MEMORANDUM OPINION AND ORDER
Antonio Williams and John T. Hummons (collectively, “Defendants”) are charged with conspiracy to commit robbery in violation of 18 U.S.C. § 1951(a), conspiracy to possess with intent to distribute narcotics in violation of 21 U.S.C. § 846, possession of a firearm in furtherance of a crime of violence or a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A), and possession of a firearm after having previously been convicted of a felony in viola
RELEVANT FACTS
The facts of this case will seem redundant to anyone familiar with the phony stash house scheme the ATF has used over the past few years.
On November 14, 2012, Williams, Hum-mons, and Lee drove to a forest preserve in Lyons, Illinois to prepare for the robbery. Soon after their arrival, they were arrested and placed in the back of a Chicago Police Department squadrol or paddy-wagon. They were not given any Miranda warnings at this time. As each suspect was placed into the squadrol, he was asked his name and how to spell it, his address, and his birthdate. Officer Conway testified that these questions are asked in the squadrol so the suspects’ voices may be identified on the audio re
Surreptitiously recording suspects in squadrols is a somewhat regular practice by the Chicago ATF. The recording equipment is provided by the ATF on an investigation-by-investigation basis. Although the recording equipment had the functionality to allow for simultaneous listening, that function was not activated. Thus, when the squadrol arrived at the station, the recordings had to be downloaded from the recording devices onto disks. Officer Conway testified that downloading each of the two video recordings would take approximately 35 to 45 minutes and that downloading the audio recording would take approximately 20 to 25 minutes. Officer Conway made copies of the recordings for the case agents; he testified that he had no interaction with the agents who were interviewing the arrestees.
The squadrol had three compartments: two separate rear compartments for prisoners and a separate cab compartment for the driver and passenger. Williams, Hum-mons, and Lee were placed in the middle compartment — the front prisoner compartment — directly behind the cab compartment. The bench on which the suspects were sitting was on the front wall of the middle compartment, so that the arrestees were facing backwards with their backs against the front wall. There were two windows covered by metal grating on the front wall of the middle compartment. One was slightly above eye level and behind the heads of passengers seated on the bench in the middle compartment and looked out over the cab compartment. The other was at hip level for seated passengers and looked into the cab right behind the headrests of the seats in that compartment. The windows were made of thick plexiglass, and the window that looked into the cab was not shared by the cab. The suspects were oriented back-to-back with the officers in the cab compartment, but there was space between the thick window of the back compartment and the window of the cab. Officer Conway testified that individuals in the cab compartment can see through the window into the back compartment, but they cannot hear through it, and vice versa.
Once the squadrol arrived at the ATF office, the suspects were taken into interview rooms. Special Agent Labno interviewed Hummons with two other agents. Agent Labno advised Lee of his Miranda rights at the start of the interview. Agent Labno read and explained the waiver of rights form to Hummons, who then signed it. Agent Labno did not believe that Hummons’s responses were honest, and he left the room to speak with other agents to find out if there was any additional information about Hummons he could use in the interview. He was advised that Hum-mons’s participation in the pre-robbery meetings had been taped. Agent Labno knew the squadrol was wired from his briefing earlier in the day, and he asked other agents about the squadrol recordings but was given no information. When Agent Labno returned to the interview room, he told Hummons that the squadrol
DISCUSSION
Defendants argue that the surreptitious recording of their conversation in the squadrol violated the Fourth and Fifth Amendments of the Constitution, and the statements made therein should therefore be suppressed. (R. 56, Defs.’ Mot. at 1.) Defendants also contend that Hummons’s post-arrest interview statement was tainted by the unlawful recordings and should be suppressed as well. (Id.)
I. Whether the recording constitutes an unreasonable search in violation of the Fourth Amendment
Defendants argue that their Fourth Amendment rights to be free from unreasonable search were violated when agents surreptitiously recorded their conversation in the squadrol. (R. 56, Defs.’ Mot. at 6.) Defendants contend that the Fourth Amendment and Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (“Title III”), 18 U.S.C. § 2511, forbid the recording of their conversation without a warrant or their consent. (Id. at 6-7.) Defendants contend that suspects “do not automatically relinquish their constitutional rights upon arrest,” and law enforcement agents cannot “unilaterally curtail their Fourth Amendment rights.” (R. 72, Defs.’ Post-Hearing Mem. at 9.)
