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United States v. Kelly

United States District Court, E.D. Wisconsin

May 16, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
FONTAE KELLY, Defendant.

          ORDER OVERRULING OBJECTION (DKT. NO. 223), ADOPTING JUDGE JONES'S RECOMMENDATION (DKT. NO. 219) AND DENYING MOTION TO SUPPRESS (DKT. NO. 195)

          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 defendant'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 (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 (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, No. 17-CR-16, Dkt. No. 149 (E.D. Wis. Apr. 23, 2018); United States v. Tirado Jr., No. 16-CR-168, Dkt. No. 504, at 6-8 (E.D. Wis. Apr. 16, 2018); and United States v. Kubasiak, 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 (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, California v. Ciraolo, 476 U.S. 207, 213 (1986), and that police may use surveillance technology to substitute for surveillance which they could lawfully have conducted themselves, United States v. Knotts, 460 U.S. 276, 282 (1983). Dkt. No. 219 at 2-3.

         Judge Jones observed that the two surveillance cameras monitored the exterior entrance of apartment Unit B41 and the exterior entrance to the apartment building. Id. at 4. He likened these areas to the common areas of an apartment building and found that "the 'area outside one's door lacks anything like the privacy of the area inside.'" Id. (quoting Concepcion, 942 F.2d at 1172). Judge Jones discussed Carpenter, noting that the Supreme Court had deemed the holding "narrow" and had stated that it "did not 'call into question conventional surveillance techniques and tools, such as security cameras.'" Id. (quoting Carpenter, 138 S.Ct. at 2220). He also distinguished Carpenter on its facts, finding that Carpenter dealt with cell site location information ("CSLI") that could gather a detailed history of a person's whereabouts for a long period of time, whereas "the installed cameras at issue here only captured [the defendant's] comings and goings from one particular place for approximately nine days." Id. at 5. Judge Jones found that the cameras didn't capture any activity that neighbors, postal workers or law enforcement could not have observed with their own eyes. Id. Judge Jones concluded that because the defendant had not shown that law enforcement violated his reasonable expectation of privacy, this court should deny the motion to suppress. Id. at 5.

         D. The ...


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