UNITED STATES of America, Plaintiff-Appellee, v. Ricardo VILLEGAS, Defendant-Appellant.
No. 05-2678
United States Court of Appeals, Seventh Circuit.
Argued April 2, 2007. Decided July 27, 2007.
Rehearing En Banc Denied Aug. 27, 2007.
495 F.3d 761
RIPPLE, Circuit Judge.
* Judge Flaum took no part in the consideration or decision of the petition for rehearing.
Taking the time necessary to get things right is both proper and lawful. Managers cannot tell lies but are entitled to investigate for a reasonable time, until they have a full story to reveal. See Stransky v. Cummins Engine Co., 51 F.3d 1329 (7th Cir.1995); In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1430-31 (3d Cir.1997) (Alito, J.). After all, delay in correcting a misstatement does not cause the loss; the injury to investors comes from the fraud, not from a decision to take the time necessary to ensure that the corrective statement is accurate. Delay may affect which investors bear the loss but does not change the need for some investors to bear it, or increase its amount.
We have so far refrained from mentioning appellants’ opening argument: that the district judge, having reconsidered his initial order dismissing the complaint, should not have re-reconsidered and dismissed it a second time. The law of the case bars re-reconsideration, plaintiffs maintain. We held this argument for last because it is frivolous. No matter what the district judge should have done as a matter of local procedure, the only question on appeal is whether the complaint is adequate. See, e.g., Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 571-72 (7th Cir.2006). The law of the case never blocks a higher court from inquiring into the subject and making the right decision. It would be absurd for this court to remand for further proceedings, only to reverse at the end of the case because the complaint flunked the PSLRA. A district court ought not be reversed for getting to a legally required outcome by a needlessly roundabout means. None of appellants’ other arguments requires comment.
AFFIRMED
Barry Levenstam, Peter A. Siddiqui (argued), Jenner & Block, Chicago, IL, for Defendant-Appellant.
Before RIPPLE, ROVNER and WOOD, Circuit Judges.
RIPPLE, Circuit Judge.
Ricardo Villegas was indicted on one count of illegal re-entry into the United States after having been deported previously on account of two aggravated felony convictions, see
I
BACKGROUND
A.
Officers Thomas Obergon and Michael Lutz were both assigned to the Milwaukee Police Department‘s (“MPD“) Gang Squad and knew Mr. Villegas and Ephraim Munoz to be members of the Mexican Posse. They also knew that Munoz was wanted in connection with a homicide. In addition, as part of his regular investigation of gang members, Officer Obergon had learned from the United States Department of Homeland Security (“DHS“) that Mr. Villegas had been deported previously on account of his status as an aggravated felon. Officer Obergon also had run Mr. Villegas’ name through the National Crime Infor
On August 20, 2004, Officers Obergon and Lutz received a call from an off-duty MPD officer, informing them that Munoz and Mr. Villegas had been seen drinking beer outside of a building at 4955/4957 South 14th Street. That building was a two-story duplex owned by Mr. Villegas’ sister, Maria Ventura. One unit of the duplex was situated on the first floor; another unit occupied the second floor. Mr. Villegas and his sister lived in the first floor unit.
The second floor unit was occupied by May and John Franklin. The Franklins had lived in that unit for twenty-three years and were unrelated to Ventura and Mr. Villegas. May Franklin ran a small business from her home, selling dolls, crafts, men‘s clothing and other assorted items. She advertised the business by a sign in front of the duplex, which listed a phone number and invited prospective customers to call for an appointment.
The duplex had two entrances. These entrances were adjacent to one another on the southeast corner of the building: one on the eastern corner of the building‘s southern exposure and one on the southern corner of the building‘s eastern exposure. Each entrance had a solid wood inner door and an outer screen door. The entrances led into a small common hallway that provided access to the first floor unit where Mr. Villegas and his sister lived, a staircase leading to the Franklins’ second floor unit and a staircase leading down to a basement. Each unit was closed to the common hallway.
When Officers Obergon and Lutz learned that Munoz and Mr. Villegas had been seen outside the duplex, they, along with other MPD officers, proceeded to the area and assembled at a location near the duplex. At some point, Officer Obergon told Officer Lutz that Mr. Villegas was a previously deported aggravated felon and that ICE had issued an apprehension request. Officer Obergon then left the assembly point in an unmarked police car to confirm that Munoz and Mr. Villegas were indeed outside 4955/4957 South 14th Street. When Officer Obergon passed the address, he saw Munoz and Mr. Villegas outside the home drinking beer. He recognized both men on sight from his prior investigations. Officer Obergon notified the other MPD officers that Munoz and Mr. Villegas were outside the duplex and, in order to avoid detection, proceeded down the street to park his vehicle.
