In the
United States Court of Appeals
For the Seventh Circuit
Nos. 14‐2913 & 15‐1294
UNITED STATES OF AMERICA,
Plaintiff‐Appellant,
Cross‐Appellee,
v.
CORNELIUS PAXTON, et al.,
Defendants‐Appellees,
and
MATTHEW WEBSTER,
Defendant‐Appellee,
Cross‐Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:13‐cr‐00103 — Robert W. Gettleman, Judge.
ARGUED DECEMBER 1, 2016 — DECIDED FEBRUARY 17, 2017
2 Nos. 14‐2913 & 15‐1294
Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. The district court suppressed the
covertly‐recorded statements that the defendants made to one
another while being transported in a police van immediately
after their arrests, finding that the characteristics of the van
supported a reasonable expectation of privacy in the defen‐
dants’ conversations. The government has appealed that
ruling, and defendant Matthew Webster has cross‐appealed
the district court’s determination that his subjective expecta‐
tion of privacy ended when a co‐defendant warned others
within the van that they were likely being recorded. Building
upon our decision in United States v. Webster, 775 F.3d 897 (7th
Cir.), cert. denied, 135 S. Ct. 2368 (2015), we conclude that the
defendants lacked an objectively reasonable expectation of
privacy in the van, and we therefore reverse the district court’s
decision to suppress their statements. We dismiss Webster’s
cross‐appeal as moot.
I.
The five defendants in this case were arrested on the
evening of January 30, 2013, as they were preparing to execute
a planned robbery of what turned out to be a wholly fictitious
narcotics “stash house.” See, e.g., United States v. Lewis, 641 F.3d
773, 777‐78 (7th Cir. 2011). They had been recruited into the
scheme by an undercover agent who posed as a drug courier
seeking to rob the Mexican drug cartel for which he was
purportedly working. The sting was organized by a task force
comprised of Chicago police officers and agents of the federal
Bureau of Alcohol, Tobacco, Firearms & Explosives (“ATF”).
Nos. 14‐2913 & 15‐1294 3
Two of the defendants, Randy Walker and Randy Paxton,
were arrested outside of a Chicago restaurant. They were
placed into a police transport van that was clearly marked as
a Chicago Police Department vehicle. The vehicle was a Ford
E350 cargo van that had been modified for police use. The
van’s interior was divided into three compartments by two
solid steel walls with small double plexiglass viewing win‐
dows. The driver and a passenger would occupy the front
compartment, while the rear two compartments were reserved
for detainees. After Walker and Paxton were loaded into the
van, task force officers drove the van a short distance to a
warehouse, where the other three defendants—Cornelius
Paxton, Adonis Berry, and Matthew Webster—had convened
with the undercover agent for a final pre‐robbery meeting.
Those three defendants, having also been arrested, were placed
into the rear‐most compartment of the van along with Walker
and Randy Paxton.
Within the van, the defendants were seated on two benches
facing one another from opposite sides of the van—“shoulder
to shoulder, knee to knee,” as the district court later put it.
United States v. Paxton, No. 1:13‐cr‐00103, 2015 WL 493958, at *2
(N.D. Ill. Feb. 3, 2015) (“Paxton II”). All five of the defendants
had their wrists handcuffed behind their backs. The district
court would later determine that the defendants could expect
to be overheard conversing from outside of the compartment
only if they spoke in an above‐normal tone of voice.
None of the defendants was given Miranda warnings before
being placed into the van. Each defendant was, however, asked
by officers to state his name and certain other identifying
information before entering the van. Once all five defendants
4 Nos. 14‐2913 & 15‐1294
had been loaded, the van was driven to the Chicago field office
of the ATF.
During the drive, the defendants conversed quietly.
