Case Information
*1 Before M ANION T INDER Circuit Judges L EE District Judge .
L EE District Judge . While executing warrant, found illegal drugs firearm John Edward Honorable John Z. Lee, District Judge District Court Northern District Illinois, sitting designation. Scott’s home. Scott subsequently indicted for two drug offenses two firearms offenses. The submitted by obtain warrant described controlled drug buys in which used confidential informant (“CI”) purchase from Gerald Reynolds. On each occasion, after meeting with CI, drove alone returned with requested heroin. The contained sentence describing audio conversation Scott that occurred in driveway during controlled buy.
Scott filed suppress evidence seized in his house, arguing that driveway conversation obtained violation Fourth Amendment seized constituted fruit from poisonous tree. court denied motion, pled guilty possessing controlled substance with intent distribute violation U.S.C. § 841(a)(1). He sentenced months imprisonment followed eight years supervised release. permitted his plea agreement, now appeals denial his suppression motion, arguing reasonable expectation privacy driveway conversation that, without government lacked obtain
For reasons given below, we conclude there sufficient apart establish warrant. Thus, we need reach expectation privacy Reynolds and affirm the court’s denial Scott’s to suppress.
B ACKGROUND
On August Allen County, Indiana detectives arranged CI buy heroin Reynolds in Fort Wayne, Indiana. Before the CI contacted Reynolds, searched the CI’s and vehicle make sure there no contraband. Detectives outfitted the CI with an audio and hid second recording device inside the CI’s vehicle.
Under detectives’ constant surveillance, CI drove motel in Fort Wayne and entered room effectuate transaction with Reynolds. From here, what started out as rather unremarkable law enforcement operation took an unusual turn.
Rather than completing transaction motel room, Reynolds called supplier arrange meeting. Reynolds then left motel CI CI’s car drove station. At gas station, exited car, Reynolds drove CI’s car alone Scott’s ‐ story, single family house attached car garage, connecting garage street approximately three car lengths long.
After Reynolds parked driveway, about half way street garage, approached driver’s side car. spoke about five minutes. During stood outside car, sat driver’s seat car. Unbeknownst either man, the audio the CI’s car was recording their conversation, and an officer was watching them nearby surveillance vehicle.
In their and Reynolds discussed the price heroin. told Reynolds he was trying to get some “yay,” which detectives believed meant cocaine, and supplier charging him $150 for “ball,” which detectives believed an eighth an ounce cocaine. Reynolds said guy who looking “quarter,” which detectives believed meant quarter an ounce cocaine. then returned to the house.
Still under surveillance, Reynolds backed out the and returned gas station. He picked up CI, pair went motel, where Reynolds handed 1.7 grams CI.
Five days later, CI performed second controlled buy. instance, detectives searched CI CI’s car ensure it did contain contraband. Under constant surveillance, CI again met with Reynolds at motel went same gas station. Reynolds then drove alone CI’s car house. This time, parked driveway, entered house about five minutes, drove back gas station. There no audio any conversation. After rendezvoused CI station, CI gave detectives 1.74 grams heroin.
Two days later, submitted ‐ page Allen County Superior Court judge seeking stated previously proven credible reliable and provided prior information that been corroborated the detectives. It also recounted the details two controlled buys and steps taken monitor and Reynolds. The affidavit’s only reference audio recording conversation between Scott and during controlled buy was sentence: “The conversation suspect and individual that residence was covert and captured concerning exchange buy money heroin.”
A issued, officers searched During search, officers found loaded handgun, grams cocaine, grams marijuana, grams bedroom. indicted on drug charges two firearms charges. He moved suppress seized grounds illegally fruit poisonous tree. district court denied motion. pled guilty possession intent distribute controlled substance, other three charges against him were dismissed. part plea agreement, reserved right appeal denial motion suppress. He now brings appeal.
D ISCUSSION
When reviewing district court’s denial suppress, we review court’s legal conclusions de novo defer court’s factual findings unless those findings are clearly erroneous. See Schmidt *6 6 12 2962
On appeal, raises issues. First, he argues district court erred in denying his request suppress his with because he had reasonable expectation of privacy in under Fourth Amendment federal wiretapping statute, U.S.C. § et seq .
Second, argues court erred denying his suppress seized during search of contends that, without contents of would not have obtain thus recovered during fruit poisonous tree. party seeking suppression bears burden
establishing expectation privacy what searched. See Pitts 449, 2003); Meyer With mind, we turn each arguments. argument, Fourth Amendment
guarantees “[t]he right people be secure their persons … against unreasonable searches seizures.” Const. Amend. IV. “[A] Fourth Amendment occurs *7 7 12 2962 when government violates subjective expectation of privacy society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 33 (2001) (citing Katz v. United States , U.S. 347, 361 (1967) (Harlan, J., concurring)); see United States v. Mendoza , 792, 2006) (“A reasonable expectation privacy is infringed when (1) defendant exhibits an actual or subjective expectation privacy (2) expectation is society is prepared recognize as reasonable.”) (citing Katz U.S.
The government agrees subjective expectation privacy his Reynolds. Thus, raised by is whether expectation privacy reasonable. reasonableness expectation privacy depends
upon “whether government’s intrusion infringes upon personal societal values protected Fourth Amendment.” California v. Ciraolo U.S. (1986) (citing Oliver (1984)). A court’s inquiry into whether defendant’s expectation privacy subject Fourth Amendment purposes “necessarily fact dependent, legitimate expectation privacy exists particular place or thing must determined case ‐ case basis.” Villegas 2007) (citation quotation omitted).