The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause[J” U.S. Const, amend. IV. A search within the meaning of the Fourth Amendment occurs only when “a reasonable expectation of privacy” exists, and a defendant who objects to a search bears the burden of demonstrating that a reasonable expectation of privacy was violated by the search. See United States v. French,
Defendants contend that they had a reasonable expectation of privacy in their conversation in the squadrol regarding their recent arrest, and thus the recording of their conversation should be suppressed. (R. 56, Defs.’ Mot. at 6.) The government argues that Defendants’ expectation of privacy in the squadrol was unreasonable.
A. Subjective expectation of privacy
The first prong of the Katz standard is whether the individual who claims his Fourth Amendment rights have been violated has demonstrated an actual subjective expectation of privacy. “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.” United States v. Villegas,
The government argues that Defendants fail to demonstrate that they took “affirmative steps to conceal and keep private” their conversation in the squadrol. (R. 60, Gov’t’s Resp. at 8) (quoting Yang,
It is not only Defendants’ actions that inform the Court’s conclusion; the law enforcement officers’ actions also indicate that Defendants had a subjective expectation of privacy. The government stipulated at the suppression hearing that the recording devices were deliberately hidden, and Officer Conway’s testimony made it clear that the devices were virtually invisible. If the law enforcement officers had not suspected that Defendants would have an expectation of privacy when they were unaccompanied in the prisoner compartment of the squadrol, they would not have used such small and carefully concealed recording devices. The Court concludes that the conduct of both Defendants and the government demonstrates that Defendants had a subjective expectation of privacy in their conversation in the squa-drol.
B. Reasonable expectation of privacy
The second prong of the Katz test concerns whether Defendants’ subjective
The government argues that, having been arrested by 30 to 40 armed law enforcement officers and placed in a marked police vehicle, no subjective expectation of privacy Defendants may have had was reasonable. (R. 76, Gov’t’s Post-Hearing Mem. at 12.) Although the Seventh Circuit has not addressed this question, the government cites several cases in which circuit courts have held that there is no reasonable expectation of privacy in a police car. (R. 60, Gov’t’s Resp. at 9-10) (citing United States v. Fridie,
The present case differs from the cases the government cites, in which courts have found no reasonable expectation of privacy in a patrol car, for several reasons. Importantly, none of those cases deal with squadrols, only police ears. As far as the Court can tell, the question of whether a suspect has a reasonable expectation of privacy in the back of a squadrol is one of first impression among federal courts. On this question of first impression, the Court declines to apply the caselaw relating to patrol cars, as the government requests, without scrutinizing the analysis to determine if that same analysis applies equally to the circumstances at issue here. Some of the cases the government cites give no reasoning for their holding that an individual has no reasonable expectation of privacy in a patrol car and simply cite other cases without explanation. See Fridie,
The Court thus seeks guidance from the thorough analysis provided by the Eighth and Tenth Circuits in Clark and Turner, the Court finds, however, that the analysis in those eases does not apply here. In
This Court finds police patrol cars are different from police squadrols. (§ See Gov’t Ex. 1, Vehicle Photos 1-5.) In contrast to the back seat of a patrol car, the prisoner compartments of the squadrol are fully enclosed, completely separate from the cab compartment, and inaccessible to the public. In their compartment, Defendants were not within earshot of officers in the front compartment, nor were there visible recording or transmitting devices. The rear compartments of a squadrol do not “bristle with electronics.” See id. The Tenth Circuit specifically limited its finding that the defendant’s expectation of privacy was unreasonable in a patrol car. See id. at 1200-01 (“society is not prepared to recognize an expectation that communications in a patrol car, under facts presented here, are not subject to interception”) (emphasis added). The factual dissimilarities between a squadrol and a patrol car are legally significant, and “the practical realities” of those differences were apparent to Defendants. See id. at 1201.
