UNITED STATES of America, Plaintiff-Appellee, v. Jason T. PROCKNOW, Defendant-Appellant.
No. 14-1398.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 20, 2015. Decided April 27, 2015.
784 F.3d 421
I respectfully dissent.
Johanna M. Christiansen, Attorney, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.
Before RIPPLE, KANNE, and TINDER, Circuit Judges.
TINDER, Circuit Judge.
Defendant-Appellant Jason Procknow pleaded guilty to one count of theft of government money,
I. BACKGROUND
In connection with Procknow‘s motion to suppress, a magistrate judge conducted an evidentiary hearing, which included the live testimony of seven witnesses, and recommended factual findings. After receiving objections from both sides, the district court adopted the majority of the magistrate‘s recommended findings. Unless noted, the facts set out below are derived from those adopted by the district court.
On August 29, 2011, at about 5:45 p.m., a Wisconsin probation officer phoned the Eagan, Minnesota, Police Department (“EPD“) requesting assistance in apprehending Procknow, who had absconded approximately four months earlier while serving a term of supervised release imposed by a Wisconsin state court. Wisconsin authorities had received information that Procknow and his girlfriend, Jennifer Van Krevelen, might be staying at the Extended Stay America hotel in Eagan. The EPD received Procknow‘s photograph, a description of his car, information about Procknow‘s criminal history—including a conviction for attempted murder—and a warning that there was a high risk Procknow would run from the police.
Shortly after receiving the probation officer‘s phone call, a squad of EPD officers traveled to the hotel and asked the front-desk clerk, Christopher Schuelke, if Procknow was staying at the hotel. Schuelke could not locate Procknow‘s name in the registry because Procknow—in violation of Minnesota law and hotel policy—failed to register at the time of check-in. The offi-
The officers exited the hotel and returned to their cars. Some of the officers had driven away when one of the officers radioed that he thought he had just seen Procknow‘s car pull into the hotel lot. By the time all of the officers returned, the EPD had run the Wisconsin license plate of the car and confirmed that the car was registered to Procknow. Two officers approached Procknow‘s car and found Van Krevelen standing alone.
Another officer, Matt Ondrey, approached the hotel‘s double entrance doors. As Ondrey opened the outer door, he came face-to-face with Procknow. Ondrey asked Procknow to come outside. Procknow instead wheeled and ran through the hotel lobby; Ondrey pursued, ordering him to stop. As Procknow neared an interior door, Ondrey fired his taser, causing Procknow to lurch into the door and tumble onto the ground. By the time Procknow had been handcuffed and placed in a sitting position in the hotel lobby by Ondrey and two other officers, Procknow had been tased three times, was bleeding from facial cuts, and had some newly-broken teeth.1 In a search incident to arrest, the officers obtained from Procknow a credit card in the name of “Trevor Coon.” Paramedics were called, and they took Procknow to the hospital, accompanied by Ondrey. The officers also arrested Van Krevelen for harboring a fugitive.
EPD officer John Collins and two other officers remained at the hotel. Collins looked through the windows of Procknow‘s car and saw a scanner or copier. He reviewed the Wisconsin warrant and saw that Procknow‘s conviction underlying the supervised-release violation involved forgery. Collins returned to the front desk, informed Schuelke that both of the known occupants of room 315 had been arrested, and asked Schuelke if hotel management wanted police assistance. Collins, then a 12-year veteran of the EPD, knew the hotel manager, Adam Scheler, and knew that hotel management had asked the EPD to help eject any remaining occupants in prior incidents at the hotel that resulted in arrests. Schuelke phoned Scheler repeatedly for instructions. Scheler told Schuelke that Van Krevelen and Procknow were no longer welcome at the hotel, and their stay was being terminated. Scheler instructed Schuelke to pass this information onto the EPD officers and ask the officers to collect the dog believed to be in room 315 and ensure that there were no other occupants in the room. (It is EPD policy for officers to secure abandoned dogs and take them to Eagan‘s animal control center.)
Collins and the other two EPD officers re-approached room 315, knocked, and announced their presence. The officers were armed with an animal catch pole (a four-foot pole with a steel noose at the end) and
The officers entered the room and walked to the windows to ensure that there were no other occupants. In plain view, the officers saw an electric typewriter, “paperwork all over the place,” and a credit card issued in the name of “Smith.” The visible paperwork included financial forms bearing a variety of names, dates of birth, and social security numbers. One officer photographed the room, while another found Spike‘s leash. Taking only Spike and the leash, the officers left the room and sealed it. The officers took Spike to the city kennel, then applied for and received search warrants for the hotel room and Procknow‘s car.