When Officer Lutz and the other MPD officers reached the duplex, neither Munoz nor Mr. Villegas was outside. The officers surrounded the building, and Officer Lutz took up a position near one of the entrances. When Officer Lutz arrived at the entrance, the inner doors of both entrances were open and the screen doors, while closed, were unlocked. Officer Lutz heard another officer shout that somebody had tried to exit the building through a window, but had reentered the building. Officer Lutz then entered the common hallway.
As Officer Lutz entered the common hallway, Mr. Villegas exited the first floor unit into the common hallway. Officer Lutz recognized Mr. Villegas on sight based on a picture the officer had seen of Mr. Villegas earlier that day. Officer Lutz identified himself as a police officer, addressed Mr. Villegas by name and told Mr. Villegas that he was under arrest. While outside the first floor unit and upon hearing Officer Lutz, Mr. Villegas dropped a small clear bag whose contents, upon visu
After the arrest, Mr. Villegas was taken to the Milwaukee County jail. His booking in the Milwaukee County jail caused a notice to be sent to ICE Special Agent Ronald Rickey. About a month earlier, Agent Rickey had received information that Mr. Villegas had reentered the United States and might be in the Wisconsin area. Upon receiving this information, Agent Rickey had ordered Mr. Villegas’ alien registration file, or “A file,” which included a fingerprint card and a picture of Mr. Villegas. Agent Rickey then matched the fingerprints in the A file to fingerprints taken by the MPD after a prior arrest of Mr. Villegas.
As a result of the notice received following Mr. Villegas’ August 20, 2004 arrest, Agent Rickey went to the Milwaukee County jail on August 23, 2004 to interview Mr. Villegas. Upon his arrival, Agent Rickey recognized Mr. Villegas from the photograph in his A file. Although Mr. Villegas had been booked under the name Douglas Enrique Villegas, one of Mr. Villegas’ known aliases, he responded to Agent Rickey when the agent addressed him as Ricardo. Agent Rickey then read Mr. Villegas his Miranda rights, which Mr. Villegas acknowledged. Mr. Villegas declined the presence of counsel. Agent Rickey then proceeded to interview Mr. Villegas about his background. The answers that he provided were consistent with the information in his A file. The interview lasted about fifteen minutes and ended when Mr. Villegas stated that he did not wish to answer any further questions.
B.
Mr. Villegas was charged in a two-count indictment. The first count charged him with illegal reentry into the United States in violation of
Mr. Villegas moved to suppress, as the fruits of an unlawful seizure, both the statements about his identity that he had made to Agent Rickey after his arrest and the marijuana that had been found at the time of his arrest. He contended that his Fourth Amendment right, made applicable to the states by the Fourteenth Amendment, to be free from unreasonable searches and seizures had been violated when Officer Lutz entered the common hallway of the duplex without a search warrant. The district court referred the motion to a magistrate judge who recommended that the motion be denied because Officer Lutz‘s entry into the duplex fell within the exigent circumstances exception to the Fourth Amendment‘s warrant requirement.
Mr. Villegas filed an objection to the magistrate judge‘s recommendation. The district court then held a joint hearing at which it conducted both a de novo hearing on Mr. Villegas’ suppression motion and a bench trial. At the conclusion of this proceeding, the district court denied Mr. Villegas’ motion to suppress. The court concluded that, because Mr. Villegas had no legitimate expectation of privacy in the common hallway, Officer Lutz‘s entrance into the common hallway without a warrant had not violated Mr. Villegas’ Fourth Amendment rights. The district court further noted that it did not believe that, under INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), the Fourth Amendment‘s exclusionary rule would require release of Mr. Villegas after his identity had been established by fingerprints or other records. The district court then found Mr. Villegas guilty on both counts of the indictment.2
Mr. Villegas now appeals the decision of the district court denying his motion to suppress his statements to Agent Rickey as the fruit of an unlawful seizure.
II
DISCUSSION
In reviewing the district court‘s decision with respect to a motion to suppress, we review the district court‘s findings of fact for clear error and its legal determinations de novo. United States v. Yang, 478 F.3d 832, 835 (7th Cir.2007).
