United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
ROBERT M. DOW, Jr., District Judge.
Before the Court are Defendants Jason Correa and Saul Melero's joint motion to reconsider  the Court's October 17, 2013 Opinion and Order  denying Defendants' joint motion to suppress evidence [74, 75]. For the reasons below, Defendants' motion  is denied.
The relevant facts for the purpose of Defendants' motion to reconsider are as follows: On October 19, 2013, DEA agents conducted surveillance of a meeting between a confidential source ("CS") and two unknown males ("UM1" and "UM2") in a restaurant at 53rd and Pulaski in Chicago, Illinois. The men swapped cars when they left the restaurant, and DEA agents followed UM1 and UM2 until they drove into a parking garage at the intersection of 18th and South Prairie. After 25 minutes, UM1 and UM2 exited the parking garage attached to 1717 South Prairie, returned to 53rd and Pulaski where the CS was waiting, and the parties switched back to their original vehicles. DEA agents then met with the CS and discovered $500, 000 cash in the vehicle that had not been there prior to the car swap, while other DEA agents followed UM1 and UM2 in their red GMC Canyon truck to a residence in Lyons, Illinois.
On October 27, 2013, while surveilling the Lyons residence, DEA agents observed UM2 leave the residence in the same red GMC truck. Agents followed UM2 to a grocery store at the intersection of Canal Street and Roosevelt Road. There, UM2 parked next to a silver Jeep Cherokee and met another unknown male, later identified as Defendant Correa, at the Starbucks inside the store. When the two men left the store, UM2 pulled a multi-colored bag from the red Canyon truck and handed it to Correa, who placed it in his Jeep. Correa then drove away in the Jeep, heading south on Canal Street. DEA agents followed Correa until Correa turned left onto 18th Street without using his turn signal, at which point the agents pulled over Correa at 18th and Wabash. After Correa consented to a search of the Jeep, agents recovered a bag of cocaine inside the vehicle. Agents then took Correa into custody and transported him to the DEA office, where he was given his Miranda warnings.
During the search of Correa's vehicle, Special Agent Thomas Asselborn ("SA Asselborn") discovered a bag on the front passenger seat, containing four garage door openers, three sets of keys, and four cell phones. SA Asselborn then took the bag and drove the few blocks from the scene of the traffic stop to the garage at 1717 South Prairie, where agents had observed UM1 and UM2 with $500, 000 in the CS's car emerge eight days prior. When he arrived, SA Asselborn pressed the button on each of the four garage door openers to see if any worked at the address. When none of them opened the garage, SA Asselborn spent 10-15 minutes testing the openers on the garages of nearby buildings until one of them activated the garage door at 1819 South Michigan Avenue, a ten-story apartment and condominium building. SA Asselborn then called two other Specials Agents, Barnum and Loonan, and arranged to meet them the building's front entrance.
The Special Agents gained access to the lobby using a key fob from the bag. Inside the lobby, SA Asselborn tested another key on the residents' mailboxes, until he found its match in the mailbox for unit 702. Believing this to be Correa's home, SA Asselborn contacted DEA Group Supervisor James Laverty, who was with Correa at the time in an interview room at the DEA office. Laverty asked Correa if the agents could search unit 702, and Correa consented. SA Asselborn then opened the door to the unit using another key from the bag, at which point the agents discovered a plethora of contraband, including marijuana, methamphetamine, Ecstacy, a.32 caliber semiautomatic handgun, an assortment of drug packaging materials, and various documentation belonging to Saul Melero. Agents showed a photo of Correa to neighbors, who not only identified Correa as a resident of the unit, but also informed the agents that the unit's other resident - who turned out to be Melero - was standing outside the building. Laverty then arrested Melero on the street.
In their joint motion to suppress [74, 75], Correa and Melero challenged (1) the agents' authority to pull over Correa and search his car, (2) SA Asselborn's use of the garage door openers and keys to identify unit 702 as Correa's home, (3) the Agent's authority to search the unit itself, and (4) the agent's authority to lawfully arrest Melero outside of the building. For the reasons discussed in the Court's October 17, 2013 Opinion and Order , the Court denied Defendants' motion in its entirety. Defendants' now ask the Court to reconsider its ruling concerning SA Asselborn's use of the garage door opener to locate 1819 South Michigan as Correa's residence, which they contend was a search that required a warrant.
