Federal District Court Opinions

Plaintiff, v. (1) CHRISTOPHER WILLIAM SMITH a/k/a “Chris
Jonson,” a/k/a “Tony Spitalie,” a/k/a “Bruce Jonson,” a/k/a
“Robert Jonson,” (2) PHILIP MACH, (3) BRUCE JORDAN
GRIEPP, a/k/a “Darrell Green,” Defendants. Criminal File
No. 05-282 (MJD/JJG). United States District Court, D.
Minnesota. August 2, 2006

Nicole A. Engisch and Elizabeth C. Peterson, Assistant
United States Attorneys, Counsel for Plaintiff United States
of America.

Joseph S. Friedberg, Lisa Lodin Peralta, and Casey
Oppenheim, Joseph S. Friedberg, Chartered, Counsel for
Defendant Christopher Smith.

Bruce G. Cassidy, Bruce G. Cassidy & Associates, PA, and
Steven E. Wolter and Dan Scott, Kelley & Wolter, P.A.,
Counsel for Defendant Philip Mach.

Paul C. Engh, Engh Law Office, Counsel for Defendant Bruce

Earl P. Gray, Gray & Malacko, Counsel for Defendant Daniel

Caroline Durham, Durham Law Office, Counsel for Defendant
Darrell Griepp.


MICHAEL DAVIS, District Judge


This matter is before the Court on pretrial motions by
Defendants and the Government. A hearing on these motions
was held on May 1, 2006. During the hearing, the Court
ruled on all but the following motions, which the Court
took under advisement: Adkins’ Motion to Suppress Evidence
Obtained as a Result of Search and Seizure [Docket No.
198]; Motion to Dismiss Consistent with Gonzales v. Oregon
[Docket No. 212]; Motion to Dismiss for Reasons of Double
Jeopardy [Docket No. 213]; Lieberman’s Motion for Bill of
Particulars [Docket No. 218]; Smith’s Motion to Suppress
[Docket No. 237]; and Griepp’s Motion for Bill of
Particulars [Docket No. 240]. Griepp has also requested
suppression of evidence obtained as a result of search and


The Second Superseding Indictment was filed on March 21,
2006, against five defendants, Christopher Smith, Philip
Mach, Bruce Lieberman, Daniel Adkins, and Darrell Griepp.
Count One alleges conspiracy to distribute and dispense
controlled substances against all five Defendants. Counts
Two through Seven allege wire fraud against Smith, Mach,
Adkins, and Griepp. Counts Eight through Ten allege
unlawful distribution and dispensing of controlled
substances against all five Defendants. Counts Eleven
through Fifteen allege introduction of misbranded drugs
into interstate commerce against all five Defendants. Count
Sixteen alleges conspiracy to commit money laundering
against Smith and Lieberman. Count Seventeen alleges
continuing criminal enterprise against Smith.

The parties have filed approximately forty pretrial
motions. The Court heard oral argument on those motions on
May 1, 2006, as well as the testimony of Agent Chad Vetter
and Defendant Smith with regard to the motions to suppress
evidence seized as a result of the various search warrants.


A. Motions to Dismiss

1. Motion to Dismiss Consistent with Gonzales v. Oregon
[Docket No. 212]

Lieberman, joined by Smith, Adkins, and Griepp, moves to
dismiss the charges against him on the grounds that the
federal Government cannot set the standards for the
practice of medicine online. Lieberman notes that there is
no federal statute which specifically prohibits the
distribution of prescription drugs online. He claims that
the prescriptions in this case were issued by a licensed
physician, filled by a licensed pharmacy, and sent to
customers who requested the drugs.

Lieberman’s motion is based on the recent Supreme Court
holding that the Attorney General “is not authorized to
make a rule declaring illegitimate a medical standard for
care and treatment of patients that is specifically
authorized under state law.” Gonzales v. Oregon, 546 U.S.
___, 126 S. Ct. 904, 916 (2006). The Attorney General does
not have the “authority to declare an entire class of
activity outside the course of professional practice and
therefore a criminal violation of the CSA [“Controlled
Substances Act”].” Id. at 909.