Unbeknownst to them, two recording devices (one audio, and
the other audiovisual) had been hidden in the rear compart‐
ment of the van so as to capture their conversation. Randy
Paxton made a number of inculpatory statements to Walker
while en route to the warehouse. When their three co‐defen‐
dants joined Paxton and Walker in the van, conversation
among all five commenced. Several minutes into their discus‐
sion, Berry remarked that the van was “probably bugged,”
Gov. Ex. Draft Tr. 8, and he then pointed out areas where he
thought there might be surveillance cameras. Nonetheless, the
defendants continued to converse and make incriminating
statements. The recording equipment captured these state‐
ments as well as the identifying information each of the
defendants was asked to provide prior to being seated in the
van. The defendants’ answers to the biographical questions
were used by the ATF to identify each speaker in the ensuing
conversations.
Upon arrival at the ATF field office, the defendants were
interviewed individually after being apprised of their rights
under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
The recording equipment was removed from the van and the
contents were downloaded and subsequently transcribed; the
equipment was then re‐installed in the van for purposes of the
subsequent trip to the Metropolitan Correctional Center, where
the defendants would be jailed. Although the recording
equipment could be configured in such a way as to broadcast
the detainees’ conversations in real time to the van driver and
Nos. 14‐2913 & 15‐1294 5
his passenger, the equipment was not set up in that manner
and was instead used only to record the detainees’ conversa‐
tions for use at a later date.
A grand jury charged the five defendants with (among
other offenses) conspiring to possess, with the intent to
distribute, 500 grams or more of cocaine, in violation of
21 U.S.C. § 846; conspiring to commit a robbery, in violation of
the Hobbs Act, 18 U.S.C. § 1951(a); and possession of a firearm
in furtherance of those crimes, in violation of 18 U.S.C.
§ 924(c)(1)(A). The section 846 charges were later dismissed
without prejudice on the government’s motion.
The defendants moved to suppress any recorded state‐
ments they made within the van while en route to the ware‐
house and ATF field office, and the district court granted that
motion in part following an evidentiary hearing. Following his
colleague’s decision in United States v. Williams, 15 F. Supp. 3d
821 (N.D. Ill. 2014) (Castillo, C. J.), Judge Gettleman found that
the defendants initially had both a subjective as well as an
objectively reasonable expectation of privacy in their conversa‐
tions within the rear compartment of the police van. United
States v. Paxton, No. 1:13‐cr‐00103, 2014 WL 3807965, at *1 (N.D.
Ill. July 31, 2014) (“Paxton I”). That expectation of privacy was
reinforced by testimony from a task force officer seated in the
front compartment that he could hear conversation occurring
in the rear compartment at a normal volume but that he did
not overhear any such conversation on the night that the
defendants were arrested and transported. Id. “It is obvious
that defendants took steps to conceal their conversation from
the officers driving the vehicle by lowering their voices, and
were under the impression, at least initially, that their discus‐
6 Nos. 14‐2913 & 15‐1294
sion was private.” Id. Any subjective expectation of privacy on
the part of the defendants ended, however, once defendant
Berry placed his co‐defendants on notice of the probability that
they were being monitored. Id., at *2. The court therefore
suppressed any statements that the defendants may have
uttered prior to Berry’s warning—as those statements were
uttered with an expectation of privacy and intercepted without
judicial authorization—but not after. Id. The court rejected the
defendants’ request to suppress, as fruit of the poisonous tree,
any statements they subsequently made when interviewed
(following Miranda warnings) at the ATF field office. The court
reasoned that neither the interviewing agents nor anyone else
had listened to the recording of the van conversations at that
point, so in that respect the interviews were not the tainted
product of the recording. Id.
The court denied the defendants’ subsequent motion to
reconsider its finding that their subjective expectation of
privacy ended with Berry’s warning. Paxton II, 2015 WL
493958. After inspecting a van identical to the one used to
transport the defendants, the court had no doubt that each of
the defendants in the rear compartment would have heard
Berry’s warning. Id., at *2. The inspection also confirmed the
court’s understanding that agents in the front compartment of
the van would have been unable to overhear a conversation
occurring in the rear compartment of the van so long as the
detainees were speaking quietly. Id.
