997 F.3d 749
7th Cir.2021Background
- Stafford Garbutt, a longtime employee and former intimate associate of Calumet Township Trustee Mary Elgin, became an FBI informant after being demoted; FBI Agent Nathan Holbrook directed and supervised his work.
- Holbrook instructed Garbutt to enter co‑workers’ offices (including Ethel Shelton’s) without warrants, and Garbutt copied documents, took photographs, and later made undercover recordings that he provided to the FBI.
- The FBI used Garbutt’s materials to obtain a March 2014 warrant to search the Trustee’s offices; evidence from that search formed the basis for charges against Elgin, her son, Shelton, and a deputy; Elgin and her son pled guilty; Shelton was convicted at trial of conspiracy to commit wire fraud and conspiracy to commit honest‑services wire fraud.
- Mid‑trial testimony revealed that Garbutt conducted warrantless searches at the FBI’s direction; Shelton moved for mistrial and suppression; the district court denied relief, finding she lacked a reasonable expectation of privacy and that the warrant would have issued without the challenged materials.
- The Seventh Circuit reversed: it held Shelton had a reasonable expectation of privacy; Garbutt acted as a government agent and the documents he obtained unlawfully tainted the subsequent warrant; the convictions were vacated and the case remanded.
Issues
| Issue | Shelton's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether a Fourth Amendment "search" occurred in Shelton’s private office when Garbutt (an informant) entered and copied documents | Shelton: she had a reasonable expectation of privacy in her private, enclosed office and desk; Garbutt exceeded any business‑invitee access and acted as an agent | Govt: Shelton lacked a reasonable expectation of privacy — office was monitored, high‑traffic, and workplace policies allowed searches; items on desk were in plain view | Held: Shelton had a reasonable expectation of privacy; Garbutt exceeded any implied consent; the warrantless searches violated the Fourth Amendment |
| Whether the search warrant and evidence obtained pursuant to it were tainted by the unlawfully obtained materials (fruit of the poisonous tree) | Shelton: the unlawfully collected documents and corroboration from them were critical; without them Holbrook would not have sought the warrant | Govt: any tainted material could be excised and the remaining untainted information supported probable cause; error (if any) was harmless | Held: The unlawfully obtained materials materially influenced the investigation and the decision to seek the warrant; the warrant would not have issued on the untainted record; evidence was tainted |
| Whether the government’s mid‑trial disclosure that Garbutt acted at the FBI’s direction violated Brady / Giglio | Shelton: government failed to disclose that it had directed an informant to make warrantless searches, prejudicing her defense | Govt: defense should have known or inferred the source of the materials earlier; disclosure was sufficient | Held: Court vacated conviction on Fourth Amendment/taint grounds and therefore did not resolve Brady/Giglio claims on the merits; noted government withheld the method of collection until mid‑trial |
| Sufficiency and legal theory of wire fraud / honest‑services counts (Skilling/Kelly constraints) | Shelton: evidence insufficient; honest‑services theory invalid where alleged misconduct is only use of employee time/resources; no proof of bribery/kickback agreement | Govt: Count I (money/property wire fraud) valid if object was to obtain government employees’ services; honest‑services count alleged kickbacks via ticket purchases and forced campaign work | Held: Court did not reinstate convictions; explained Count I can be valid under Kelly if employees’ services were the object; honest‑services proof must conform to Skilling, Kelly, and Hawkins on bribery/kickback requirements; prosecution constrained on remand |
Key Cases Cited
- O'Connor v. Ortega, 480 U.S. 709 (plurality) (government employees may have workplace privacy rights; context‑specific analysis)
- Mancusi v. DeForte, 392 U.S. 364 (1968) (employee standing to challenge office searches)
- Katz v. United States, 389 U.S. 347 (1967) (reasonable expectation of privacy test)
- Gouled v. United States, 255 U.S. 298 (1921) (warrantless covert seizure of papers by government agent unlawful)
- United States v. Ressler, 536 F.2d 208 (7th Cir. 1976) (agent may not exceed scope of posed role; undercover entry cannot mask a general search)
- Arizona v. Hicks, 480 U.S. 321 (1987) (moving objects to reveal incriminating evidence can constitute a search)
- Horton v. California, 496 U.S. 128 (1990) (plain‑view doctrine requirements)
- United States v. Karo, 468 U.S. 705 (1984) (tainted affidavit material can invalidate a warrant if critical to probable cause)
- United States v. Scott, 731 F.3d 659 (7th Cir. 2013) (analysis for whether illegally obtained information affected magistrate’s probable‑cause decision)
- Skilling v. United States, 561 U.S. 358 (2010) (limits honest‑services fraud to bribery/kickback schemes)
- Kelly v. United States, 140 S. Ct. 1565 (2020) (distinguishes incidental cost of employee labor from schemes whose object is to obtain employees’ services)
- United States v. Hawkins, 777 F.3d 880 (7th Cir. 2015) (receipt of gratuity absent intent to perform official act is not honest‑services bribery)