“[T]he CSA creates a comprehensive, closed regulatory
regime criminalizing the unauthorized manufacture,
distribution, dispensing, and possession of substances
classified in any of the Act’s five schedules.” Id. at 911
(citation omitted). “Dispensing controlled substances
without a valid prescription . . . furthermore, is a
federal crime.” Id. at 914 (citations omitted). A
regulation promulgated under the CSA “requires that every
prescription for a controlled substance `be issued for a
legitimate medical purpose by an individual practitioner
acting in the usual course of his professional practice.'”
Id. at 912 (quoting 21 C.F.R. § 1306.04(a) (2005)).
In Gonzales, the Supreme Court determined that the Attorney
General was not empowered to declare physician-assisted
suicide illegal under the CSA, when it was explicitly
permitted by Oregon law. Id. at 925.

The Supreme Court noted that it was not deciding whether
“deference would be warranted for an interpretation issued
by the Attorney General concerning matters closer to his
role under the CSA, namely preventing doctors from engaging
in illicit drug trafficking.” Gonzales, 126 S. Ct. at 922.
Furthermore, the opinion did not address prosecution
decisions by the Government.

Under Gonzales, the Government enforces the CSA in light
of the states’ regulation of the practice of medicine. Id.
at 923. However, the Supreme Court made clear that
“Congress regulates medical practice insofar as it bars
doctors from using their prescription-writing powers as a
means to engage in illicit drug dealing and trafficking as
conventionally understood;” the CSA “bars doctors from
peddling to patients who crave the drugs for those
prohibited uses.” Id. at 923, 925 (citing United States v.
Moore, 423 U.S. 122, 135 (1975)). The ultimate decision of
whether a doctor’s conduct exceeded the bounds of
professional practice is decided by the jury. See Moore,
423 U.S. at 142-43 (holding that “[t]he evidence presented
at trial was sufficient for the jury to find that
respondent’s conduct exceeded the bounds of “professional
practice,'” where “he gave inadequate physical examinations
or none at all,” ignored test results, “took no precautions
against [methadone’s] misuse and diversion,” “did not
regulate the dosage at all, prescribing as much and as
frequently as the patient demanded,” charged not for
medical services but by the “number of tablets desired,”
and “acted as a large-scale `pusher’ not as a physician”).

In this case, there is no applicable state law explicitly
permitting the issuance of prescriptions online in the
manner alleged in the Second Superseding Indictment. In
fact, New Jersey, the state from which Mach practiced, has
administrative rules requiring physical examinations before
a physician distributes a controlled substance. N.J. Admin.
Code 13:35-7.1a, 7.6. Minnesota law does permit
out-of-state physicians to provide medical services in a
limited manner to patients within Minnesota, provided that
they follow certain requirements, including registration
with the state. Minn. Stat. § 147.032. However,
there is no showing that Defendants met the requirements of
the Minnesota statute.

Because no applicable state law clearly permits
Defendants’ conduct, the Government’s prosecution will not
invalidate an express state law. The Government’s
prosecution falls within the bounds of the CSA to regulate
illicit drug trafficking and dealing. Gonzales does not
provide a basis for dismissal of the indictment. See United
States v. Edwin, No. 05 CR 0490, 2006 WL 763653, at *5
(N.D. Ill. Mar. 22, 2006) (denying defendant’s motion to
dismiss indictment for distributing hydrocodone not for a
legitimate medical purpose in the usual course of his
professional medical practice based on Gonzales and holding
that Gonzales did not invalidate federal regulation
requiring prescriptions for controlled substances to be
issued for a “legitimate medical purpose” by an individual
practitioner acting in the usual course of his professional
practice) (citing 21 C.F.R. § 1306.04).

Finally, Lieberman’s argument that the Health Insurance
Portability and Accountability Act of 1996 (“HIPAA”)
prohibited him from viewing the online pharmacy’s patient
records and knowing which patients were receiving drugs
from the pharmacy and for what purpose does not support a
motion to dismiss. Simply because HIPAA may have prohibited
Lieberman from knowing certain patient information, a
proposition which Lieberman has not supported with any
specific statutory or regulatory citation, does not mean
that he could not possibly have possessed the knowledge or
intent required by the charges in the Second Superseding
Indictment. In any case, the Government does not allege
that the online pharmacy followed HIPAA regulations.

For the above reasons, the Court denies the motion to
dismiss based on Gonzalez.