II.
The government appeals the district court’s decision to
suppress any statements made by the defendants within the
Nos. 14‐2913 & 15‐1294 7
police van before Berry warned his comrades that the van was
likely bugged. In the government’s view, detainees can have
no reasonable expectation of conversational privacy within a
clearly‐marked police vehicle, regardless of the particular type
(and configuration) of vehicle in which they are being trans‐
ported. Webster, by contrast, challenges the district court’s
decision that his subjective expectation of privacy ended with
Berry’s warning about the probability of electronic surveil‐
lance.
The Fourth Amendment safeguards “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures[.]” U.S.
Const. amend. IV. Subject to limited exceptions, “warrants are
the general rule” in judging the reasonableness of a search or
seizure. Katz v. United States, 389 U.S. 347, 362, 88 S. Ct. 507, 517
(1967) (Harlan, J., concurring). A search within the protection
of the Fourth Amendment occurs when the government
intrudes upon an individual’s legitimate expectation of privacy
in the object of the search. Id. at 352‐53, 88 S. Ct. at 512 (major‐
ity); id. at 360–61, 88 S. Ct. at 516 (Harlan, J., concurring); see
Kyllo v. United States, 533 U.S. 27, 33, 121 S. Ct. 2038, 2042–43
(2001); Minnesota v. Olson, 495 U.S. 91, 95–96, 110 S. Ct. 1684,
1687 (1990); Smith v. Maryland, 442 U.S. 735, 740–41, 99 S. Ct.
2577, 2580 (1979). The amendment’s protections extend to
government eavesdropping upon one’s conversations with
others, in circumstances where he has a reasonable expectation
that the conversation is not subject to interception. See Katz, 389
U.S. at 353, 88 S. Ct. at 512 (treating interception and recording
of telephone conversation in public telephone booth as a search
and seizure within the meaning of Fourth Amendment); id. at
8 Nos. 14‐2913 & 15‐1294
361, 88 S. Ct. at 516–17 (Harlan, J., concurring). In order to
establish that he has a protected privacy interest in an inter‐
cepted conversation, the individual must show first that he
manifested a subjective expectation of privacy in that conversa‐
tion, and second, that his subjective expectation is one that
society is prepared to recognize as reasonable. E.g., Smith, 442
U.S. at 740–41, 99 S. Ct. at 2580. If he makes these showings,
then the warrantless interception and recording of his conver‐
sation will normally be considered to be an unauthorized
search and as such unlawful, absent the applicability of an
exception that justifies the government’s failure to obtain a
warrant. See Katz, 389 U.S. at 354‐59, 88 S. Ct. at 513–15.
Paralleling the coverage of the Fourth Amendment in the
realm of electronic surveillance is Title III of the Omnibus
Crime Control and Safe Streets Act of 1968 (“Title III”),
18 U.S.C. § 2510, et seq., which generally prohibits (again, with
certain exceptions) the interception, disclosure, and use of
wire, oral, and electronic communications absent judicial
authorization or the consent of one of the parties to such
communication. The statute’s definition of protected oral
communications, see § 2510(2), is “intended to parallel the
‘reasonable expectation of privacy’ test created by the Supreme
Court in Katz v. United States,” In re John Doe Trader No. One,
894 F.2d 240, 242 (7th Cir. 1990), and courts therefore apply the
same legal framework to suppression motions under either
source of authority. See United States v. Larios, 593 F.3d 82, 92
(1st Cir. 2010); United States v. Clark, 22 F.3d 799, 801 (8th Cir.
1994); United States v. McKinnon, 985 F.2d 525, 527 (11th Cir.
1993).
