location. We have photographs of him showing up at the exact same time and we followed him back. You know, all evidence indicated that it was him.
On redirect examination, Sgt. Folsom testified that he had never met or interviewed Bourassa; that he had no reason to know what Bourassa's voice sounded like; that he believed it was Bourassa's voice on the recorded calls "[b]ased on the evidence we developed"; that "it's basically a guesstimate that that's [Bourassa's] voice on the [calls]"; and that Bourassa never admitted that it was his voice.
**332The trial court denied Bourassa's motion to suppress on the basis that Bourassa did not have standing, reasoning that:
The evidence developed during the hearing came solely from the [S]tate. The defendants[3 ] did not offer any evidence. Specifically, the defendants did not offer any evidence that they were parties to any of the conversations intercepted pursuant to any of these orders. The defendants also did not stipulate or concede that they are parties to any of those conversations. As to any intercepted conversation to which the defendants were not parties, they have no standing. ... It is also clear that the defendants bear the burden to establish their standing. They have not offered any evidence of their standing, nor can they rely on the State's position, contention or theory to establish standing.
*192After Bourassa was tried and convicted, he moved for a new trial, raising as error the trial court's failure to suppress the intercepted telecommunications. In its order denying the motion for new trial, the trial court ruled that, because there was no evidence, stipulation, or concession at the hearing that either defendant was a party to any intercepted conversation, the court "remain[ed] satisfied that Bourassa did not show that he had standing to object to the wiretap evidence."
The Court of Appeals affirmed Bourassa's convictions, although it remanded the case for further consideration of certain ineffective assistance of counsel claims. Bourassa v. State ,
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 [Sgt. Folsom], merely confirmed the State's theory that it was Bourassa's voice that could be heard on the recorded calls.
Id. at 466,
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 party to the calls, the trial court was authorized to find that Bourassa did not satisfy his burden of establishing standing.
Id. at 467,
We granted Bourassa's petition for certiorari and posed a single question: "Did the Court of Appeals err in affirming the trial court's ruling that Bourassa lacks standing to seek to suppress the intercepted phone conversations?" Because the Court of Appeals evaluated standing under the wrong legal standard, we vacate the judgment of the Court of Appeals and remand the case to that court with further direction to remand the case to the trial court for reconsideration in accordance with this opinion.
Bourassa contends that the Court of Appeals erred by affirming the trial court's ruling that he lacked standing to suppress the intercepted phone conversations. To support his argument that he established standing, Bourassa points to testimony (which he characterizes as "direct evidence") his trial counsel elicited during cross-examination of Sgt. Folsom in which Folsom agreed that it was his "belief and testimony" that Bourassa "was a party to some of the phone calls that were tapped" and that Bourassa "was part of the conversations that we received."
The standard for obtaining an investigation warrant in Georgia closely mirrors the federal standard. Indeed, since 2002, OCGA § 16-11-64 (c) has incorporated into Georgia law the federal-law standard for obtaining an investigation warrant. See
Here, Bourassa contends that the following testimony elicited during Sgt. Folsom's cross-examination at the motion to suppress hearing established Bourassa's standing:
Q. Okay. And so it's your belief and testimony that he 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 Court of Appeals rejected that argument, and in so doing committed two fundamental errors in its standing analysis.
First, in holding that Bourassa had not established standing in this case, the Court of Appeals endorsed the notion that a movant must offer evidence "independent of the government's evidence" to prove standing.
Moreover, the Court of Appeals' analysis contravenes both general trial procedure and the specific procedure that has been applied to evaluate standing in suppression hearings. In particular, the Court of Appeals was mistaken in its conclusion that a party seeking to establish standing cannot satisfy its burden by pointing to evidence offered by the other party.
Applying that general rule here, the Court of Appeals was correct to the extent it suggested that Bourassa could not rely on a mere position, contention, or theory of the State. See Bourassa ,
Second, the Court of Appeals rejected the argument that testimony elicited during Sgt. Folsom's cross-examination was "evidence" and erroneously characterized his testimony as "merely confirm[ing] the State's theory that it was Bourassa's voice that could be heard on the recorded calls."
But even if Sgt. Folsom's responses on cross-examination were not interpreted as providing direct evidence, Bourassa was not required to rely only on direct evidence to establish standing; he could have also relied on circumstantial evidence.
**337In other contexts, we have held that circumstantial evidence that is admissible under our Evidence Code can be as probative as direct evidence and can be sufficient to support a conviction. See OCGA § 24-14-6 ; Carter v. State ,
In sum, the Court of Appeals erroneously concluded that Bourassa had to present his own evidence to prove standing and that circumstantial evidence could not suffice to meet that burden. As a result, the Court of Appeals did not properly evaluate Bourassa's arguments about the evidentiary value of Sgt. Folsom's testimony. Moreover, because the trial court did not make findings or credibility determinations about Sgt. Folsom's testimony, the Court of Appeals had nothing to review on appeal in that regard. Accordingly, we vacate the judgment of the Court of Appeals and remand the case to that court with direction to remand the case to the trial court for appropriate consideration of the evidence related to standing. See State v. Abbott ,
Judgment vacated and case remanded with direction.
All the Justices concur, except Bethel, J., who is disqualified.
Officers testified at trial that they confirmed JB's identity as Bourassa through a series of phone calls and texts that led them to the Facebook page of Bourassa's girlfriend, which in turn led them to a photograph officers were able to use to visually identify Bourassa.
In his motion, Bourassa also asserted that the warrants violated the Georgia Constitution of 1983, Art. I, Sec. I, Par. XIII. But "we generally interpret [that provision] consistent with the Fourth Amendment." Olevik v. State ,
Bourassa's girlfriend was a co-indictee who also challenged the admissibility of the communications intercepted in March 2013 pursuant to an investigation warrant. She entered a negotiated guilty plea four months before trial.
Notably, the Court of Appeals appears to have contradicted its own analysis in this regard by later acknowledging that standing could have been established in this case through "evidence presented by the State or adduced through cross-examination [of State witnesses]." Bourassa ,
Because the trial court completely discounted the possibility that Sgt. Folsom's testimony on cross-examination could constitute evidence on which Bourassa could rely to establish standing, the trial court (like the Court of Appeals) was also misguided when it concluded that Bourassa did not have standing because he had not offered his own evidence at the motion to suppress hearing.
We note that the trial court made a similar error when it concluded that "[t]he evidence at the [suppression] hearing did not include any evidence that [Bourassa] was a party to any of the conversations that were intercepted pursuant to any of the orders," thereby completely discounting the evidentiary value of Sgt. Folsom's testimony on cross-examination.
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