2. Motion to Dismiss for Reasons of Double Jeopardy
[Docket No. 213]

Lieberman, joined by Smith, also moves to dismiss the
Second Superseding Indictment on the grounds that jeopardy
attached at his trial on the criminal contempt charges. The
criminal contempt Order to Show Cause, dated June 24, 2005,
charged Lieberman and Smith with knowingly and willfully
violating the May 20, 2005, civil Preliminary Injunction
against them by participating in “operating a business that
purports to sell or provide prescription drugs to the
public in violation of the wire and mail fraud statutes”
and “operating or controlling any website that purports to
sell or provide prescription drugs to the public under any
name or title in violation of the mail and wire fraud
statutes.” Smith was also accused of violating the
Preliminary Injunction freezing his assets by withdrawing
money from a frozen account, but that charge is not at
issue here.

The Second Superseding Indictment charges Lieberman with
conspiracy to distribute and dispense controlled
substances, lasting from January 2004 until June 24, 2005;
unlawful distribution and dispensing of controlled
substances on March 31, 2005; April 29, 2005; and May 6,
2005; introduction of misbranded drugs into interstate
commerce on March 31, 2005; April 20, 2005; April 25, 2005;
and April 28, 2005; and conspiracy to commit money
laundering, for the period September 2004 through June 24,
2005. Lieberman is not charged with wire or mail fraud.

Smith is charged with the same counts, plus multiple counts
of wire fraud occurring on March 25, 2005; April 11, 2005;
April 14, 2005; and April 29, 2005; and continuing criminal
enterprise for the period January 2004 until June 24, 2005.

On July 6, 2005, a trial commenced on the criminal
contempt charges to determine whether Lieberman and Smith
committed criminal contempt by violating the Preliminary
Injunction in the manner previously described. On September
15, 2005, the Court deferred final disposition of the
contempt proceedings until the conclusion of this criminal

“[C]riminal contempt, at least in its nonsummary form, `is
a crime in every fundamental respect.'” United States v.
Dixon, 509 U.S. 688, 699-700 (1993). In this case, jeopardy
attached at the start of the two days of testimony on July
6, 2005. Serfass v. United States, 420 U.S. 377, 388 (1975)
(“In a nonjury trial, jeopardy attaches when the court
begins to hear evidence.”).

The Double Jeopardy clause provides that “no person shall
be subject for the same offence to be twice put in jeopardy
of life or limb.” United States v. Dixon, 509 U.S. 688,
695-96 (1993) (quoting U.S. Const., Amend. 5). Thus, a
defendant cannot be subjected to “successive punishments
[or] to successive prosecutions for the same criminal
offense.” Id. at 696. “[W]here the two offenses for which
the defendant is punished or tried cannot survive the
`same-elements’ test, the double jeopardy bar applies. The
same-elements test, sometimes referred to as the
`Blockburger’ test, inquires whether each offense contains
an element not contained in the other; if not, they are the
`same offence’ and double jeopardy bars additional
punishment and successive prosecution.” Id. (citations

In Dixon, the Supreme Court held that the criminal
contempt prosecution of the defendant for possessing
cocaine in violation of a pretrial release order for the
underlying second degree murder charge barred a subsequent
criminal prosecution based on possession of that same
cocaine with intent to distribute. Id. at 691-92, 699-700.
The court reasoned that the “drug offense did not include
any element not contained in his previous contempt
offense.” Id. at 700. The drug offense was a type of lesser
included offense. Id. at 698.

Lieberman argues that, in this case, the Preliminary
Injunction barred him from committing wire and mail fraud,
laundering funds, and distributing drugs over the internet.
Similarly, the Second Superceding Indictment accuses him of
conspiracy and distribution of drugs and money laundering.
Additionally, he claims that the contempt citation has no
time limit and the offenses were continuous. He notes that
the Government’s contempt case included witnesses who had
involvement in Smith’s business both before and after May