Nos. 14‐2913 & 15‐1294 9
Our decision in this case turns on whether any expectation
of privacy that the defendants may have harbored in their
conversations within the police van was an objectively reason‐
able expectation. As we discuss below, we held in Webster that
detainees lack an objectively reasonable expectation of privacy
in conversations taking place in the back seat of a squad car,
775 F.3d at 903‐04, but our decision held open the question of
whether detainees might have a reasonable expectation of
privacy in a different type of police vehicle, id. at 904. We
address that question now, and answer it in the negative.
In the three‐plus decades preceding the district court’s
suppression decision in this case, federal and state courts had
concluded with apparent unanimity that a person has no
objectively reasonable expectation of privacy while seated in a
marked patrol car. See United States v. Dunbar, 553 F.3d 48, 57
(1st Cir. 2009); United States v. Turner, 209 F.3d 1198, 1200–01
(10th Cir. 2000); Clark, 22 F.3d at 801‐02; McKinnon, 985 F.2d at
527–28; United States v. Fridie, 442 F. App’x 839, 841 (4th Cir.
2011) (per curiam) (non‐precedential decision); United States v.
Carter, 117 F.3d 1418 (table), 1997 WL 336290 (5th Cir. June 5,
1997) (per curiam) (unpublished); United States v. Sallee, No. 91
CR 20006‐19, 1991 WL 352613, at *2 (N.D. Ill. Oct. 24, 1991)
(collecting state cases); State v. Torgrimson, 637 N.W.2d 345, 350
(Minn. Ct. App. 2002); State v. Ramirez, 535 N.W.2d 847, 850
(S.D. 1995) (collecting cases); State v. Smith, 641 So.2d 849, 852
(Fla. 1994); People v. Crowson, 660 P.2d 389, 392‐93 (Cal. 1983)
(plurality), overruled in part on other grounds by People v. Myers,
858 P.2d 301 (Cal. 1993). Those holdings have deemed it
immaterial whether the individual has been arrested, tempo‐
rarily detained, or simply invited to sit in the car while the
10 Nos. 14‐2913 & 15‐1294
police conduct an investigation. See, e.g., Turner, 209 F.3d at
1201 (“whether an individual is in custody does not materially
affect an expectation of privacy in a police car”) (following
McKinnon, 985 F.2d at 528 (“[w]e find no persuasive distinction
between pre‐arrest and post‐arrest situations in this case”)
(collecting cases)).
A number of these decisions are, as Chief Judge Castillo
pointed out in Williams, fairly cursory in their treatment of the
issues. 15 F. Supp. 3d at 828. From the cases that address the
subject in any detail, two basic points emerge. First, the patrol
car is an official, crime‐fighting vehicle that serves both as a
police officer’s workplace and also as a mobile jail. Clark, 22
F.3d at 801–02. Consequently, an individual seated in that car
would have no reason to expect privacy within the car. Id.
Second, the dashboard area of a patrol car, which is visible to
anyone sitting in the car, “bristl[es]” with electronic equipment
(including two‐way radios, for example) that places one on
notice of the possibility that his oral statements may be
intercepted. Turner, 209 F.3d at 1201.
Prior to Williams, only a few cases had expressly dealt with
police vehicles other than squad cars; and although they too
had found no reasonable expectation of privacy for conversa‐
tions occurring within such vehicles, they did not expressly
address how the unique compartmentalization of the vehicle’s
interior might affect privacy expectations. See United States v.
Mahon, No. CR 09‐712‐PHX‐DGC, 2010 WL 3954506, at *4
(D. Az. Sep. 29, 2010) (“Defendants clearly had no legal
expectation of privacy while handcuffed in the police van.”)
(citation omitted), j. aff’d, 620 F. App’x 571 (per curiam) (non‐
precedential decision) & 804 F.3d 946 (9th Cir. 2015), cert.
Nos. 14‐2913 & 15‐1294 11
denied, 136 S. Ct. 2510 (2016); United States v. Reese, No.