In October 2011, an EPD detective met with IRS special agent Steven Kuntsman, and turned over to Kuntsman all of the documents and other evidence seized pursuant to the search warrants. Among the documents and evidence seized were blank IRS W-2 forms, blank and partially completed IRS tax forms, lists of businesses and their IRS employer identification numbers, 21 prepaid debit cards (of the sort issued for tax refunds) in the names of different people, plus completed and blank application forms for an organization called “Professional Legal and Economic Associates” (or “PLEA“). The application forms ask for, among other things, the applicant‘s full name, date of birth, social security number, driver‘s license number, and prison release date.
In November 2011, Kuntsman applied for and received a search warrant for a United Parcel Service (“UPS“) box in Minneapolis, Minnesota, which had been listed on some of the forms found in the hotel room. IRS agents tracked down and interviewed a homeless man who Procknow had paid to open the UPS box. In May 2012, Kuntsman sent administrative summonses to several financial institutions requesting information about accounts held by Procknow and suspected victims and aliases. During a one-week period in June of 2012, the following three events occurred in rapid succession: a grand jury in the Western District of Wisconsin issued a subpoena to Procknow‘s bank requesting all account information for Procknow;3 Kuntsman retracted the administrative summonses, returned all documents he had received pursuant to the summonses,
Later in 2013, the grand jury returned an indictment, and then a superseding indictment, charging Procknow with 22 counts of making false claims against the United States,
On September 13, 2013, Procknow moved to suppress all evidence discovered as a result of EPD officers’ entry into the Extended Stay hotel room, as well as evidence obtained using the grand jury subpoenas. After a hearing, the magistrate judge issued a report to the district judge pursuant to
II. DISCUSSION
Procknow contends that the district court erred in denying his motion to suppress because the EPD‘s initial warrantless entry into Extended Stay room 315 violated his Fourth Amendment rights.4 Procknow argues that he had a legitimate expectation of privacy in the room because he was a guest of Van Krevelen, the registered occupant of the room. The government counters that Procknow did not have a legitimate expectation of privacy due to his status as an absconder from supervised release who failed to register for the hotel room, in contravention of Minnesota law and hotel policy, in order to evade law enforcement.
The question of whether a search is reasonable pursuant to the Fourth Amend-
“A hotel room can clearly be the object of Fourth Amendment protection as much as a home or an office.” Hoffa v. United States, 385 U.S. 293, 301 (1966). “Fourth Amendment protection, however, is dependent on the right to private occupancy of the room since at the conclusion of the rental period, the guest has completely lost his right to use the room and any privacy associated with it.” United States v. Akin, 562 F.2d 459, 464 (7th Cir.1977) (quotation omitted). “[C]ourts recognize that motel and hotel tenancy is ordinarily short-term. If the tenancy is terminated for legitimate reasons, the constitutional protection may vanish.” Finsel v. Cruppenink, 326 F.3d 903, 907 (7th Cir.2003); see United States v. Molsbarger, 551 F.3d 809, 811 (8th Cir.2009) (“Justifiable eviction terminates a hotel occupant‘s reasonable expectation of privacy in the room.“); United States v. Allen, 106 F.3d 695, 699 (6th Cir.1997) (“Once ‘a hotel guest‘s rental period has expired or been lawfully terminated, the guest does not have a legitimate expectation of privacy in the hotel room.‘” (quoting United States v. Rahme, 813 F.2d 31, 34 (2d Cir.1987))); United States v. Rambo, 789 F.2d 1289, 1295-96 (8th Cir.1986) (holding that after a suspect was justifiably ejected from his hotel room for disorderly behavior, he “no longer had a reasonable expectation of privacy in the hotel room“). “At the conclusion of the occupancy period, the hotel manager may enter the room or consent to its search.” Akin, 562 F.2d at 464.
The district court found that “hotel staff determined that Procknow and Van Krevelen were no longer welcome and terminated their stay.” We review this factual finding for clear error. See White, 781 F.3d at 860. Procknow contends that the “evidence is equivocal” as to whether the hotel terminated their stay, noting that Schuelke, the front-desk clerk, contradicted the testimony of Scheler, the hotel manager, and the EPD officers on this point. However, both the district judge and the magistrate judge thoroughly evaluated the evidence presented at the suppression hearing, and we find no basis to disturb the district court‘s factual finding that the hotel terminated Procknow‘s and Van Krevelen‘s occupancy. See United States v. Terry, 572 F.3d 430, 434-35 (7th Cir.2009).