Double jeopardy does not bar any of the charges against
Lieberman or Smith. To determine whether double jeopardy
applies, the Court does not look at the contents of the
Preliminary Injunction, which is a preliminary, civil,
remedial matter, that does not constitute punishment and is
related to the current criminal prosecution. See, e.g.,
United States v. Volanty, 79 F.3d 86, 89 (8th Cir. 1996)
(“Concurrent civil and criminal proceedings, based on the
same facts, do not violate the double jeopardy clause when
the separate proceedings take the form of a `single,
coordinated prosecution.'”) (citation omitted); S.E.C. v.
O’Hagan, 901 F. Supp. 1461, 1470 (D. Minn. 1995) (“As to
the permanent injunction, [defendant] cites no authority
that an order enjoining future securities violations is
anything but remedial and the Court thus rejects that
claim.”). Instead, the Court must analyze the charges in
the criminal contempt trial: charges of criminal contempt
that include violation of the mail and wire fraud statute
as included elements. (The contempt charges also contain
other elements, such as the existence of a lawful and
reasonably specific order of the court, notice of the
order, and willful disobedience of that order. United States
v. KS & W Offshore Eng’g, Inc., 932 F.2d 906, 909 (11th
Cir. 1991); United States v. Powers, 629 F.2d 619, 627 (9th
Cir. 1980).) Lieberman is not charged with mail or wire
fraud in the Second Superseding Indictment. The criminal
contempt charge, based on mail and wire fraud, contains
additional elements not contained in the current criminal
charges, and the current criminal charges against Lieberman
each contain different elements not contained in the
contempt charge. The motion to dismiss the counts against
Lieberman on grounds of double jeopardy is denied.

Similarly, the non-wire fraud charges against Smith are
not barred under the Blockburger test because they each
contain additional elements not contained in the criminal
contempt charge, and the criminal contempt charge contains
additional elements not contained in the non-wire fraud

Unlike Lieberman, Smith was charged with wire fraud in the
criminal case, and wire and mail fraud were lesser included
offenses in the contempt charges. Despite the fact that
wire fraud is a generally a lesser included offense of the
criminal contempt charge, there is no double jeopardy bar
in this case. “If the individual acts are the target of the
law, then separate indictments and prosecutions are
permissible, even if the acts together constitute a common
course of action.” United States v. Gardner, 65 F.3d 82, 85
(8th Cir. 1995). “So it is with the mail fraud statute.
Under 18 U.S.C. § 1341, it is not the plan or scheme
that is punished, but rather each individual use of the
mails in furtherance of that scheme.” Id. Thus, even though
multiple acts of mail or wire fraud may form part of one
overall scheme and occurred during the same time period,
“the separate instances of mailings in furtherance of the
alleged fraud . . . are separately prosecutable despite the
presence of only one general scheme. Further, the charges
simply do not constitute the `same offense’ because each
charge of mail fraud `requires proof of an additional fact
which the other does not,’ namely the use of the mails
specified for each particular count.” Id. (citations

Because the specific incidents of wire fraud alleged in
the Second Superceding Indictment are based on different
wires on different dates from the criminal contempt charges
— all occurred before the issuance of the
Preliminary Injunction and, thus, were not committed in
violation of the Preliminary Injunction — double
jeopardy does not apply to the wire fraud counts against
Smith. The motion to dismiss the counts against Smith on
grounds of double jeopardy is denied.

B. Motions to Suppress

1. Smith’s Motion to Suppress [Docket No. 237]

Smith moves to suppress all evidence seized pursuant to
certain search warrants applied for and issued in May 2005
on the grounds that those warrants were not described with
sufficient particularity, were not supported by probable
cause, and were obtained in bad faith. In his post-hearing
memoranda, Smith withdraws his motion to suppress with
regard to multiple warrants, leaving only the following
searches and warrants at issue: the Burnsville residence;
the Prior Lake residence; Online Payment Solutions offices
in Suite 150, 12400 Portland Avenue South, Burnsville,
Minnesota; Same Day Pay Day offices in Suite 100, 12400
Portland Avenue South, Burnsville, Minnesota; Pixius
Communications servers; Burnsville warehouse at 12010 12th
Avenue, Burnsville, Minnesota; Ultimate Limousine offices
at 12700 Zenith Avenue, Suite 105, Burnsville, Minnesota;
1996 white Hummer Limousine, 1996 black Hummer Limousine,
and 2004 Cadillac DeVille Limousine.

