306 Ga. 329 FINAL COPY
S18G1136. BOURASSA v. THE STATE.
WARREN, Justice.
In 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 extensive 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”1 that were
surveilled from March 4 to 9, 2013, the two men discussed the
exchange of large quantities of marijuana and pills, and ultimately
agreed to meet at a residence associated with Beltran on March 9,
2013. When those communications ended, Bourassa and his
girlfriend arrived at the residence previously identified in the
intercepted communications. Shortly after they left the residence, a
law enforcement officer stopped their vehicle (which matched a
description of the vehicle police surveillance had spotted arriving at
1 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. 2 and leaving the residence), obtained consent to search, found 448.5
grams of marijuana and $4,800 cash inside, and arrested Bourassa
and his girlfriend.
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.2
Bourassa 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
2 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, 302 Ga. 228, 234 (806 SE2d 505) (2017). And, like the defendant in Olevik, Bourassa “offers no reason that we should interpret Paragraph XIII differently in this context.” Id. 3 Sheriff’s Office, confirmed that neither Bourassa nor any phone
number associated with him was specified 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.
4 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.
The trial court denied Bourassa’s motion to suppress on the
basis that Bourassa did not have standing, reasoning that
5 [t]he 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.
After 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.”
3 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. 6 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, 345 Ga.
App. 463 (811 SE2d 113) (2018). As for the trial court’s denial of
Bourassa’s motion to suppress, the Court of Appeals determined
that the trial court did not err and agreed that the testimony elicited
at the suppression hearing was
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. The Court of Appeals then adopted the reasoning of
United States v. Bell, 218 Fed. Appx. 885, 895 (11th Cir. 2007), and
United States v. Chavez-Maciel, 2012 U.S. Dist. LEXIS 183038 at
*53-54 (N.D. Ga. Dec. 7, 2012), to hold that a defendant has the
burden to establish his standing to challenge the State’s use of
intercepted communications under the Fourth Amendment by
7 stipulating as to standing or bringing forward evidence establishing
standing that is independent of the government’s evidence.
Bourassa, 345 Ga. App. at 466-467. Specifically, it held that
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
8 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 id.
(explaining that a “court may issue an investigation warrant
permitting the use of a device for the surveillance of a person or
place to the extent the same is consistent with and subject to the
terms, conditions, and procedures provided for by 18 U.S.C. Chapter
119”). See also Luangkhot v. State, 292 Ga. 423, 425 (736 SE2d 397)
(2013) (noting that the 2002 amendments to OCGA § 16-11-64 were
9 “intended to streamline Georgia’s rules in this area and harmonize
them with federal standards”). Under federal law, only an
“aggrieved person in any trial, hearing, or proceeding in or before
any court . . . of . . . a State . . . may move to suppress the contents
of any wire or oral communication intercepted pursuant to [18 USC
Chapter 119], or evidence derived therefrom.” 18 USC § 2518 (10)
(a). In this context, “‘aggrieved person’ means a person who was a
party to any intercepted wire, oral, or electronic communication or
a person against whom the interception was directed.” 18 USC
§ 2510 (11). We apply a Fourth Amendment analysis, as developed
by federal and Georgia case law, to determine whether a defendant
has standing to challenge the interception of electronic
communications. Hampton v. State, 295 Ga. 665, 668-669 (763 SE2d
467) (2014).
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
10 was a party to some of the phone calls that were tapped, that were listened to on this tap?
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.4 Bourassa, 345 Ga. App. at 466 (citing United States
v. Bell, 218 Fed. Appx. at 895). But the Court of Appeals misapplied
the two federal cases, United States v. Bell and United States v.
Chavez-Maciel, on which it relied to announce that rule. Indeed, in
Bell, the Eleventh Circuit did not hold that a defendant must bring
forth his own, separate evidence to establish standing; rather, it held
that a defendant did not establish standing where the government’s
4 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, 345 Ga. App. at 467. 11 evidence showed that the defendant leased the apartment that was
searched by police, but the defendant consistently denied having any
leasehold interest in the property, such that the defendant
challenged the validity of the very evidence on which he otherwise
may have been able to rely to prove standing. 218 Fed. Appx. at 895.
See also United States v. Maxwell, 778 F3d 719, 732-733 (8th Cir.
2015) (holding that it was not clearly erroneous to find that the
defendant did not prove standing when he relied entirely on a
statement in a warrant affidavit that he had discredited by
contending it was recklessly and materially false). And in Chavez-
Maciel, a federal district court held only that the defendant could
not establish standing by pointing to evidence that the government’s
wiretap targeted a person named “Picho” and by claiming that
“Picho” was his nickname when he presented no “evidence
establishing that he [was] ‘Picho,’ he was an actual target of the
wiretaps, or he was intercepted on the wiretaps.” 2012 U.S. Dist.