Moreover, we find that the termination of their occupancy—“ejection,” as it is known in Minnesota,
Procknow contends that any ejection was not effective under Minnesota law at the time that the officers entered room 315 because the hotel had not yet refunded the advance online-payment Procknow and Van Krevelen made for the room. See
Thus, Procknow‘s and Van Krevelen‘s justifiable ejection (or at least the officers’ reasonable belief on this point) extinguished any legitimate expectation of privacy Procknow may have had in room 315, and authority (or apparent authority) to consent to entry into room 315 thereby reverted to the hotel. See Molsbarger, 551 F.3d at 811; Finsel, 326 F.3d at 907; Rambo, 789 F.2d at 1295-96; Akin, 562 F.2d at 464. The district court found that, after the ejection, hotel management asked the EPD officers to enter room 315 for the purpose of clearing the room of the dog
We now turn to Procknow‘s contention that the district court erred in denying his motion to suppress the evidence obtained by grand jury subpoena, which Procknow contends was tainted by the earlier IRS administrative summonses. Procknow argues that the IRS acted in bad faith because it issued the administrative summonses for the sole purpose of furthering a criminal investigation. The government responds that, because it is undisputed that there was no Department of Justice referral in effect when the summonses were sent, the use of administrative-summons power for criminal investigation was proper. To understand these arguments, some background is necessary.
In 1978, the Supreme Court decided that the IRS may not validly issue an administrative summons (also known as a “civil summons“) for the sole purpose of a criminal investigation, even if the criminal investigation had not yet been referred to the Department of Justice for prosecution. United States v. LaSalle Nat‘l Bank, 437 U.S. 298, 317 (1978). In 1982, Congress amended the statute governing administrative summonses in two ways. First, Congress added a section providing that the IRS may issue summonses for “the purpose of inquiring into any offense connected with the administration or enforcement of the internal revenue laws.”
A majority of circuits have held “that the IRS may validly issue a summons pursuant to
Procknow relies upon Michaud and Berg to argue that “whether or not the civil summonses were issued prior to the DOJ referral is not the only relevant inquiry—a more important inquiry is whether the civil summonses were issued for the sole purpose of a criminal investigation or prosecution.” Meanwhile, the government contends that “[t]he best reading of Section 7602 is the one adopted by the majority of circuits and urged by the dissenters in Michaud,” which is to say, “[a]s long as no Justice Department referral is in effect, the use of administrative summons power for criminal investigation is proper.” But before we wade further into this murky issue, we pause to consider what might await us on the other side—i.e., what remedy is available to Procknow if we were to find that the administrative summonses were improperly issued.
In Michaud, the remedy under consideration was quashing the summonses. 907 F.2d at 751. This remedy does not advance Procknow‘s cause because all of the administrative summonses were withdrawn and all evidence received from the summonses was returned or destroyed. Procknow instead argues that the appropriate remedy here is to suppress all evidence derived from grand jury subpoenas issued after the administrative summonses.
“[T]he federal exclusionary rule, which forbids the use of evidence obtained in violation of the Fourth or Fifth Amendments, does not extend to violations of statutes and regulations.” United States v. Kontny, 238 F.3d 815, 818 (7th Cir.2001); see United States v. Caceres, 440 U.S. 741, 755 (1979) (holding that the failure of an IRS agent to follow IRS electronic surveillance regulations did not require suppression of tape recordings in prosecution of taxpayer). However, “[i]n theory,” a “valid argument for suppression” could be made if the government‘s use of “administrative measures that do not require probable cause ... undermin[ed] the Fourth Amendment‘s probable cause requirement.” United States v. Utecht, 238 F.3d 882, 886 (7th Cir.2001). Procknow offers just such an argument (i.e., “Agent Kuntsman used an IRS civil summons to circumvent probable cause and due process requirements“), but the record does not contain facts to support it. Procknow offers no basis to disturb the district court‘s finding that “Procknow did not ... prove any actual misuse of information obtained from these summonses” (or, as stated by the magistrate judge, “[t]he IRS obtained no information from the summonses“).
Utecht, and every other case relied upon by Procknow which contemplates suppression as a remedy, did so in the context of suppressing evidence directly derived from administrative summonses. Here, since all evidence directly derived from the summonses was returned or destroyed, Procknow must claim, as he does, that “the information obtained from improperly issued civil summonses taints the evidence obtained from the subsequent grand jury subpoenas.” But merely claiming the evidence is tainted does not make it so. The record simply contains no indication that the grand jury subpoenas were
Even if we were to insist upon a showing of probable cause in this situation, the government has shown that, prior to the issuance of the administrative summonses or the grand jury subpoenas, the authorities had adequate probable cause to believe Procknow was involved in stolen-identity refund theft. The authorities had a wealth of information on this score obtained (legally, as we have just held) from the search of Procknow‘s hotel room, as well as the April 2011 suspicious-activity report by Procknow‘s bank of five deposits into Procknow‘s account of tax refunds in three different names. We cannot say that the use of the withdrawn administrative summonses circumvented any probable cause requirement or otherwise violated Procknow‘s constitutional rights. Accordingly, even if the IRS issued the summonses in contravention of
We conclude that the district court did not err in denying Procknow‘s motion to suppress. The district court‘s judgment is AFFIRMED.
TINDER
Circuit Judge