In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐2962
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JOHN EDWARD SCOTT,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 09 CR 98 — Theresa L. Springmann, Judge.
____________________
ARGUED JANUARY 17, 2013 — DECIDED SEPTEMBER 10, 2013
____________________
Before MANION and TINDER, Circuit Judges, and LEE,
District Judge.
LEE, District Judge. While executing a search warrant,
police found illegal drugs and a firearm in John Edward
The Honorable John Z. Lee, District Judge for the United States District
Court for the Northern District of Illinois, sitting by designation.
2 No. 12‐2962
Scott’s home. Scott was subsequently indicted for two drug
offenses and two firearms offenses. The affidavit submitted
by the police to obtain the warrant described two controlled
drug buys in which detectives used a confidential informant
(“CI”) to purchase heroin from a Gerald Reynolds. On each
occasion, after meeting with the CI, Reynolds drove alone to
Scott’s house and returned to the CI with the requested
heroin. The affidavit contained one sentence describing an
audio recording of a conversation between Reynolds and
Scott that occurred in Scott’s driveway during the first
controlled buy.
Scott filed a motion to suppress the evidence seized in
the search of his house, arguing that the recorded driveway
conversation was obtained in violation of the Fourth
Amendment and that the seized evidence constituted fruit
from that poisonous tree. The district court denied the
motion, and Scott pled guilty to possessing a controlled
substance with the intent to distribute in violation of 21
U.S.C. § 841(a)(1). He was sentenced to 120 months of
imprisonment followed by eight years of supervised release.
As permitted by his plea agreement, Scott now appeals the
denial of his suppression motion, arguing that he had a
reasonable expectation of privacy in the driveway
conversation and that, without the recorded conversation,
the government lacked probable cause to obtain a search
warrant for his house.
For the reasons given below, we conclude that there was
sufficient evidence apart from the driveway conversation to
establish probable cause for the search warrant. Thus, we
need not reach the issue of whether Scott had a reasonable
expectation of privacy in his driveway conversation with
No. 12‐2962 3
Reynolds and affirm the district court’s denial of Scott’s
motion to suppress.
BACKGROUND
On August 19, 2009, Allen County, Indiana police
detectives arranged for a CI to buy heroin from Reynolds in
Fort Wayne, Indiana. Before the CI contacted Reynolds,
detectives searched the CI’s person and vehicle to make sure
there was no contraband. Detectives outfitted the CI with an
audio recording device and hid a second recording device
inside the CI’s vehicle.
Under the detectives’ constant surveillance, the CI drove
to a motel in Fort Wayne and entered a room to effectuate a
heroin transaction with Reynolds. From here, what started
out as a rather unremarkable law enforcement operation
took an unusual turn.
Rather than completing the transaction in the motel
room, Reynolds called his supplier to arrange a meeting.
Reynolds then left the motel with the CI in the CI’s car and
drove to a gas station. At the gas station, the CI exited the
car, and Reynolds drove the CI’s car alone to Scott’s one‐
story, single‐family house. Scott’s house had an attached
two‐car garage, and the driveway connecting the garage to
the street was approximately three car lengths long.
After Reynolds parked in Scott’s driveway, about half
way between the street and the garage, Scott exited the
house and approached the driver’s side of the car. Scott then
spoke to Reynolds for about five minutes. During the
conversation, Scott stood outside the car, and Reynolds sat
in the driver’s seat of the car. Unbeknownst to either man,
4 No. 12‐2962
the audio device in the CI’s car was recording their
conversation, and an officer was watching them from a
nearby surveillance vehicle.
In their conversation, Scott and Reynolds discussed the
price of heroin. Scott told Reynolds that he was trying to get
some “yay,” which detectives believed meant cocaine, and
that his supplier was charging him $150 for a “ball,” which
detectives believed was an eighth of an ounce of cocaine.
Reynolds said that he had a guy who was looking for a
“quarter,” which detectives believed meant a quarter of an
ounce of cocaine. Scott then returned to the house.
Still under surveillance, Reynolds backed out of the
driveway and returned to the gas station. He picked up the
CI, and the pair went to the motel, where Reynolds handed
1.7 grams of heroin to the CI.
Five days later, the CI performed a second controlled
buy. As in the first instance, the detectives searched the CI
and the CI’s car to ensure it did not contain contraband.