In denying Defendants' motion to suppress, the Court relied on U.S. v. Concepcion, 942 F.2d 1170 (7th Cir. 1991), a case with an analogous set of facts to those at issue here. See , at 11-13. In Concepcion, DEA agents arrested the defendant and seized his keys. 942 F.2d. at 1171. After the defendant was taken into custody, agents saw the name "Concepcion" on the mailbox of a nearby apartment building. Id. They tested Concepcion's keys, one of which worked on the door to the lobby. Id. Inside the building, the agents tested his other keys until they found a match to apartment 1C. Id. They opened the door an inch, but immediately closed it and locked it without looking inside. Id. Having identified Concepcion's residence, the agents sought and obtained his consent to search the unit. Id. Concepcion later challenged the lawfulness of the actions taken by the agents that allowed them to establish the connection between Concepcion and the unit. Id.
In affirming the district court's determination that the agents' actions did not offend the Fourth Amendment, the Seventh Circuit agreed that "a tenant has no reasonable expectation of privacy in the common areas of an apartment building" because "the area outside of one's door lacks anything like the privacy of the area inside" and "Concepcion had no expectation that the goings-on in the common areas would remain his secret." Id. at 1172. Therefore, the agents' use of the keys to enter the locked building was lawful; because the act did not implicate the defendant's protected privacy interests, it was not a "search" within the meaning of the Fourth Amendment. Id. A harder question for the Seventh Circuit concerned the lawfulness of the agents' use of Concepcion's key to his apartment door, because a "keyhole contains information - information about who has access to the space beyond." Id. (emphasis in original). Because the information is not accessible to strangers, the Court concluded that the agents' use of the key to Concepcion's unit to confirm its match did constitute a "search" for purposes of the Fourth Amendment. Id. However, the Seventh Circuit determined that, because the privacy interest at issue was so small, the agents did not need a warrant (or even probable cause) to conduct this search. Id. at 1173.
In light of Concepcion, the Court concluded that SA Asselborn's actions did not offend Correa or Melero's Fourth Amendment rights. See , at 12-13. Asselborn's use of the key fob to enter the lobby was not a "search, " because Defendants did not have a reasonable expectation of privacy in the common areas of the 10-floor, 60-80 unit condo building at 1819 South Michigan in which they rented a unit. And Asselborn's use of Correa's key in the lobby's mailboxes to determine its match to the mailbox for unit 702 - at most - was a "search" in the same way that the agents' use of Concepcion's keys to unit 1C was a search, and thus did not require a warrant. Finally, Asselborn's initial use of the garage door opener at 1819 South Michigan to identify it as Correa's building did not offend the Constitution, because - as Concepcion made explicitly clear - Correa did not have a reasonable expectation of privacy in the building's lobby and common areas, including the common garage. And even if Correa did have some reasonable expectation of privacy in the garage (for example, since it may be more difficult to access than the lobby and may not be accessible to every resident of the building), Asselborn's act of pressing the garage door button to open and close the door to confirm the match was no more invasive than the Concepcion agents' identical act on Concepcion's apartment door. In other words, Asselborn's use of the garage door either constituted a "search" that was so minimally invasive as to not require a warrant or it was not a search at all.
Defendants hardly address Concepcion in their motion to reconsider, but their arguments, at least implicitly, seek to exploit the primary factual difference between that case and this one. Whereas in Concepcion the agents located the defendant's apartment building by visually inspecting the premises (which led to the discovery of the defendant's name on the building's exterior), Asselborn used a garage door opener to do so. Defendants argue that two recent Supreme Court cases - United States v. Jones, 132 S.Ct. 945 (2012), and Florida v. Jardines, 133 S.Ct. 1409 (2013) - compel the "natural conclusion" that Asselborn needed a warrant before he could lawfully use the assistance of this technology to hunt for Correa's building. The Court disagrees.
In Jones, FBI agents installed a GPS device on the undercarriage of a criminal suspect's automobile and then tracked it over the course of the next 28 days, gathering more than 2, 000 pages of data concerning narcotics trafficking, including the location of a stash house. 132 S.Ct. at 948. First noting that the Fourth Amendment includes protection from unreasonable searches of our "effects, " the Supreme Court held that "the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, ...