All of the search warrants were based on the same search
warrant affidavit prepared by Special Agent Chad Vetter.
Additionally, all of the search warrants contained
substantially the same attachment listing items to be
searched and seized.

a. Standing

The Government alleges that Smith does not have standing
to challenge the searches, other than the searches of his
homes, because most of the warrants were for businesses or
vehicles not in Smith’s name. In its post-hearing
memorandum, the Government concedes that Smith has standing
to object to the searches of the Prior Lake residence and
the Burnsville residence.

i. Standard

“One claiming a Fourth Amendment violation must show that:
(1) he had a legitimate expectation of privacy, and (2)
that expectation was invaded by government action.” United
States v. Welliver, 976 F.2d 1148, 1151 (8th Cir. 1992). In
order to determine whether a defendant has a legitimate
expectation of privacy in the thing searched, the Court
asks two questions: 1) whether the defendant “asserted a
subjective expectation of privacy,” and 2) whether that
“subjective expectation is objectively reasonable.” Id.

Fourth Amendment rights are personal and may not be
asserted vicariously. United States v. Gomez, 16 F.3d 254,
256 (8th Cir. 1994). In order to demonstrate standing, a
defendant bears the burden of proving that he has a
reasonable expectation of privacy in the area that was
searched. Id.

Factors relevant to the determination of standing
include: ownership, possession and/or control of the area
searched or item seized; historical use of the property or
item; ability to regulate access; the totality of the
circumstances surrounding the search; the existence or
nonexistence of a subjective anticipation of privacy; and
the objective reasonableness of the expectation of
privacy considering the specific facts of the case.

Id. (citations omitted).

ii. Automobiles

Smith asserts that he has standing to object to the
searches of three vehicles: the 1996 white Hummer
Limousine, the 1996 black Hummer Limousine, and the 2004
Cadillac DeVille Limousine. “[A] person has no reasonable
expectation of privacy in an automobile belonging to
another.” United States v. Green, 275 F.3d 694, 699 (8th
Cir. 2001) (citing Rakas v. Illinois, 439 U.S. 128, 148-49
(1978)). “[W]here defendants had no possessory interest in
the vehicle searched, they had no legitimate expectation of
privacy therein.” United States v. Macklin, 902 F.2d 1320,
1330 (8th Cir. 1990) (citation omitted). “[T]o have a
legitimate expectation of privacy by way of a possessory
interest, defendant must have possession of the vehicle and
the keys.” Id. (citations omitted). The mere fact that
defendant purchased the vehicles in a corporate name does
not confer standing. See United States v. Willis, 759 F.2d
1486, 1499 (11th Cir. 1985) (holding defendant failed to
establish standing to object to vehicle searches when only
nexus was that defendant bought vehicles in name of
corporation, but no evidence existed regarding “the source
of the money used to purchase the vehicles, nor any proof
that [defendant] had ever driven or even been in the

At the hearing, Smith testified that he had an expectation
of privacy within his automobiles, although he did not
explicitly refer to the three vehicles now at issue. (Tr.
at 62.) Smith also testified that he purchased the
automobiles with corporate funds that were loans from the
company, Online Payment Solutions, and “[s]ome of them
were” exclusively his, and “[if] not mine, the company’s.”
(Id.) He asserted that people could not use the vehicles
without his permission. (Id.)

Smith also testified that he drove some of the cars himself
and also had a driver, James Howard. (Id. at 53.) The
search warrant affidavit listed all three vehicles as
Smith’s assets. (Search Warrant Aff. § 43.) Smith
testified that he “had a fax machine and everything in
[his] limo and [he] used it as an office. So it was very
private. That was more of [his] office than [his] actual
office.” (Tr. at 62.)

The Government asserts that the vehicles were corporate
vehicles, not personal space in which Smith had a privacy
interest. Smith testified that each vehicle was purchased by
“the company . . . as a loan to [him] as the CEO.” (Tr. at
52.) As for the black Hummer, it was originally purchased
for Online Payment Solutions to transport employees but
then was leased to Anita Smith for the Ultimate Limousine
business. (Tr. at 52-54.) The white Hummer and the Cadillac
DeVille were also leased to the limousine business. (Id. at

Although Smith stated that he used his “limo” as a private
office, the Court finds that Smith was not referring to any
of the three vehicles at issue, but to the Mercedes
Maybach, from which no evidence was seized. Smith denied
using either Hummer as an office, noting that they did not
“even have heat.” (Tr. at 53.) He also referred to “[t]he
limousine” as “the Maybach:”