1:09 CR 00145, 2010 WL 2606280, at *5 (N.D. Ohio June 25,
2010) (relying on squad car cases to hold that “none of the
defendants could reasonably expect that their conversations
were private merely because they were alone in the van,
handcuffed and awaiting transport to the Cleveland Police
Department for questioning”); United States v. Ingram, No.
IP 04‐201‐CR‐1 H/F, et seq., 2005 WL 775930, at *1 n.1 (S.D. Ind.
Mar. 25, 2005) (Hamilton, J.) (noting court’s prior oral ruling
that defendants lacked reasonable expectation of privacy
within a police van used to transport them to jail), appeal
dismissed sub. nom. United States v. Douglas, 182 F. App’x 558
(7th Cir. 2006) (per curiam) (unpublished).
In his Williams decision, Chief Judge Castillo acknowledged
the general line of authority as to squad cars, but found the
layout of a police squadrol to be materially distinct from that
of a patrol car vis‐à‐vis the expectation of privacy. In contrast
to a typical patrol car, a squadrol (which is used both as an
ambulance and as a vehicle to transport detainees) has a
separate cab for the driver and his passenger, resulting in a
physical division of the driver’s compartment from the fully
enclosed rear section of the vehicle. 15 F. Supp. 3d at 829.
Within their own compartment, the detainees are not within
earshot of officers sitting in the cab. Id. Moreover, the rear
compartment does not “bristle” with electronics that are visible
to detainees. Id. Detainees in the rear compartment of a
squadrol thus have practical reasons to expect privacy that
detainees in the back seat of a patrol car lack. Id. And that is
true even if the squadrol is regarded as a mobile jail. The judge
could not imagine that the types of safety concerns that
12 Nos. 14‐2913 & 15‐1294
outweigh individual privacy interests in the jail setting
(controlling narcotics and other contraband, and preventing
escape) are present to the same degree in a squadrol. Id. at
829–30. Indeed, if safety concerns were the motivation for the
government’s decision to intercept detainee conversations,
then its agents would have activated the live‐monitoring
feature of their equipment. But they had not taken advantage
of that feature, which led Judge Castillo to conclude that the
government’s real purpose in intercepting the detainee’s
conversations was to capture their incriminating statements. Id.
at 830. Weighing the totality of the circumstances, he con‐
cluded that the detainees had a reasonable expectation of
privacy in the rear compartment of the squadrol and that the
government’s wish to capture any incriminating remarks was
not justified. Id.
The modified cargo van at issue in this case has a layout
that is distinct from both the typical patrol car and the
squadrol: it has three compartments separated by metal
dividing walls with small (and thick) plexiglass viewing
windows. But there is no dispute that in material respects, the
van is more like the squadrol than the patrol car. Detainees are
seated within a separate, fully enclosed compartment—in this
case, with another empty compartment between them and the
driver’s compartment. The detainees’ compartment did not
“bristle” with visible electronic equipment. And, per Judge
Gettleman’s findings, the prisoners would have subjectively
expected that if they were speaking quietly, they would not be
overheard by the driver and his passenger. Judge Gettleman
thus relied on Williams to conclude that the defendants had an
objectively reasonable expectation of privacy in the conversa‐
Nos. 14‐2913 & 15‐1294 13
tions they conducted within the rear compartment of the van.
Paxton I, 2014 WL 3807965, at *1.
It was not long after Chief Judge Castillo’s decision in
Williams and Judge Gettleman’s first decision in Paxton that we
held in Webster that an individual lacks an objectively reason‐
able expectation of privacy in conversations occurring within
a squad car. 775 F.3d at 903–04. We found the decisions of our
six sister circuits instructive on this point, noting, as they had,
that squad cars function both as a mobile office for a patrol
officer and as a temporary jail for detainees in transport. Id. at
904 (citing Clark, 22 F.3d at 801–02, and McKinnon, 985 F.2d at
537). At the same time, such vehicles visibly bristle with
electronics that place a detainee on notice of the possibility that
his statements might be recorded. Id. (citing Turner, 209 F.3d at
1201).