Mr. Villegas contends that Officer Lutz‘s entry into the common area of the duplex without a warrant violated the Fourth Amendment‘s prohibition against warrantless searches and seizures. He submits that, but for the unlawful entry and subsequent arrest, the Government would have had no evidence of his identity and that, without that evidence, it would not have been possible to convict him for unlawful reentry into the United States. The Government offers in reply three separate grounds that, in its view, support the decision of the district court. First, the Government contends that Mr. Villegas had no legitimate expectation of privacy in the common area of the duplex; therefore, Officer Lutz‘s warrantless entry into that area did not violate the Fourth Amendment. Next, the Government submits that, even if Officer Lutz‘s entry into the common area of the duplex violated Mr. Villegas’ Fourth Amendment rights, the arrest and subsequent detention of Mr.
We shall address the first two of the Government‘s contentions. However, because we conclude that, under the circumstances, Officer Lutz‘s warrantless entry into the duplex‘s common areas did not violate Mr. Villegas’ Fourth Amendment rights, and that, in any event, Mr. Villegas’ continued detention was lawful because it was supported by probable cause, we need not address the Government‘s contention that identity evidence does not fall within the strictures of the Fourth Amendment‘s exclusionary rule.
A. Officer Lutz‘s Warrantless Entry into the Duplex
The Fourth Amendment protects against warrantless intrusions by the government into areas in which that individual holds a reasonable expectation of privacy. Yang, 478 F.3d at 835. The district court determined that, because Mr. Villegas had no legitimate expectation of privacy in the duplex‘s common hallway, Officer Lutz‘s warrantless entry into that area did not violate the Fourth Amendment.
A defendant seeking to suppress the fruits of a search bears the burden of demonstrating both that he held an actual subjective expectation of privacy and that the expectation “is one that society is prepared to recognize as reasonable.” Id. In determining whether a defendant held a subjective expectation of privacy, we look at the defendant‘s efforts to conceal and keep private that which was the subject of the search. Id. To say that society is prepared to recognize an expectation of privacy as reasonable “recognizes the everyday expectations of privacy that we all share.” Minnesota v. Olson, 495 U.S. 91, 98 (1990). Thus, our inquiry into whether a defendant‘s expectation of privacy was reasonable is necessarily fact dependent, see United States v. Smith, 978 F.2d 171, 180 (5th Cir.1992), and “whether a legitimate expectation of privacy exists in a particular place or thing” must be determined on a case-by-case basis, United States v. Waller, 426 F.3d 838, 844 (6th Cir.2005).
Mr. Villegas has not demonstrated a subjective expectation of privacy with respect to the common hallway. Nor has he shown that any subjectively held expectation of privacy that he might hold with respect to that hallway is one that society is prepared to recognize as reasonable. Although Ventura testified that the solid outer doors leading to the common hallway normally were kept closed and locked, on the day in question, those doors were open. Indeed, Officer Lutz testified that he could see into the common hallway through a screen door, which itself was unlocked. Exposing the activities within the common hallway to the world is inconsistent with a subjective expectation of privacy, particularly when the other occupants of the duplex, the Franklins, ran a business from the property that was advertised by a sign in front of the building.
Even if Mr. Villegas held a subjective expectation of privacy with respect to the common hallway, the facts of this case and our precedents reveal that such an expectation would not be “one that society is prepared to recognize as reasonable.” Yang, 478 F.3d at 835. First, the common
Mr. Villegas points to a number of cases from other courts of appeals holding that the defendant had a legitimate expectation of privacy in a common area of a duplex or other small multi-family dwelling.3 We be
B. Probable Cause for Arrest
The Government further contends that, even if we assume, arguendo, that Mr. Villegas was seized in an area in which he had a legitimate expectation of privacy, evidence of Mr. Villegas’ identity obtained in the course of his detention following his arrest and as a result of his statements to Agent Rickey does not fall within the Fourth Amendment‘s exclusionary rule because there was probable cause for his arrest.
