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United States v. Llufrio

United States District Court, N.D. Illinois, Eastern Division

February 15, 2017

UNITED STATES OF AMERICA,
v.
JORGE LLUFRIO, also known as “Cuba, ”

          OPINION AND ORDER

          SARA L.ELLIS, United States District Judge

         Alone 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 trial.

         BACKGROUND[1]

         The 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.

         After 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).

         Llufrio was already sitting in the interview room when the FBI began recording.[2] 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.[3] 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.

         At 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.

         The 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.

         ANALYSIS

         The 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.[4] “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).

         The 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.[5] The Government argues that Llufrio had neither a subjective nor objectively reasonable expectation of privacy, and Llufrio argues that both existed.

         The 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, ...


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