Given the nature of the vehicle and the visible
presence of electronics capable of transmitting any
internal conversations, the expectation that a conver‐
sation within the vehicle is private is not an expecta‐
tion that society would recognize to be reasonable.
We agree with those circuits, and hold that conver‐
sations in a squad car such as the one in this case are
not entitled to a reasonable expectation of privacy,
and therefore the recording of the conversation [in
this case] is not a violation of the Fourth Amend‐
ment.
Id. We added, however, “that this holding reflects the layout
and equipment of the squad car, and express no opinion as to
conversations that occur in other vehicles.” Id. We cited and
14 Nos. 14‐2913 & 15‐1294
distinguished Williams, noting the distinctive layout of a police
squadrol that Chief Judge Castillo had relied upon to conclude
that detainees did have a reasonable expectation of privacy in
conversations occurring in that type of vehicle. Id. at 904.
This case requires us to confront the issue we left open in
Webster and to decide whether the unique features of police
vans and squadrols support an expectation of privacy that
society is prepared to recognize as reasonable. Although we
agree with Judges Castillo and Gettleman that distinctions can
be drawn between a squad car on the one hand and a police
squadrol or van on the other, we believe those distinctions
matter more as to a detainee’s subjective expectation of privacy
than they do to the objective reasonableness of that expectation
of privacy. The enclosed nature of the detainee compartment
in a van like the one used to transport the defendants in this
case may cause a detainee to think that he cannot be overheard.
See R. 156‐1 (declaration of Matthew Webster) ¶ 3 (“I believed
that the conversation was private because it was in a separate,
enclosed area of the paddy wagon and not in a squad car, and
because we had the conversation when no agents or officers
were present and the van door was shut … .”). But given the
inescapable fact that a detainee has been taken into custody
and placed into a marked police vehicle for transport to a law
enforcement facility, we are not convinced that any expectation
of privacy on the part of the detainee in the van is one that
society is prepared to recognize as reasonable.
At the outset, we emphasize that the police van was
functioning (and was designed to function) as a mobile jail cell.
See Clark, 22 F.3d at 801–02; McKinnon, 985 F.2d at 527. The
defendants had been arrested and placed in handcuffs, and
Nos. 14‐2913 & 15‐1294 15
they were being transported in the van to the ATF field office
for processing and questioning, and hence to incarceration. The
arrest itself resulted in a diminished expectation of privacy on
the part of the defendants, see McKinnon, 985 F.2d at 527, and
as detainees they could not reasonably have perceived the
(marked) police van as a sanctuary for private conversation,
Clark, 22 F.3d at 802; United States v. Colon, 59 F. Supp. 3d 462,
466 (D. Conn. 2014). See Hudson v. Palmer, 468 U.S. 517, 525–28,
104 S. Ct. 3194, 3200–01 (1984) (prisoner has no reasonable
expectation of privacy in prison cell), overruled in part on other
grounds by Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662
(1986); Lanza v. New York, 370 U.S. 139, 143, 82 S. Ct. 1218, 1221
(1962) (in jail setting, “official surveillance has traditionally
been the order of the day”); United States v. Madoch, 149 F.3d
596, 602 (7th Cir. 1998) (marital communications privilege does
not apply vis‐à‐vis recorded telephone conversations between
defendant and her incarcerated spouse, as privilege applies
only to communications made in confidence, and there is no
expectation of privacy in jail telephone calls).
The fact that the interior of the van was divided by walls
into separate, fully enclosed compartments in no way altered
the essential nature of the vehicle. The metal dividing walls,
with their thick plexiglass windows, were present to serve a
security function rather than to foster an atmosphere of
solitude and privacy. The defendants’ surroundings may have
lulled them into assuming, mistakenly, that their discussions
could not be overheard; but in that respect this case is no
different from those in which individuals have been left alone
in the back seat of a patrol car, thinking no one can overhear
what they say. See Clark, 22 F.3d at 800‐01; McKinnon, 985 F.2d
16 Nos. 14‐2913 & 15‐1294
at 526. Regardless of the particular layout, a police vehicle that
is readily identifiable by its markings as such, and which is
being used to transport detainees in restraints, does not
support an objectively reasonable expectation of conversational
privacy.