Under constant surveillance, the CI again met with Reynolds
at the motel and went to the same gas station. Reynolds then
drove alone in the CI’s car to Scott’s house. This time,
Reynolds parked in the driveway, entered the house for
about five minutes, and then exited the house and drove
back to the gas station. There was no audio recording of any
conversation. After Reynolds rendezvoused with the CI at
the gas station, the CI gave detectives 1.74 grams of heroin.
Two days later, one of the detectives submitted a two‐
page affidavit to an Allen County Superior Court judge
seeking a warrant to search Scott’s house. The affidavit
stated that the CI had previously proven to be credible and
No. 12‐2962 5
reliable and had provided prior information that had been
corroborated by the detectives. It also recounted the details
of the two controlled buys and the steps taken to monitor the
CI and Reynolds. The affidavit’s only reference to the audio
recording of the driveway conversation between Scott and
Reynolds during the first controlled buy was in one
sentence: “The conversation between the suspect and the
individual that exited the residence was recorded by a covert
recording device and captured conversation concerning the
exchange of buy money for heroin.”
A search warrant was issued, and officers searched
Scott’s house. During the search, officers found a loaded
handgun, 928 grams of cocaine, 434 grams of marijuana, and
3 grams of heroin in Scott’s bedroom.
Scott was indicted on two drug charges and two firearms
charges. He moved to suppress the evidence seized in the
search on the grounds that the driveway conversation was
illegally recorded and that the evidence was fruit from that
poisonous tree. The district court denied his motion. Scott
then pled guilty to possession with the intent to distribute a
controlled substance, and the other three charges against
him were dismissed. As part of the plea agreement, Scott
reserved the right to appeal the denial of his motion to
suppress. He now brings that appeal.
DISCUSSION
When reviewing a district court’s denial of a motion to
suppress, we review the court’s legal conclusions de novo
and defer to the district court’s factual findings unless those
findings are clearly erroneous. See U.S. v. Schmidt, 700 F.3d
934, 937 (7th Cir. 2012).
6 No. 12‐2962
On appeal, Scott raises two issues. First, he argues that
the district court erred in denying his request to suppress his
driveway conversation with Reynolds because he had a
reasonable expectation of privacy in the conversation under
the Fourth Amendment and the federal wiretapping statute,
18 U.S.C. § 2510 et seq.1
Second, Scott argues that the district court erred in
denying his motion to suppress the evidence seized during
the search of his house. Scott contends that, without the
contents of the driveway conversation, the police would not
have had probable cause to obtain a search warrant and thus
the evidence recovered during the search of his house was
fruit of a poisonous tree.
The party seeking suppression bears the burden of
establishing that he had a reasonable expectation of privacy
in what was searched. See United States v. Pitts, 322 F.3d 449,
456 (7th Cir. 2003); United States v. Meyer, 157 F.3d 1067, 1079
(7th Cir. 1998). With this in mind, we turn to each of Scott’s
arguments.
As to Scott’s first argument, the Fourth Amendment
guarantees “[t]he right of the people to be secure in their
persons … against unreasonable searches and seizures.” U.S.
Const. Amend. IV. “[A] Fourth Amendment search occurs
1 Under the federal wiretapping statute, commonly known as “Title III”
of the Omnibus Crime Control and Safe Streets Act of 1968, see Omnibus
Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 et seq., oral
communications may not be recorded or intercepted with an electronic
or mechanical device absent strict compliance with other provisions of
Title III, which the government concedes were not satisfied here. See 18
U.S.C. § 2511(1)(b).
No. 12‐2962 7
when the government violates a subjective expectation of
privacy that society recognizes as reasonable.” Kyllo v.
United States, 533 U.S. 27, 33 (2001) (citing Katz v. United
States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring)); see
United States v. Mendoza, 438 F.3d 792, 795 (7th Cir. 2006) (“A
reasonable expectation of privacy is infringed when (1) the
defendant exhibits an actual or subjective expectation of
privacy and (2) the expectation is one that society is
prepared to recognize as reasonable.”) (citing Katz, 389 U.S.
at 361).
The government agrees that Scott had a subjective
expectation of privacy in his driveway conversation with
Reynolds. Thus, the issue raised by Scott is whether his
expectation of privacy was reasonable.