In Clark, the Eighth Circuit distinguished the back seat of a patrol car from the phone booth in Katz.
Accepting the government’s analogy does not require the Court to find that Defendants had no reasonable expectation of privacy. The Supreme Court has held that “prisons are not beyond the reach of the Constitution.” Hudson,
Indeed, if the officers had had legitimate safety concerns that necessitated audio and video surveillance — if they were concerned that the suspects would somehow loosen their restraints so they could ambush the officers who opened the door or would inflict physical violence upon each other, or if they were concerned that on the lengthy drive to the ATF office the unaccompanied suspects may suffer some sort of medical distress with no way to signal the officers in the front compartment and receive help — then the recording devices’ ability to transmit footage in real time would have been activated. The government has not offered any reason for the hidden recording of the suspects’ conversation in the police squadrol. It has not claimed that it was investigating a potentially related crime or that it thought the suspects might reveal information that would help the officers secure public safety. Instead, the Court must conclude that the only reason for the recordings was to try to capture the suspects’ confessions. This is not an interest that justifies an intrusion on Defendants’ expectation of privacy. See generally id.; Wong Sun v. United States,
Finally, the Court notes that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment.” Katz,
II. Whether Defendants’ statements in interrogation should be suppressed
“Evidence obtained as a direct result of an unconstitutional search or seizure is plainly subject to exclusion,” Segura v. United States,
The Supreme Court has rejected a “but for” causation test for suppression, holding that even evidence that would not have come to light but for an unlawful search need not automatically be suppressed. See Wong Sun,
Defendants argue that the causal connection between the illegal search and Hummons’s statement was not sufficiently attenuated as to dissipate the taint of the police illegality. (R. 56, Defs.’ Mot. at 11.) Defendants contend that “a very brief period of time elapsed” between the recordings and their interrogations, there were no intervening circumstances, and the officers purposely and flagrantly disregarded their constitutional rights in surreptitiously recording their conversation. (Id. at 12-13). The government contends that the recording had no bearing on Hum-mons’s post-arrest interview. (R. 60, Gov’t’s Resp. at 11.) The government maintains that the agents who interviewed Hummons had not heard the recorded conversations and did not confront him with the substance of the recorded conversation; thus, any potential connection between the recordings and Hummons’s post-arrest interview is “so attenuated as
“Any application of the exclusionary rule necessarily requires consideration of society’s competing interests in deterring illegal police conduct and providing juries with all of the evidence relevant to a defendant’s guilt.” United States v. Liss,
It is conceivable that Agent Labno would have told Hummons that the vehicle was wired even if it was not — that he would have come up with that lie or “bluff’ just as he came up with the statements he told Hummons the other defendants made. If that was the case, Hummons’s statement was not come at by exploitation of the unlawful search. It is also conceivable that Agent Labno told Hummons the squa-drol was wired because the squadrol was, in fact, wired. However, Defendants do not claim that Hummons made his incriminating statement because Agent Labno told him about the unlawful search. Hum-mons may have made the same statement if he had only been confronted with the false or true statements of his codefen-dants. He may have made the same statement if he had been told that he had met with undercover agents to plan the robbery and that those agents had taped his conversation. The link between the unlawful search and Hummons’s statement is therefore too attenuated to require suppression of the statement. See Segura,
Defendants encourage the Court to consider the “disciplinary purpose of the exclusionary rule.” (R. 72, Defs.’ Post-Hearing Mem. at 13.) According to Defendants, the primary purpose of the exclusionary rule is to deter future disregard for unconstitutionality, not to repair damage that has already occurred. (Id.) (quoting United States v. Calandra,
CONCLUSION
For the reasons set forth above, Defendants’ motion to suppress evidence (R. 56) is GRANTED IN PART and DENIED IN PART.
Notes
. Codefendant Howard Lee is also charged with the first three counts.
. These facts are drawn from the testimony Officer Conway and Special Agent Christopher Labno gave at the evidentiary hearing on July 31, 2013, (R. 68); the complaint for the indictment, (R. 1); and undisputed facts provided in Defendants' motion to suppress, (R. 56).
. See, e.g., United States v. Kindle,