The rear compartment of the van was not “bristling” with
electronics, it is true. Cf. Turner, 209 F.3d at 1201. But even
when police radios, scanners, computer terminals and other
equipment are visible to a detainee, it is unlikely that any of
those items are actually the source of electronic surveillance;
the recording devices themselves, if present, are likely to be
nearly if not wholly invisible to the untrained eye. See Colon,
59 F. Supp. 3d at 466–67. Such electronic equipment that is
visible to a detainee may cause him to think about the prospect
of covert surveillance. But given the increasing presence of
unobtrusive, if not invisible, audio and video surveillance in all
manner of places, public and private,1 one wonders how much
of a reminder a detainee needs that he might be under
surveillance—particularly in a marked police vehicle—or that
this might be so regardless of whether he can see any obvious
signs of surveillance devices.
More to the point is the likelihood that we are fast ap‐
proaching a day when police interactions with civilians,
including detainees, will be recorded from beginning to end,
1
See, e.g., David Alan Sklansky, Too Much Information: How Not to Think
About Privacy and the Fourth Amendment, 102 Cal. L. Rev. 1069, 1085–87
(2014) (discussing extent of electronic surveillance that individuals face in
various settings); Kevin Werbach, Sensors and Sensibilities, 28 Cardozo
L. Rev. 2321, 2323–38 (2007) (same).
Nos. 14‐2913 & 15‐1294 17
and for a variety of important ends. Police surveillance
equipment (including both dashboard cameras and body
cameras) has become both cheaper and more effective at a time
when the public interest in police conduct, by virtue of certain
abuses exposed by citizen cell‐phone cameras in addition to
police surveillance equipment, has skyrocketed. See, e.g., Iesha
S. Nunes, Note, “Hands Up, Don’t Shoot”: Police Misconduct and
the Need for Body Cameras, 67 Fla. L. Rev. 1811 (2015).2 Govern‐
ment, members of the public, and detainees share an interest
in monitoring the handling of detainees in order to ensure that
they are being treated appropriately. Cf. Am. Civil Liberties
Union of Ill. v. Alvarez, 679 F.3d 583, 605–07 (7th Cir. 2012)
(finding no privacy interest supporting use of state eavesdrop‐
ping statute to criminalize third‐party audiovisual recording
of police officers performing their duties—including engaging
citizens in non‐confidential conversations—in public places).
Police officers and other law enforcement agents have a
parallel interest in both the appropriate treatment of detainees
(to foster public confidence in law enforcement and to rebut
false allegations of misconduct) and identifying problem
officers and practices where they exist. Officers also have a
significant interest in security that warrants the monitoring of
detainees in their custody, to ensure that detainees are not
harming one another or attempting escape, or that a detainee
2
Events of the last several years in particular may have focused the
public’s attention on police practices resulting in injuries to detainees and
other civilians, but the public interest in such police actions substantially
predated the events at issue in this case. See Nunes, “Hands Up, Don’t
Shoot,” 67 Fla. L. Rev. at 1815‐19 (summarizing incidents over past 25
years).
