December 1, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. l:13-cr-00103
Robert W. Gettleman, Judge.
Posner, Ripple, and Rovner, Circuit Judges.
ROVNER, Circuit Judge.
district court suppressed the covertly-recorded statements
that the defendants made to one another while being
transported in a police van immediately after their arrests,
finding that the characteristics of the van supported a
reasonable expectation of privacy in the defendants'
conversations. The government has appealed that ruling, and
defendant Matthew Webster has cross-appealed the district
court's determination that his subjective expectation of
privacy ended when a co-defendant warned others within the
van that they were likely being recorded. Building upon our
decision in United States v. Webster, 775 F.3d 897
(7th Cir.), cert, denied, 135 S.Ct. 2368 (2015), we
conclude that the defendants lacked an objectively reasonable
expectation of privacy in the van, and we therefore reverse
the district court's decision to suppress their
statements. We dismiss Webster's cross-appeal as moot.
five defendants in this case were arrested on the evening of
January 30, 2013, as they were preparing to execute a planned
robbery of what turned out to be a wholly fictitious
narcotics "stash house." See, e.g., United
States v. Lewis, 641 F.3d 773, 777-78 (7th Cir.
2011). They had been recruited into the scheme by an
undercover agent who posed as a drug courier seeking to rob
the Mexican drug cartel for which he was purportedly working.
The sting was organized by a task force comprised of Chicago
police officers and agents of the federal Bureau of Alcohol,
Tobacco, Firearms & Explosives ("ATF").
the defendants, Randy Walker and Randy Paxton, were arrested
outside of a Chicago restaurant. They were placed into a
police transport van that was clearly marked as a Chicago
Police Department vehicle. The vehicle was a Ford E350 cargo
van that had been modified for police use. The van's
interior was divided into three compartments by two solid
steel walls with small double plexiglass viewing windows. The
driver and a passenger would occupy the front compartment,
while the rear two compartments were reserved for detainees.
After Walker and Paxton were loaded into the van, task force
officers drove the van a short distance to a warehouse, where
the other three defendants-Cornelius Paxton, Adonis Berry,
and Matthew Webster-had convened with the undercover agent
for a final pre-robbery meeting. Those three defendants,
having also been arrested, were placed into the rear-most
compartment of the van along with Walker and Randy Paxton.
the van, the defendants were seated on two benches facing one
another from opposite sides of the van-"shoulder to
shoulder, knee to knee, " as the district court later
put it. United States v. Paxton, No. l:13-cr-00103,
2015 WL 493958, at *2 (N.D.Ill. Feb. 3, 2015)
("Paxton II"). All five of the defendants
had their wrists handcuffed behind their backs. The district
court would later determine that the defendants could expect
to be overheard conversing from outside of the compartment
only if they spoke in an above-normal tone of voice.
the defendants was given Miranda warnings before
being placed into the van. Each defendant was, however, asked
by officers to state his name and certain other identifying
information before entering the van. Once all five defendants
had been loaded, the van was driven to the Chicago field
office of the ATF.
the drive, the defendants conversed quietly. Unbeknownst to
them, two recording devices (one audio, and the other
audiovisual) had been hidden in the rear compartment of the
van so as to capture their conversation. Randy Paxton made a
number of inculpatory statements to Walker while en route to
the warehouse. When their three co-defendants joined Paxton
and Walker in the van, conversation among all five commenced.
Several minutes into their discussion, Berry remarked that
the van was "probably bugged, " Gov. Ex. Draft Tr.
8, and he then pointed out areas where he thought there might
be surveillance cameras. Nonetheless, the defendants
continued to converse and make incriminating statements. The
recording equipment captured these statements as well as the
identifying information each of the defendants was asked to
provide prior to being seated in the van. The defendants'
answers to the biographical questions were used by the ATF to
identify each speaker in the ensuing conversations.
arrival at the ATF field office, the defendants were
interviewed individually after being apprised of their rights
under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.
1602 (1966). The recording equipment was removed from the van
and the contents were downloaded and subsequently
transcribed; the equipment was then re-installed in the van
for purposes of the subsequent trip to the Metropolitan
Correctional Center, where the defendants would be jailed.
Although the recording equipment could be configured in such
a way as to broadcast the detainees' conversations in
real time to the van driver and his passenger, the equipment
was not set up in that manner and was instead used only to
record the detainees' conversations for use at a later
jury charged the five defendants with (among other offenses)
conspiring to possess, with the intent to distribute, 500
grams or more of cocaine, in violation of 21 U.S.C. §
846; conspiring to commit a robbery, in violation of the
Hobbs Act, 18 U.S.C. § 1951(a); and possession of a
firearm in furtherance of those crimes, in violation of 18
U.S.C. § 924(c)(1)(A). The section 846 charges were
later dismissed without prejudice on the government's
defendants moved to suppress any recorded statements they
made within the van while en route to the warehouse and ATF
field office, and the district court granted that motion in
part following an evidentiary hearing. Following his
colleague's decision in United States v.
Williams,15 F.Supp.3d 821 (N.D.Ill. 2014) (Castillo, C.
J.), Judge Gettleman found that the defendants initially had
both a subjective as well as an objectively reasonable
expectation of privacy in their conversations within the rear
compartment of the police van. United States v.
Paxton, No. l:13-cr-00103, 2014 WL 3807965, at *1
(N.D.Ill. July 31, 2014) ("Paxton I").
That expectation of privacy was reinforced by testimony from
a task force officer seated in the front compartment that he
could hear conversation occurring in the rear compartment at
a normal volume but that he did not overhear any such
conversation on the night that the defendants were arrested
and transported. Id. "It is obvious that
defendants took steps to conceal their conversation from the
officers driving the vehicle by lowering their voices, and
were under the impression, at least initially, that their
discussi on was private." Id. Any subjective
expectation of privacy on the part of the defendants ended,
however, once defendant Berry placed his co-defendants on
notice of the probability that they were being monitored.
Id., at *2. The court therefore suppressed any
statements that the defendants may have uttered prior to
Berry's warning-as those statements were uttered with an
expectation of privacy and intercepted without judicial
authorization-but not after. Id. The court rejected