The reasonableness of an expectation of privacy depends
upon “whether the government’s intrusion infringes upon
the personal and societal values protected by the Fourth
Amendment.” California v. Ciraolo, 476 U.S. 207, 212 (1986)
(citing Oliver v. United States, 466 U.S. 170, 181‐83 (1984)). A
court’s inquiry into whether a defendant’s expectation of
privacy in the subject of the search was reasonable for
Fourth Amendment purposes is “necessarily fact dependent,
and whether a legitimate expectation of privacy exists in a
particular place or thing must be determined on a case‐by‐
case basis.” United States v. Villegas, 495 F.3d 761, 767 (7th
Cir. 2007) (citation and quotation omitted).
Furthermore, as the Supreme Court has noted, “the
Fourth Amendment protects people, not places. What a
person knowingly exposes to the public, even in his own
home or office, is not a subject of Fourth Amendment
protection … [b]ut what he seeks to preserve as private, even
8 No. 12‐2962
in an area accessible to the public, may be constitutionally
protected.” Katz, 389 U.S. at 351 (internal citations omitted).
In Katz, an individual had an objectively reasonable
expectation of privacy in a conversation he had in a public
telephone booth because, even though the booth was glass,
he “occupie[d] it, shut[] the door behind him, and pa[id] the
toll.” Id. at 352. Because he sought to exclude the “uninvited
ear,” he was “surely entitled to assume that the words he
utters into the mouthpiece will not be broadcast to the
world.” Id.; see also United States v. Hagarty, 388 F.2d 713, 714‐
16 (7th Cir. 1968) (individual had a reasonable expectation of
privacy in an after‐hours conversation in an office because
“[t]he key is whether defendant sought to exclude ‘the
uninvited ear’”) (citing Katz, 389 U.S. at 351‐52).
Conversely, an individual who makes a phone call on a
public phone not enclosed in a booth and in a voice audible
to a person standing nearby “knowingly expose[s] [the
conversation] to the public” and is not entitled to Fourth
Amendment protection. United States v. McLeod, 493 F.2d
1186, 1188 (7th Cir. 1974) (quotation omitted); see In re John
Doe Trader Number One, 894 F.2d 240, 241 (7th Cir. 1990) (no
reasonable expectation of privacy in recorded “statements of
traders in the crowded, boisterous pits of the Chicago
Mercantile Exchange” because by making the statements on
the trading floor where an FBI agent overheard and
recorded them, the defendant exposed the statements to the
public).
Here, Scott contends that his expectation of privacy in his
driveway conversation with Reynolds was reasonable in
view of the circumstances. The government argues the
contrary. We, however, need not decide this issue for the
No. 12‐2962 9
purposes of this appeal because, even assuming, arguendo,
that the recording of the conversation had been procured
illegally, the search warrant was sufficiently supported by
facts separate and apart from the recording, which then
brings us to Scott’s second argument.
Scott correctly contends that evidence discovered
pursuant to a warrant will be inadmissible if the warrant
was secured from a judicial officer through the use of
illegally acquired information. United States v. Oakley, 944
F.2d 384, 386 (citing Silverthorne Lumber Co. v. United States,
251 U.S. 385, 391‐92 (1920)). But “[a] search warrant
obtained, in part, with evidence which is tainted can still
support a search if the ‘untainted information, considered by
itself, establishes probable cause for the warrant to issue.’”
United States v. Gray, 410 F.3d 338, 344 (7th Cir. 2005)
(quoting Oakley, 944 F.2d at 386); see United States v. Karo, 468
U.S. 705, 719 (1984). In assessing whether the results of the
subsequent search must be suppressed, we consider two
questions: (1) whether the illegally obtained evidence
affected the judge’s decision to issue the warrant; and (2)
whether the decision to seek the warrant was prompted by
information unlawfully obtained. Id.; United States v.
Markling, 7 F.3d 1309, 1315‐16 (7th Cir. 1993).
Here, even assuming Scott’s driveway conversation was
illegally obtained, the affidavit police submitted to obtain
the search warrant contained sufficient facts to establish
probable cause apart from the one‐sentence reference to the
driveway conversation.