Q. And wasn’t it the case that the cars were used for
business purposes as opposed to for you own personal use?

A. Some of them were used for business purposes.

Q. Which ones?

A. The limousine, the Maybach.


The Court determines that Smith has not demonstrated
standing to object to the search of the three vehicles at
issue. Smith initially purchased the vehicles with
corporate money, and then the three vehicles were leased to
Ultimate Limousine for use in the limousine business. Smith
answered affirmatively to the question “Did you ever drive
any of the cars yourself?” (Tr. at 53.) However, he did not
testify that he drove or rode in the three specific
vehicles at issue; his testimony does not show that he had
a reasonable expectation of privacy in the white Hummer,
black Hummer, or 2004 Cadillac DeVille limousines. Keeping
in mind that Smith bears the burden of establishing
standing, the Court holds that he does not have standing to
object to the searches of those three vehicles.

iii. Warehouse and Business Locations

Smith objects to the warrants issued to search the premises
of Same Day Pay Day, Online Payment Solutions, Ultimate
Limousine, and the Burnsville warehouse. He claims that he
owned, operated, regulated access to, or controlled the
property at each business location.

“It has long been settled that one has standing to object
to a search of his office, as well as of his home.” Mancusi
v. DeForte, 392 U.S. 364, 369 (1968). If a defendant
“occupied a `private’ office,” then he would have standing
to challenge the seizure of records from his desk or filing
cabinet. Id. Even if the defendant shared his office with
others, it is possible that he “still could reasonably have
expected that only those persons and their personal or
business guests would enter the office, and that records
would not be touched except with their permission or that
of . . . higher-ups.” Id.

However, a defendant does not have standing to object to a
seizure of corporate records merely because he is a
corporate officer. United States v. Britt, 508 F.2d 1052,
1055-56 (5th Cir. 1975). There must be a “demonstrated
nexus between the area searched and the work space of the
defendant.” Id. at 1056. So, where “plaintiffs worked in a
large two-room shed that contained 75 people[,] . . . had
no private space in any part of the building, and no
authority to exclude others,” they had no reasonable
expectation of privacy in the workplace. Martinez v.
Nygaard, 831 F.2d 822, 826 (9th Cir. 1987).

aa. Online Payment Solutions Suite

Smith testified that he established the lease for the
suite using Online Payment Solutions’ funds and controlled
everything in this office. (Tr. at 27, 57-58.) He
engineered a security system for it and exclusively
regulated access to it. (Id. at 27-28, 33.) He testified
that no one could enter or exit or use anything within the
office without his authorization. (Id. at 57.) Smith
claimed he had the absolute right to look at anything and
access anything in these office at all times, and that
everyone in the office knew this. (Id. at 58.)

The Government asserts that Smith cannot show a privacy
interest because the areas searched consisted of other
employees’ work spaces or areas in which Smith failed to
maintain exclusive control.

Whether a corporate officer has standing to challenge the
search of business premises depends upon whether the
officer has made a “sufficient showing of a possessory or
proprietary interest in the area searched,” and whether
the officer has demonstrated a sufficient nexus between
the area searched and his own work place. Generally,
courts tend to find that these two elements are
sufficiently established when the area searched is set
aside for the defendant’s exclusive use, such as an
individual office. However, courts are more skeptical of
standing claims when the defendant only occasionally used
the area searched. The greater the degree of exclusivity
and control over a work area, and the more time a
defendant spends there, the more likely standing is to be
found. By contrast, the less private a work area —
and the less control a defendant has over that work area
— the less likely standing is to be found.

United States v. Najarian, 915 F. Supp. 1441, 1452 (D.
Minn. 1995) (quoting United States v. Hamdan, 891 F. Supp.
88, 94-95 (E.D.N.Y. 1995)) (citations omitted).

The Government asserts that Smith cannot establish an
expectation of privacy over the telemarketing area of the
office suites. It notes that there were over one hundred
employees who worked at various work stations, including
over seventy-five sales agents or telemarketers. (Tr. at
32, 35.) Smith did not use any of those computers; nor did
he otherwise occupy those work spaces. (Tr. at 35.) The
Government also notes that managers and other employees had
their own computers in their own offices or work space
within the office suite. (Tr. at 36-38.)

The Government further claims that Smith does not have
standing with respect to his own office and computer in the
Online Payment Solutions suite because others, including
Terry Chang, had access to Smith’s office and computers and
the computers were not locked. (Tr. at 43.) It argues that
the lack of exclusivity negates Smith’s expectation of
privacy in his office or computers.