The exclusionary rule vindicates an individual‘s entitlement to shield his person, house, papers and effects, from the Government‘s scrutiny until a valid warrant has issued. Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 2165 (2006). However, because the exclusionary rule visits penalties upon the Government, and hence the public at large, on account of an officer‘s violation of the law, application of the exclusionary rule “must bear some relation to the purposes which the law is to serve.” New York v. Harris, 495 U.S. 14, 17 (1990) (quoting United States v. Ceccolini, 435 U.S. 268, 279 (1978)). The rule of Payton v. New York, 445 U.S. 573 (1980), which prohibits the warrantless, nonconsensual entry into an individual‘s home to make an arrest, is “designed to protect the physical integrity of the home.” Harris, 495 U.S. at 17. Because it is the absence of probable cause, not the absence of a warrant, that renders unlawful the custody of an individual by the Government, continued detention of a suspect following an arrest inside his home, but supported by probable cause, is not rendered unlawful by the absence of a warrant. Id. at 18-19. Therefore, the Supreme Court held in New York v. Harris that the exclusionary rule does not apply to statements made by a defendant while in custody outside of the home when the police have probable cause to arrest
Probable cause exists when, at the time of arrest, the arresting officer possesses “knowledge from reasonably trustworthy information that is sufficient to warrant a prudent person in believing that a suspect has committed, or is committing a crime.” United States v. Breit, 429 F.3d 725, 728 (7th Cir.2005). Whether a police officer acted on probable cause is determined “based on the common-sense interpretations of reasonable police officers as to the totality of the circumstances at the time of arrest.” Id.
At the time of the arrest, Officer Lutz had probable cause to arrest Mr. Villegas for violation of
Thus, at the time Officer Lutz saw Mr. Villegas, Officer Lutz had trustworthy information from a reliable source, Officer Obergon, that Mr. Villegas had been deported previously and had not obtained the permission of the Attorney General to reenter the United States. When Officer Lutz saw Mr. Villegas in the hallway, Mr. Villegas was “found in[] the United States.” Therefore, based on the reliable information received from Officer Obergon and Officer Lutz‘s own observations, Officer Lutz had probable cause to believe that Mr. Villegas had violated
Thus, there was probable cause to support Mr. Villegas’ arrest, which rendered his continued detention lawful.4 Harris, 495 U.S. at 21.
Therefore, any statements made by Mr. Villegas to Agent Rickey at the county jail are not subject to the Fourth Amendment‘s exclusionary rule. See id.; see also United States v. Rocha-Martinez, 467 F.3d 591, 594 (7th Cir.2006) (holding that evidence of an alien‘s identity obtained while the alien was in custody following an arrest pursuant to an unlawful entry did not fall within the exclusionary rule).
Conclusion
Mr. Villegas had no legitimate expectation of privacy in the common hallway of the duplex. Thus, Officer Lutz did not violate Mr. Villegas’ Fourth Amendment rights by entering the common hallway and arresting Mr. Villegas without a warrant. Further, Mr. Villegas’ arrest and continued detention were supported by probable cause. Consequently, the statements by Mr. Villegas to Agent Rickey while in custody are not subject to the Fourth Amendment‘s exclusionary rule, regardless of whether Officer Lutz violated Mr. Villegas’ Fourth Amendment rights by entering the common hallway and arresting Mr. Villegas without a warrant. The judgment of the district court is affirmed.
AFFIRMED
ROVNER, Circuit Judge, concurring in part and concurring in the judgment.
I join all but section II(A) of the court‘s opinion, in which the court sustains Officer Lutz‘s warrantless entry into the duplex on the ground that Mr. Villegas had no legitimate expectation of privacy in the duplex‘s common hallway. Ante at 767-69. Although the court‘s analysis on that point is consistent with prior holdings of this
First, it is unnecessary for us to decide whether Mr. Villegas had a cognizable expectation of privacy in the duplex hallway. As we proceed to hold in section II(B) of today‘s decision, even if Officer Lutz violated Mr. Villegas’ Fourth Amendment rights by entering the hallway without a warrant, that violation would not compel the suppression of the statements that Mr. Villegas subsequently made as to his identity. The probable cause that Officer Lutz had to arrest Mr. Villegas supported his post-arrest detention even if it did not support the officer‘s warrantless entry into the duplex to make the arrest. Consequently, the statements that Mr. Villegas made while in custody were not subject to the exclusionary rule. Ante at 770-71.