LEXIS 183038 at *53. Contrary to the Court of Appeals’
characterization of that holding, the federal district court in Chavez-
12 Maciel acknowledged that the defendant in that case could have
established standing by pointing to government evidence, as
opposed to mere speculation. See id. at *54 (“Chavez-Maciel has not
pointed [to] any evidence of his own or of the Government that
conclusively establishes that he is in fact ‘Picho.’” (emphasis
supplied)).
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.5 It is generally understood
that “even if the burden of proof is on one party, it may happen that
the burden is actually met in a particular case by evidence given by
5 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. 13 the other party.” 6 Wayne R. LaFave, Search & Seizure § 11.2 (b)
(5th ed. Oct. 2018 update). Indeed, there is no categorical bar that
precludes a party seeking standing from pointing to evidence (as
opposed to mere arguments) offered by the other party; to the
contrary, the general rule with respect to standing in wiretap cases
is “that the defendant may not rely on positions the government has
taken in the case but must present evidence of his standing, or at
least point to specific evidence in the record which the government
presented that established his standing.” Id. (quoting United States
v. Zermeno, 66 F3d 1058, 1062 (9th Cir. 1995) (punctuation omitted;
emphasis supplied)). See also, e.g., United States v. Gates, 745
FSupp.2d 936, 948 n.4 (N.D. Cal. 2010) (“[A] defendant may
establish standing by pointing to all evidence in the record,
including the Government’s evidence.”); People v. Gonzalez, 502
NE2d 1001, 1002 (N.Y. 1986) (“There is no requirement that a
defendant testify in order to sustain his burden of proving standing
. . . , and evidence elicited during the People’s direct case may be
cited in support of a defendant’s standing claim.”).
14 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, 345
Ga. App. at 466. But it erred insofar as it concluded that Bourassa
could not rely on the State’s evidence to prove standing. See, e.g.,
Zermeno, 66 F3d at 1062; Gates, 745 FSupp.2d at 948 n.4; Gonzalez,
502 NE2d at 1002. Cf. Bourassa, 345 Ga. App. at 466-467. Contrary
to the Court of Appeals’ holding, therefore, Bourassa should have
been permitted to rely on Sgt. Folsom’s testimony in an attempt to
establish standing.
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.”6 Bourassa, 345 Ga. App. at
6 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. 15 466. More specifically, the Court of Appeals held that Sgt. Folsom’s
testimony — which, among other things, evinced his “belief and
testimony” that Bourassa was a party to some of the intercepted
calls — was based only on “circumstantial evidence” and thus did
not constitute “evidence presented by the State or adduced through
cross-examination” that could “establish[ ] that Bourassa was a
party to the calls.” Id. at 467. The Court of Appeals, however,
incorrectly assumed that Sgt. Folsom’s testimony did not contain
any direct evidence when at least some of his testimony could have
reasonably been construed as providing direct evidence that
Bourassa was a party to intercepted phone conversations — for
example, Sgt. Folsom’s response of: “Yeah, he was part of the
conversations that we received.” Id. at 465.
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.
In other contexts, we have held that circumstantial evidence
16 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, 305 Ga. 863, 867 (828 SE2d 317)
(2019) (holding that the circumstantial evidence of the crimes was
“strong” and “‘(t)he fact that the evidence of guilt was circumstantial
does not render it insufficient’” (citation omitted)); Outz v. State, 344
Ga. App. 616, 617 (810 SE2d 678) (2018) (circumstantial evidence
may be “‘as probative as direct evidence’” (citation omitted)). Given
that circumstantial evidence can be sufficient to support a jury’s
ultimate determination of guilt, we can identify no reason why
circumstantial evidence could not be sufficient to establish standing
at a pre-trial, motion-to-suppress stage. Cf. United States v. Davis,
799 F2d 1490, 1492 (11th Cir. 1986) (proof of consent to the
interception of a wire communication “need not consist of
testimonial evidence. The burden [of proof] also can be met by
circumstantial evidence . . . .”); United States v. Lowe, 2009 WL
1578293 at *6 (W.D. Wis., June 3, 2009) (“[A]t suppression hearings,
. . . a fact-finder may employ common sense in making reasonable
17 inferences from circumstantial evidence” (citations omitted)). We
therefore hold that a movant in a motion to suppress hearing may
rely on circumstantial evidence to meet his burden of proof to
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, 303 Ga. 297, 304-305 (812 SE2d 225) (2018); Welbon
v. State, 301 Ga. 106, 110-111 (799 SE2d 793) (2017); Williams v.
State, 301 Ga. 60, 61-62 (799 SE2d 779) (2017).
18 Judgment vacated and case remanded with direction. All the Justices concur, except Bethel, J., who is disqualified.
19 Decided June 28, 2019. Certiorari to the Court of Appeals of Georgia --- 345 Ga. App. 463. Stephen M. Reba, for appellant. Ryan R. Leonard, District Attorney, Aimee F. Sobhani, Assistant District Attorney, for appellee.