United States District Court, N.D. Illinois, Eastern Division
OPINION AND ORDER
L.ELLIS, United States District Judge
in a Federal Bureau of Investigation (“FBI”)
interview room, Defendant Jorge Llufrio, recently arrested in
a drug conspiracy investigation, began to talk to himself.
Looking up, he thought he saw a camera hidden in the ceiling,
but he continued to whisper to himself in Spanish. Llufrio
was looking in the wrong place, but his instincts were
right-after the FBI had placed Llufrio in the interview room,
it started secretly recording the sights and sounds in the
room. The Government previously turned over the audio and
video recordings in its conspiracy case against Llufrio, and,
after producing a certified translation of Llufrio's
statements, the Government now moves to admit the recorded
statements. Because Llufrio, in opposing the motion,
demonstrates that he had a legitimate expectation of privacy
in the statements, the Court denies the Government's
motion and bars the recorded statements from admission at
Government charges in an indictment that Llufrio conspired
with codefendant Sergio Fuente and cooperating witness Ismael
Bustamante to possess and distribute narcotics, alleging that
Bustamante procured approximately 10 kilograms of cocaine and
heroin, planned with Fuentes to transport the drugs, and
recruited Llufrio to be their driver and that Llufrio and
other defendants then did possess the drugs. Bustamante and
Fuentes allegedly hid the drugs in the cab of a semi-truck
tractor, and while Llufrio was driving the truck to Chicago,
the authorities stopped and arrested him.
Llufrio's arrest, the FBI took him to their Chicago
office, and Llufrio found himself sitting alone in a FBI
interview room, which secretly could record video and audio.
There was not a sign that “warn[ed] that there were
cameras” and FBI agents never told Llufrio whether they
were recording him. Doc. 100 at 2 n.3. After FBI agents
placed Llufrio alone in the room, they began recording at
5:24 p.m., and Llufrio began talking to himself around 5:25
p.m. See Doc. 100-1 (cover page noting date, time,
and duration of transcribed recordings).
was already sitting in the interview room when the FBI began
recording. Shortly after, Llufrio began mumbling to
himself and encouraging himself that things were going to
work out. Through unintelligible speech and mumbling, Llufrio
provided himself with self-encouragement. After
approximately ten minutes, Llufrio looked up, saw something,
pointed, and exclaimed, “That's a f***ing camera
for recording.” Doc. 100-1 at 1. Llufrio continued
mumbling, whispering, and looked up at what he thought was
the camera at least once more.
approximately 6:00 p.m., two FBI agents entered the room,
introducing themselves and engaging Llufrio in conversation
about whether he wanted an attorney. After both agents
departed the room following Llufrio's request for an
attorney, he resumed faintly speaking to himself. The FBI
agents then reentered the room and spoke to Llufrio about
inventoried items they believed belonged to him until, at
approximately 6:13 p.m., they “released [him] from the
room.” Doc. 100-1 at 7.
Government provided the “relevant audio and video
recordings earlier in the case and recently produced a
certified Spanish translation of [Llufrio's]
statements.” Doc. 100 at 2. Llufrio has hired an
independent Spanish translator to translate the Spanish
statements as recorded in the audio, but he cannot verify the
Government's translated transcription because “the
audio of the videotape is extremely hard to hear” and
the translator needs “more sophisticated headphones to
listen to the audio.” Doc. 112 at 3. The Government has
produced no warrant approving the recording.
Fourth Amendment guards against unreasonable searches:
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, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
U.S. Const. amend. IV. Electronic recordings can constitute
searches under the Fourth Amendment. See Katz v. United
States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed. 2D 576
(1967) (analyzing whether recording in telephone booth was an
unreasonable search under the Fourth Amendment); United
States v. Webster, 775 F.3d 897, 903 (7th Cir. 2015)
(analyzing whether recording in squad car was an unreasonable
search under the Fourth Amendment). The defendant must
“establish that he had a reasonable expectation of
privacy.” Webster, 775 F.3d 903. “A
reasonable expectation of privacy exists when the defendant
manifested a subjective expectation of privacy and society
recognizes that expectation to be reasonable.”
Id. The “inquiry into whether a
defendant's expectation of privacy was reasonable is
necessarily fact dependent . . . [and] must be determined on
a case-by-case basis.” United States v.
Villegas, 495 F.3d 761, 767 (7th Cir. 2007) (internal
citations omitted). “[S]earches conducted outside the
judicial process, without prior approval by judge or
magistrate, are per se unreasonable under the Fourth
Amendment-subject only to a few specifically established and
well-delineated exceptions.” Horton v.
California, 496 U.S. 128, 133 n.4, 110 S.Ct. 2301, 110
L.Ed.2d 112 (1990) (quoting Katz, 389 U.S. at 357).
Government moves to admit the recorded statements that
Llufrio, while alone in the interview room, spoke to himself.
Llufrio does not challenge the relevance of the recorded
statements, but he argues that the Government cannot admit
the recorded statements because the Government obtained them
in violation of the Fourth Amendment. The Government argues that
Llufrio had neither a subjective nor objectively reasonable
expectation of privacy, and Llufrio argues that both existed.
Court initially notes that the Government has moved to admit
the statements from the videorecording before Llufrio argued
that the Court should exclude the statements. In fact,
Llufrio never moved to suppress these statements. Normally, a
defendant files a motion to suppress evidence; quite simply,
they must do so or waive the objection to the
Government's evidence. See Fed. R. Crim. P.
12(b)(3)(C) (“[T]he following defenses, objections, and
requests must be raised by pretrial motion if the basis for
the motion is then reasonably available and the motion can be
determined without trial on the merits: . . . suppression of
evidence[.]”); Id. 12(c)(3) (“If a party
does not meet the deadline for making a Rule 12(b)(3) motion,
the motion is untimely. But a court may consider the defense,
objection, or request if the party shows good cause.”).
“[A] ‘motion to suppress' is any objection
outside the Rules of Evidence” because
“‘[n]othing in the Rules of Evidence allows a
court to reject relevant, ...