United States District Court, E.D. Wisconsin
ORDER OVERRULING OBJECTION (DKT. NO. 223), ADOPTING
JUDGE JONES'S RECOMMENDATION (DKT. NO. 219) AND DENYING
MOTION TO SUPPRESS (DKT. NO. 195)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
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.
Jones drew the "facts" section of his report and
recommendation from the parties' briefs. Dkt. No. 219 at
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.
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.
The Parties' Arguments
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
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
Judge Jones' Report and Recommendation Judge
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.
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.