Regarding the first inquiry, Scott argues that without
reference to the recorded conversation, the affidavit
submitted to the Allen County Superior Court judge would
10 No. 12‐2962
no longer support probable cause because it would contain
only circumstantial evidence – that Reynolds made a phone
call from a motel, dropped off the CI at a gas station, went to
Scott’s house, and then returned to the gas station and gave
the CI heroin. Scott contends that this evidence is insufficient
to support probable cause to search his house because it is
unknown what occurred at Scott’s house, and Reynolds
could have had heroin on his person prior to calling or
coming into contact with Scott. To this, Scott adds that the
detectives did not observe any hand‐to‐hand exchange
between Scott and Reynolds in Scott’s driveway.
But the “central teaching of [Supreme Court] decisions
bearing on the probable cause standard is that it is a
‘practical, nontechnical conception.’” Illinois v. Gates, 462
U.S. 213, 231 (1983) (quoting Brinegar v. United States, 338
U.S. 160, 176 (1949)). “[P]robable cause is a fluid concept –
turning on the assessment of probabilities in particular
factual contexts – not readily, or even usefully, reduced to a
neat set of legal rules.” Id. at 232. “Probable cause is
established when, based on the totality of the circumstances,
the affidavit [to the judge] sets forth sufficient evidence to
induce a reasonably prudent person to believe that a search
will uncover evidence of a crime.” United States v. Peck, 317
F.3d 754, 756 (7th Cir. 2003).
Furthermore, “[i]n issuing a search warrant, a [judge] is
given license to draw reasonable inferences concerning
where the evidence referred to in the affidavit is likely to be
kept, taking into account the nature of the evidence and the
offense,” including, in a drug‐related case, the inference that
evidence of drug dealing is likely to be found where the
dealer lives. United States v. Singleton, 125 F.3d 1097, 1102
No. 12‐2962 11
(7th Cir. 1997). “Moreover, when observing activity of a
person suspected of criminal activity, Government agents
are entitled to reasonably rely upon their special knowledge
and expertise to assess probabilities and draw inferences,”
United States v. Marin, 761 F.2d 426, 432 (7th Cir. 1985), and a
judge may take into account the experience and special
knowledge of the officers if the search warrant explains the
significance of specific types of information. United States v.
Lamon, 930 F.2d 1183, 1189 (7th Cir. 1991). What is more,
“[g]enerally, a controlled buy, when executed properly, is a
reliable indicator as to the presence of illegal drug activity.”
United States v. Sidwell, 440 F.3d 865, 869 (7th Cir. 2006).
Finally, it bears noting that a “determination of probable
cause should be paid great deference by reviewing courts.”
Gates, 462 U.S. at 236. “[T]he duty of a reviewing court is
simply to ensure that the [judge] had a ‘substantial basis for
concluding’ that probable cause existed.” Id. at 238‐39.
Here, the recorded conversation was only one among
many facts in the search warrant affidavit submitted to the
judge. The affidavit contained only one sentence about the
recorded conversation: “The conversation between the
suspect and the individual that exited the residence was
recorded by a covert recording device and captured
conversation concerning the exchange of buy money for
heroin.” Apart from this sentence, the affidavit contained an
array of other facts, including a description of Scott’s house
and the protocol used in the two controlled buys. To wit, the
affidavit described that, during each controlled buy, the CI
was searched to ensure the absence of contraband and was
under constant surveillance until the heroin was turned over
to detectives; on each occasion, the CI met with Reynolds,
who dropped off the CI at the gas station and, while still
12 No. 12‐2962
under surveillance, drove the CI’s vehicle to Scott’s house;
on the first occasion, Scott exited the house and talked with
Reynolds; on the second, Reynolds entered Scott’s house; on
each occasion, Reynolds then returned to the gas station and
met the CI, who then turned over heroin to detectives. These
facts are sufficient to establish probable cause to search
Scott’s home for evidence of drugs. Indeed, a probable cause
determination requires only a probability of criminal
activity, not an actual showing of it. Gates, 462 U.S. at 225.
Thus, the judge had probable cause to issue a search warrant
even absent the description of the recorded driveway
conversation.
As to the second inquiry, whether the decision to seek
the warrant was prompted by information unlawfully
obtained, Scott argues that the recorded driveway
conversation is the primary reason detectives sought the
warrant. As stated, however, the detective’s affidavit
contained many facts other than the recording of Scott’s
driveway conversation, and these other facts were sufficient
to create probable cause to support a search warrant of
Scott’s house.
CONCLUSION
For these reasons, the district court’s denial of Scott’s
motion to suppress evidence seized from the search of his
house is AFFIRMED.