United States v. Paxton

• Decision Date: 17 February 2017
• Docket Number: Nos. 14-2913 & 15-1294,s. 14-2913 & 15-1294
• Citation: 848 F.3d 803
• Parties: UNITED STATES of America, Plaintiff–Appellant, Cross–Appellee, v. Cornelius PAXTON, et al., Defendants–Appellees, and Matthew Webster, Defendant–Appellee, Cross–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

848 F.3d 803

UNITED STATES of America, Plaintiff–Appellant, Cross–Appellee,

v.Cornelius PAXTON, et al., Defendants–Appellees,andMatthew Webster, Defendant–Appellee, Cross–Appellant.

Nos. 14-2913 & 15-1294

United States Court of Appeals, Seventh Circuit.

Argued December 1, 2016

Decided February 17, 2017

Debra Riggs Bonamici, Jennie Levin, Attorneys, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellant, Cross–Appellee.

Standish E. Willis, Attorney, Law Office of Standish E. Willis, Chicago, IL, for Cornelius Paxton.

J. Clifford Greene, Jr., Attorney, Law Offices of J. Clifford Greene, Jr., Chicago, IL, for Randy Walker.

Thomas C. Brandstrader, Attorney, Law Office of Thomas C. Brandstrader, Chicago, IL, for Randy Paxton.

Bart E. Beals, Attorney, Beals Law Firm, Chicago, IL, for Adonis Berry.

Carol A. Brook, Candace R. Jackson, Attorneys, Office of the Federal Defender Program, Chicago, IL, for Matthew Webster.

Before Posner, Ripple, and Rovner, Circuit Judges.

Rovner, Circuit Judge.

The 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 , ––– U.S. ––––, 135 S.Ct. 2368, 192 L.Ed.2d 158 (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.

I.

The 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").

Two of 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.

Within 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. 1:13–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.

None of 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.

During 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.

Upon 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, 16 L.Ed.2d 694 (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 date.

A grand 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 motion.

The defendants moved to suppress any recorded statements they made within the van while en route to the ware-house 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. 1:13–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 discussion 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 the defendants' request to suppress, as fruit of the poisonous tree, any statements they subsequently made when interviewed (following Miranda warnings) at the ATF field office. The court reasoned that neither the interviewing agents nor anyone else had listened to the recording of the van conversations at that point, so in that respect the interviews were not the tainted product of the recording. Id.

The court denied the defendants' subsequent motion to reconsider its finding that their subjective expectation of privacy ended with Berry's warning. Paxton II , 2015 WL 493958. After inspecting a van identical to the one used to transport the defendants, the court had no doubt that each of the defendants in the rear compartment would have heard Berry's warning. Id. , at *2. The inspection also confirmed the court's understanding that agents in the front compartment of the van would have been unable to overhear a conversation occurring in the rear compartment of the van so long as the detainees were speaking quietly. Id.

II.

The government appeals the district court's decision to suppress any statements made by the defendants within the police van before Berry warned his comrades that the van was likely bugged. In the government's view, detainees can have no reasonable expectation of conversational privacy within a clearly-marked police vehicle, regardless of the particular type (and configuration) of vehicle in which they are being transported. Webster, by contrast, challenges the district court's decision that his subjective expectation of privacy ended with Berry's warning about the probability of electronic surveillance.

The Fourth Amendment safeguards "[t]he right of the people to be secure in their...