18 Nos. 14‐2913 & 15‐1294
has not fallen ill, for example. See, e.g., Virginia v. Moore,
553 U.S. 164, 177, 128 S. Ct. 1598, 1607–08 (2008) (describing
safety rationale for permitting police searches incident to
arrest); Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington,
566 U.S. 318, 330–34, 132 S. Ct. 1510, 1518‐20 (2012) (noting
safety and health interests that justify intrusive searches of
detainees upon admission to jail).3 The government stresses
this latter interest in its briefs. We agree with the defendants
that it is somewhat ironic for the government to invoke this
interest, given that it did not use its surveillance equipment to
monitor them in real time during their transport to the ATF
office (which would have enabled agents to detect and address
any safety problems as they arose) and instead only recorded
their conversations for later use. But the material point, in
terms of the defendants’ expectation of privacy, is that the
government has legitimate reasons, wholly consistent with the
public interest, for monitoring individuals it has taken into its
custody and placed into a transport vehicle. Regardless of the
agents’ actual motivations for monitoring the defendants
during transport, these legitimate interests reinforce our
conclusion that society is not prepared to recognize as reason‐
3
The Williams decision posits that the safety concerns of officers transport‐
ing detainees are not comparable to those warranting intrusion upon an
inmate’s privacy in the prison setting. 15 F. Supp. 3d at 829–30. Certainly
there are differences between the two settings, but we think that the
interests warranting close monitoring of detainees are no less compelling
in the transportation context than they are in the jail or prison setting. Two
officers transporting multiple detainees on public roads must deal with
multiple risks and multiple demands on their attention, rendering both
themselves and detainees more vulnerable to harm than they would be in
a secure location with multiple staff members to assist them.
Nos. 14‐2913 & 15‐1294 19
able whatever subjective expectations of privacy the defen‐
dants may have harbored in their conversations within the van.
See Illinois v. Lafayette, 462 U.S. 640, 646–47, 103 S. Ct. 2605,
2609–10 (1983) (conducting inventory search of arrested
person’s belongings is reasonable regardless of particular
officer’s subjective motivations for search).
In sum, because the defendants lacked an objectively
reasonable expectation of privacy when placed into the marked
police van, the interception and recording of their conversa‐
tions did not constitute a search for purposes of their Fourth
Amendment rights or an unauthorized interception for
purposes of Title III. Our conclusion on this score makes it
unnecessary for us to reach the question of whether and when
the defendants’ subjective expectation of privacy within the
van terminated, and renders Webster’s cross‐appeal moot.
One point remains for us to address for the sake of com‐
pleteness, and that is whether there was any problem posed by
the identification questions that agents asked of the defendants
as they entered the van, the answers to which were later used
to identify the speakers in the recorded conversations that took
place within. Because these questions were posed by agents
before the defendants were left alone in the rear compartment
of the van, the defendants cannot have had any reasonable
privacy expectation in their answers. See Katz, 389 U.S. at 361,
88 S. Ct. at 516 (Harlan, J., concurring) (statements that
individual “exposes to the ‘plain view’ of outsiders are not
‘protected’ because no intention to keep them to himself has
been exhibited”). Nor did they have any cognizable privacy
interest in their voices. United States v. Dionisio, 410 U.S. 1,
14–15, 93 S. Ct. 764, 771–72 (1973); United States v. Ceballos, 385
20 Nos. 14‐2913 & 15‐1294
F.3d 1120, 1123 (7th Cir. 2004). Although the defendants had
not yet been given their Miranda warnings when they were
asked these biographical questions, we do not think there was
any Fifth Amendment violation, given that the sorts of ques‐
tions posed (soliciting, e.g., their names, birth dates and/or
ages, and places of residence)—the same sorts of questions that
would be posed in booking any arrested individual—are not
the sort of questions that one would expect to yield incriminat‐
ing information. See United States v. Edwards, 885 F.2d 377,
385–86 (7th Cir. 1989); see also United States v. Westbrook, 125
F.3d 996, 1003 (7th Cir. 1997); United States v. Kane, 726 F.2d
344, 349 (7th Cir. 1984).
III.
Having concluded that the defendants lacked an objectively
reasonable expectation of privacy within the police van, we
REVERSE the district court’s decision to partially suppress the
covertly recorded statements that the defendants made while
conversing in the van. We DISMISS defendant Webster’s cross‐
appeal as moot.