Furthermore, as Supreme Court has noted, “the Fourth Amendment protects people, not places. What knowingly exposes public, even own home or office, subject Fourth Amendment protection … [b]ut what seeks preserve as private, *8 8 12 2962 in an area accessible public, may be constitutionally protected.” Katz , U.S. at (internal citations omitted). In Katz , an individual had an objectively reasonable expectation privacy in conversation he in public telephone booth because, though booth glass, he “occupie[d] it, shut[] door behind him, pa[id] toll.” Id. at 352. Because he sought exclude “uninvited ear,” “surely entitled assume words he utters into mouthpiece will not broadcast world.” Id. ; see also Hagarty F.2d ‐ (7th Cir. 1968) (individual reasonable expectation privacy in an after hours in an office because “[t]he key defendant sought exclude ‘the uninvited ear’”) (citing Katz
Conversely, an individual who makes phone call on public phone not enclosed in booth in voice audible standing nearby “knowingly expose[s] [the conversation] public” not entitled Fourth Amendment protection. McLeod 1974) (quotation omitted); see In re John Doe Trader Number One 1990) (no reasonable expectation privacy “statements traders crowded, boisterous pits Chicago Mercantile Exchange” because making statements trading floor where FBI agent overheard them, defendant exposed statements public).
Here, contends expectation privacy view circumstances. government argues contrary. We, however, need decide *9 9 12 ‐ 2962 purposes appeal because, even assuming, arguendo , been procured illegally, search warrant sufficiently supported by facts separate apart from recording, which brings us second argument. correctly contends evidence discovered
pursuant warrant will be inadmissible if warrant secured from judicial officer through use illegally acquired information. United States v. Oakley , 944 F.2d 384, 386 (citing Silverthorne Lumber Co. v. United States , U.S. 385, (1920)). But “[a] search warrant obtained, part, which tainted can still support if ‘untainted information, considered itself, establishes warrant issue.’” United States v. Gray F.3d 2005) (quoting Oakley 386); see Karo (1984). In assessing whether results subsequent must suppressed, we consider questions: (1) whether illegally obtained affected judge’s decision warrant; (2) decision seek warrant prompted information unlawfully obtained. Id. ; Markling
Here, assuming illegally obtained, submitted obtain contained sufficient facts establish apart sentence reference conversation.
Regarding inquiry, argues without reference submitted Allen County Superior Court judge would ‐ no longer support probable cause because it would contain only circumstantial evidence – that Reynolds made a phone call a motel, dropped off CI at a gas station, went to Scott’s house, returned to station gave heroin. contends that evidence is insufficient support cause to because it is unknown what occurred at house, could have on person prior calling or coming into contact Scott. To this, adds did not observe any hand hand exchange driveway.
But “central teaching [Supreme Court] decisions bearing on cause standard is it is a ‘practical, nontechnical conception.’” Illinois v. Gates U.S. 213, (1983) (quoting Brinegar v. United States (1949)). “[P]robable is fluid concept – turning on assessment probabilities particular factual contexts – readily, or usefully, reduced neat set legal rules.” Id. 232. “Probable is established when, based totality circumstances, [to judge] sets forth sufficient evidence induce reasonably prudent believe will uncover evidence crime.” Peck
Furthermore, “[i]n issuing warrant, [judge] is given license draw inferences concerning where evidence referred likely be kept, taking into account nature offense,” including, drug related case, inference drug dealing likely found where dealer lives. Singleton (7th Cir. 1997). “Moreover, when observing activity of a suspected of criminal activity, Government agents are entitled reasonably rely upon their special knowledge and expertise assess probabilities and draw inferences,” United States v. Marin F.2d (7th Cir. 1985), judge may take into account the experience special knowledge officers if warrant explains significance specific types information. Lamon 1991). What is more, “[g]enerally, controlled buy, when executed properly, reliable indicator as presence illegal drug activity.” Sidwell Finally, it bears noting “determination should paid great deference reviewing courts.” Gates at 236. “[T]he duty reviewing court simply ensure [judge] ‘substantial basis concluding’ existed.” Id. at 39.
Here, recorded conversation was only one among many facts affidavit submitted judge. affidavit contained only sentence about conversation: “The suspect individual residence covert captured concerning exchange buy money heroin.” Apart sentence, contained array other facts, including description protocol used controlled buys. To wit, described that, during each controlled buy, CI searched ensure absence contraband under constant surveillance until turned over detectives; each occasion, CI met Reynolds, who dropped off station and, while still under surveillance, drove CI’s vehicle to Scott’s house; on occasion, house talked Reynolds; second, entered Scott’s house; on each occasion, then returned station met CI, who turned over detectives. These facts are sufficient establish probable cause search Scott’s home drugs. Indeed, probable cause determination requires only probability criminal activity, actual showing it. Gates 225. Thus, judge warrant absent description driveway conversation.
As second inquiry, decision seek warrant prompted information unlawfully obtained, argues primary reason sought
warrant. stated, however, detective’s contained many facts other than Scott’s these other facts were sufficient create support
C ONCLUSION
For these reasons, court’s denial suppress seized AFFIRMED.
[1] Under federal wiretapping statute, commonly known as “Title III” Omnibus Crime Control Safe Streets Act see Omnibus Crime Control Safe Streets Act U.S.C. §§ et seq ., oral communications may not or intercepted with electronic or mechanical absent strict compliance other provisions Title III, which government concedes were satisfied here. See U.S.C. § 2511(1)(b).