The Court concludes that Smith clearly has standing to
object to the search of his personal office and computer.
Under Mancusi, the fact that he shared his space with
others does not negate his reasonable expectation that only
those persons or their guests would enter his office and
that no one would touch his records without his or their
permission. Additionally, the Court concludes that Smith
has standing to object to the search of the rest of the
Online Payment Solutions suite. Although much of the suite
consisted of an area that was open to scores of employees
at open workstations, Smith owned and controlled the
company, participated heavily in its affairs, was present in
and controlled access to the suite, and had his office in
the suite. These facts are “sufficient for the Court to
find that he had a legitimate expectation of privacy in the
entire suite of [the company’s] offices.” United States v.
Schwimmer, 692 F. Supp. 119, 125 (E.D.N.Y. 1988).

bb. Same Day Pay Day Suite

Smith makes the same argument for Same Day Pay Day as he
does for Online Payment Solutions. However, unlike the
Online Payment Solutions suite, the Same Day Pay Day suite
did not contain Smith’s office. The Same Day Pay Day
offices in Suite 100 housed offices for Griepp and Adkins.
(Tr. at 42.) Although Smith had a desk in that suite, he
only used it “occasionally” to assist with employee
training by making photocopies, but not to create or print
documents or use a computer. (Id.) Court are “skeptical of
standing claims when the defendant only occasionally used
the area to be searched.” Najarian, 915 F. Supp. at 1452.

The Court concludes that Smith has not met his burden of
demonstrating standing to object to the search of Same Day
Pay Day. Although Smith exercised some control over the
office suite by establishing the security system for the
office and limiting access to the suite, Smith was not the
day-to-day user of the corporation’s suite. He did not have
a private office in the suite, but only a desk that he
occasionally used. He has not shown the required nexus
between the Same Day Pay Day suite and his personal work
area, which was located in another office suite.

cc. Ultimate Limousine

Smith testified at the hearing that he and his wife
operated Ultimate Limousine. (Id. at 46, 58-60.) They
exclusively controlled access to the locked office of
Ultimate Limousine. (Id. at 47, 58-60.) He testified that
he and his wife had an expectation of privacy in the
Ultimate Limousine offices to the exclusion of anyone else.
(Id. at 58-59.) Thus, he argues, he had an objectively
reasonable expectation of privacy.

However, Smith only visited the Ultimate Limousine offices
once a week for a few hours or less, had no office space
there, and kept no documents or other materials there. (Tr.
at 46-47.) Other employees worked there and customers came
in and out to pay for their limousines. (Id. at 47.)

Although Smith co-owned the business that operated the
premises, he had no private space on the premises, stored
no belongings or documents there, and rarely visited. Smith
bears the burden of establishing standing. The Court
concludes that Smith does not have standing to object to
the search of the Ultimate Limousine premises.

dd. Warehouse

Smith also claims that he had a reasonable expectation of
privacy in the Burnsville warehouse, which he personally
leased to store property. He testified that he had “100
percent control” over a portion of the warehouse that he
leased and that the warehouse was always locked. (Tr. at
44, 60.) On the other hand, Smith also testified that the
owner of the warehouse, Paul Gonyea, allowed his “friends
[and] relatives” to use another portion of the warehouse,
and “[w]hoever wanted to put their stuff there, they put
stuff there.” (Tr. at 44.) The portion of the warehouse
that Smith used was not isolated or segregated from the
other portions. (Id.) Instead, “it was a mess,” and was all
mixed together because “everybody kept dumping stuff
there.” (Id.) Additionally, Ron Miller had access to the
warehouse and would move items around. (Id. at 45.) Smith
did not even know the identities of all of the people who
stored items in the warehouse space. (Id. at 46.)

Smith did not have exclusive control over the warehouse
space and his items were mixed in with the items of other
unknown people. However, the Court concludes that Smith had
a reasonable expectation of privacy in his area of the
warehouse and has standing to object to the search of the
warehouse because Smith leased the space for his personal
use, not for corporate use by one of his business entities;
he paid to store his property there; and the facility was
locked. See United States v. Johns, 851 F.2d 1131, 1136
(9th Cir. 1988) (holding that defendant had standing to
object to search of storage unit when he co-owned the items
found in the storage unit and paid a portion of the rental
payments on the unit).