Second, I find the line of cases categorically rejecting any Fourth Amendment protection for the hallways and other common areas of multi-unit residential buildings, see ante at 768, to be conceptually problematic. Essentially, these cases reason that because the resident of a multi-unit building does not have exclusive access to and control over a common hallway, but rather shares that hallway with other building residents and their guests, he can have no reasonable expectation of privacy in the hallway. United States v. Concepcion, 942 F.2d 1170, 1172 (7th Cir.1991); see also United States v. Miravalles, 280 F.3d 1328, 1331-33 (11th Cir.2002) (collecting and summarizing cases). But the relevant question, it seems to me, is not whether the hallway is accessible to
A more plausible (and narrow) ground for saying that the warrantless entry in this case did not intrude upon a cognizable privacy interest might be that the hallway happened to be unlocked when Officer Lutz stepped inside. Although I would hesitate to say that Mr. Villegas and the other residents of the duplex necessarily forfeited any subjective expectation of privacy in the common hallway when they (whether inadvertently or intentionally) left the outer doors open and the inner screen doors unlocked, a police officer confronting an unlocked screen door might think that the common hallway was open to the public and, therefore, open to him as well. See Dillard, 438 F.3d at 682 (“By not locking the duplex‘s doors, Dillard did nothing to indicate to the officers that they were not welcome in the common areas.“); United States v. Mendoza, 281 F.3d 712, 715 (8th Cir.2002) (“In the instant case, Mendoza did nothing that would lead the officers to believe he had a protectable interest in the common area of his duplex. He made no efforts to secure the outer door.“); see also Miravalles, 280 F.3d at 1333.
In any event, because we do not need to reach the issue, I believe it would have been more prudent to leave it for another case in which we do.
Notes
(a) In general
Subject to subsection (b) of this section, any alien who—
(1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter
(2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien‘s reapplying for admission; or (B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act,
shall be fined under title 18, or imprisoned not more than 2 years, or both.
(b) Criminal penalties for reentry of certain removed aliens
Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection—
. . . .
(2) whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such Title, imprisoned not more than 20 years, or both[]
In King, the Sixth Circuit concluded that the defendant had a legitimate expectation of privacy in the shared basement of a duplex. 227 F.3d at 749-50. Although the court in King relied on Sixth Circuit precedent holding that tenants in an apartment building had a legitimate expectation of privacy in common areas not open to the public, id., the court first noted that the ultimate determination of whether a defendant has a legitimate expectation of privacy in a particular place must be determined on a case-by-case basis, id. at 744. The court then looked to the facts in that particular case in addition to circuit precedent to determine whether the defendant there had a reasonable expectation of privacy. Id. at 749-50.
The facts of King highlight the fact-specific inquiry into a reasonable expectation of privacy. Both units of the duplex involved in King were occupied by members of a single family: The defendants, who were brothers, lived in one unit while their mother and siblings lived in another. Id. at 750. Thus, the housing unit in King more closely resembled a single family house than a duplex. Further, the area in question in King was the basement of the building accessible only to the tenants, not a common hallway through which any visitor would pass to reach either of the dwelling units.
In Fluker, the Ninth Circuit determined that the defendant held a legitimate expectation of privacy in a common hallway of a duplex that normally was locked to outsiders. 543 F.2d at 712. The court emphasized that its inquiry into the defendant‘s legitimate expectation of privacy focused on “the particular circumstances of th[e] case.” Id. at 716. After concluding that, under these circumstances, the defendant held a legitimate expectation of privacy in the common hallway, the court added that its holding was confined to the facts of that case. Id. at 717. Unlike the present case, the facts of Fluker reveal that the residents of both units in the duplex were co-conspirators in a heroin distribution operation. Id. at 712. In that sense, the occupants had a common interest in maintaining the privacy of the common hallway. Therefore, it would not be unreasonable for each occupant to conclude that the others would maintain the privacy of all occupants of the duplex to advance their common purpose.
In Fixel, the Fifth Circuit concluded that the defendant had a legitimate expectation of privacy in a fenced, common backyard shared by the units of a four-unit, multi-family dwelling. 492 F.2d at 484. The yard was accessible only by passing through a dwelling unit. Id. In reaching this conclusion, however, the court expressly distinguished the yard from common hallways used by other tenants or outsiders to access individual units. Id. The court noted that, unlike a common hallway or entrance, the back yard was not accessible to anyone who wished to approach the building‘s tenants. The court further noted that the yard itself was surrounded by a fence, rendering the yard comparatively more removed and private than a common hallway. Id. Taking these factors as a whole, the court concluded that the defendant‘s privacy had not been so diluted by the fact that he shared the yard with other tenants of the building as to render his expectation of privacy unreasonable. Id.
The yard in Fixel is readily distinguishable from the common hallway in the present case. As noted earlier, any visitor to either unit, including delivery persons, solicitors and customers of May Franklin‘s business, would pass through the common hallway to reach either unit. Given the comparative openness of the common hallway, the hallway lacked the same degree of remove and privacy from the building‘s visitors as the yard in Fixel.