United States v. Kelly

385 F. Supp. 3d 721
CourtDistrict Court, E.D. Wisconsin
DecidedMay 16, 2019
DocketCase No. 17-cr-175-pp
StatusPublished
Cited by1 cases

This text of 385 F. Supp. 3d 721 (United States v. Kelly) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Kelly, 385 F. Supp. 3d 721 (E.D. Wis. 2019).

Opinion

HON. PAMELA PEPPER, United States District Judge

On February 19, 2019, Magistrate Judge David E. Jones issued a report recommending that this court deny defendant Fontae Kelly's motion to suppress the fruits of a video surveillance search. Dkt. No. 219. The defendant filed a timely objection to the recommendation, dkt. no. 223, and the government responded, dkt. no. 225. Because the court finds that the defendant did not have a reasonable expectation of privacy in the apartment's hallway or the exterior of the apartment building's entrance, the court adopts Judge Jones's recommendation and denies the defendant's motion to suppress.

I. BACKGROUND

A. Facts

Jones Jones drew the "facts" section of his report and recommendation from the parties' briefs. Dkt. No. 219 at 1-2.1 Judge Jones recounted that

[b]ased on an investigation into drug distribution activities involving defendant and others, law enforcement installed a video surveillance camera in the hallway on floor level B of 2220 N. Martin Luther King Drive, Milwaukee, in September 2017. Motion to Suppress Fruits of Apartment Video Surveillance Searches 1. The video camera pointed at the exterior door to apartment unit B41 ("the apartment"). Id. at 2. Law enforcement also installed a "pole camera" on a utility pole in proximity to that same apartment complex. Response To Motion To Suppress Fruits of Apartment Video Surveillance Searches 1. On September 27, 2017, law enforcement executed a search warrant for unit B41 and found approximately 10 ounces of heroin, 33 grams of Fentanyl, a kilo press, a grinder, and a firearm. Id. at 2.

Dkt. No. 219 at 1-2. The apartment on Martin Luther King Blvd. was not the *723defendant's residence; he lived at 1810 N. 55th Street in Milwaukee. Dkt. No. 202 at 2.

B. The Parties' Arguments

In asking the court to suppress the evidence, the defendant argued that the government's two video surveillances of the apartment building on Martin Luther King Blvd. constituted unreasonable searches under the Fourth Amendment. Dkt. No. 195 at 2. Citing the Supreme Court's decision in Carpenter v. United States, --- U.S. ----, 138 S. Ct. 2206, 201 L.Ed.2d 507 (2018), the defendant argued that the warrantless installation of two video surveillance cameras violated his reasonable expectation of privacy. Dkt. No. 195 at 3-9. He asked the court to find the warrantless searches presumptively unreasonable and to suppress all fruits of the two video surveillance cameras. Id. at 8 (citing Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ).

The government responded that the court should deny the motion because the defendant had no legitimate expectation of privacy in either the apartment's hallway or the outer perimeter of the apartment complex. Dkt. No. 202 at 3. It noted that other courts in this district had held that pole camera surveillance did not violate the Fourth Amendment. Id. at 3 (citing United States v. Kay, Case No. 17-CR-16, Dkt. No. 149 (E.D. Wis. Apr. 23, 2018); United States v. Tirado Jr., Case No. 16-CR-168, Dkt. No 504, at 6-8 (E.D. Wis. Apr. 16, 2018); and United States v. Kubasiak, Case No. 18-CR-120, Dkt. No. 48 (E.D. Wis. Oct. 5, 2018)). The government maintained that the defendant did not have a reasonable expectation of privacy in the hallway of an apartment building in which he did not live. Id. at 4. It likened this case to United States v. Concepcion, 942 F.2d 1170 (7th Cir. 1991) ), where the Seventh Circuit found that "a tenant has no reasonable expectation of privacy in the common areas of an apartment building." Concepcion, 942 F.2d at 1172. Finally, the government argued that Judge Jones should interpret the Carpenter decision narrowly and that, even if the court found the installation of the video surveillance to be an unreasonable search, it should uphold the searches under the good faith exception to the warrant requirement. Id. at 5 (citing United States v. Curtis, 901 F.3d 846, 849 (7th Cir. 2018) (upholding government's collection of warrantless CSLI data on good faith exception)).

C. Judge Jones' Report and Recommendation

Judge Jones recommended that this court deny the motion to suppress. Dkt. No. 219 at 1. He noted that in determining whether a particular search was unreasonable, he had to consider "whether a trespass by law enforcement occurred, or whether an individual's reasonable expectation of privacy was violated by law enforcement." Id. at 2 (citing United States v. Jones, 565 U.S. 400, 408-09, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) ). He observed that while the government bears the burden of justifying a warrantless search, the defendant carries the burden of showing that he had a reasonable expectation of privacy in the location searched. Id. (citing United States v. Villegas, 495 F.3d 761, 767 (7th Cir. 2007) ). In reviewing Seventh Circuit and Supreme Court case law, Judge Jones found that an individual does not have a reasonable expectation of privacy in what he knowingly exposes to the public,

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Bluebook (online)
385 F. Supp. 3d 721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kelly-wied-2019.