United States v. Llufrio

237 F. Supp. 3d 735, 2017 WL 604009, 2017 U.S. Dist. LEXIS 21494
CourtDistrict Court, N.D. Illinois
DecidedFebruary 15, 2017
DocketNo. 15 CR 703
StatusPublished

This text of 237 F. Supp. 3d 735 (United States v. Llufrio) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Llufrio, 237 F. Supp. 3d 735, 2017 WL 604009, 2017 U.S. Dist. LEXIS 21494 (N.D. Ill. 2017).

Opinion

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 t'o 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.

BACKGROUND1

The Government charges .in an indictment that Llufrio conspired with codefen-dant Sergio Fuente and cooperating witness .Ismael Bustamante to possess and distribute narcotics, alleging that Busta-mante 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).

[738]*738. 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, Llu-frio 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 to1 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 at903.4 “A reasonable expectation of privacy exists when the defendant manifested a subjective expectation of privacy and society recognizes [739]*739that 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). “[Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable un'der 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, 88 S.Ct. 507).

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 Llu-frio 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.”).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Miranda v. Arizona
384 U.S. 436 (Supreme Court, 1966)
Katz v. United States
389 U.S. 347 (Supreme Court, 1967)
Hudson v. Palmer
468 U.S. 517 (Supreme Court, 1984)
Horton v. California
496 U.S. 128 (Supreme Court, 1990)
United States v. Swift
623 F.3d 618 (Eighth Circuit, 2010)
Edward Glen Williams v. Louis S. Nelson, Warden
457 F.2d 376 (Ninth Circuit, 1972)
In the Matter of John Doe Trader Number One
894 F.2d 240 (Seventh Circuit, 1990)
United States v. You Bin Yang and You Lin Yang
478 F.3d 832 (Seventh Circuit, 2007)
United States v. Acox
595 F.3d 729 (Seventh Circuit, 2010)
United States v. Villegas
495 F.3d 761 (Seventh Circuit, 2007)
State v. Munn
56 S.W.3d 486 (Tennessee Supreme Court, 2001)
People v. Liberg
486 N.E.2d 973 (Appellate Court of Illinois, 1985)
United States v. Delaema
583 F. Supp. 2d 104 (District of Columbia, 2008)
Napper v. United States
22 A.3d 758 (District of Columbia Court of Appeals, 2011)
United States v. Best
255 F. Supp. 2d 905 (N.D. Indiana, 2003)
State v. Williams
2013 Ohio 5076 (Ohio Court of Appeals, 2013)
United States v. Kenyon Walton
763 F.3d 655 (Seventh Circuit, 2014)
United States v. Tommy Webster
775 F.3d 897 (Seventh Circuit, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
237 F. Supp. 3d 735, 2017 WL 604009, 2017 U.S. Dist. LEXIS 21494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-llufrio-ilnd-2017.