United States v. Shelton

          OPINION AND ORDER

          JOSEPH S. VAN BOKKELEN UNITED STATES DISTRICT JUDGE

         Defendant Ethel Shelton moves for a mistrial in response to witness testimony suggesting that a government informant conducted an illegal search. While this Court denies Defendant's motion, it cannot help but note the open-ended scope of the informant's evidence hunt on Defendant's work desk. Although the government stayed within the bounds of the legal limits, this may have been more by luck than by design.

         A. Overview of the Case

         In April 2018, this Court held a jury trial for Defendant, a former employee of the Calumet Township Trustee's Office (“CTTO”). (DE 178.) She was charged with engaging in political campaign activities on CTTO time, which amounted to wire fraud. (DE 1.) At the time, she worked for Mary Elgin, former trustee of Calumet Township and a co-defendant who pled guilty.^[1] (DE 236.) During the trial, the government called as witnesses FBI Agent Nathan Holbrook, as well as Stafford Garbutt, the informant and Defendant's co-worker. (DE 179, 180, 184, 189.) Garbutt testified that, at Agent Holbrook's request, he collected documents from within Defendant's office “very early in the morning.” (DE 257 at 210-11.) Agent Holbrook conceded that he instructed Garbutt to collect documents and that Garbutt “was acting as a law enforcement agent” during these document hunts, which were warrantless. (DE 258 at 70, 80- 81.) The documents partly formed the basis for a subsequent search warrant. (DE 234 Ex. F.) During cross-examination, Defendant accused Agent Holbrook of “consciously violating . . . Fourth Amendment Rights, ” which drew an objection. Id. A lengthy bench conference then ensued to discuss the implications of Agent Holbrook's testimony. (DE 258 at 71-80.) Defendant orally moved for a mistrial, but rather than interrupt the trial, this Court set a post-trial briefing schedule on the motion. (DE 205.) This Court then held an evidentiary hearing on the motion, at which neither party chose to present additional evidence. (DE 258.)

         B. Standard of Review

         “Generally, a mistrial is appropriate when an event during trial has a real likelihood of preventing a jury from evaluating the evidence fairly and accurately, so that the defendant has been deprived of a fair trial.” United States v. Collins, 604 F.3d 481, 489 (7th Cir. 2010). “A trial judge has broad discretion in deciding whether, in the context of the entire trial, a defendant's motion for a mistrial should be granted.” United States v. Mealy, 851 F.2d 890, 902 (7th Cir. 1988). Trial judges are often “in the best position to determine whether [an] incident was so serious as to merit a mistrial.” United States v. Liefer, 778 F.2d 1236, 1245 (7th Cir. 1985). The ultimate question is whether “the defendant was deprived of a fair trial.” United States v. Mannie, 509 F.3d 851, 856 (7th Cir. 2007).

         C. Analysis

         Defendant's motion is essentially a belated motion to suppress. The government argues that there were enough kernels of information presented before trial to file a timely a motion to suppress, but the pretrial discovery does not paint as complete a picture as the government suggests. Nevertheless, the government requests that this Court address Defendant's motion on the merits regardless. (DE 248 at 5.) Here, Defendant's motion fails on the merits.

         (1) Defendant Had No Reasonable Expectation of Privacy in Her Office

         The government concedes that Garbutt acted as a government agent. (DE 234 at 11.) Additionally, the government does not allege that any search-warrant exception applies. (Id. at 11 n.6.) Thus, any search, if one occurred, would be unreasonable. The government contends that Defendant had no reasonable expectation of privacy in her office and that therefore Garbutt's document hunts were not searches. This Court agrees.

         The Constitution provides protections from “unreasonable searches and seizures.” U.S. Const. amend. IV. A search occurs when the government “violates a[n] . . . expectation of privacy” that is both subjective-the defendant actually expected privacy-and objective- “society [would] recognize that expectation as reasonable.” Kyllo v. United States, 533 U.S. 27, 33 (2001). The defendant bears the burden of proving a “legitimate expectation of privacy in” the searched premises. Rawlings v. Kentucky, 448 U.S. 98, 104 (1980). Here, even if Defendant subjectively believed her office would remain private, this expectation was unreasonable.

         As a starting point, an expectation regarding one's home tends to be especially reasonable. See Payton v. New York, 445 U.S. 573, 601 (1980) (discussing “the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic”). One's office could also be considered a home for Fourth Amendment purposes. Mancusi, 392 U.S. at 367 (“[T]he word ‘houses,' as it appears in the [Fourth] Amendment, is not to be taken literally, and . . . the protection of the Amendment may extend to commercial premises.”). However, an office is not a fortress of solitude. O'Connor v. Ortega, 480 U.S. 709, 717 (1987) (“An office is seldom a private enclave free from entry by . . . other employees.”).

         Indeed, an office with an open-door policy such that any co-worker may simply waltz in whenever he pleases may not be entitled to any expectation of privacy. Id. at 718. See also United States v. Jenkins, 43 F.3d 447, 460 (7th Cir. 1995) (“[B]ecoming an ‘agent' for purposes of Fourth Amendment analysis does not terminate one's right to engage in conduct which was authorized prior to entering the agency relationship.”) An employer's policy of conducting workplace searches, if made known to the employee, could also render an expectation of privacy unreasonable. Snider v. Pekney, 2010 U.S. Dist. LEXIS 17161 (N.D. Ind. Feb. 25, 2010). Still, the employee might have a reasonable expectation of privacy “in his desk and file cabinets, ” depending on the circumstances. Id.

         Here, several factors extinguish Defendant's reasonable expectation of privacy. First, Garbutt had to enter Defendant's office to sign his time sheets. (DE 258 at 198.) Second, Garbutt passed by her office to visit Elgin's office, which he did regularly. (DE 193.) Third, Garbutt would often wander into Defendant's office. Id. Fourth, Garbutt was often the first to arrive at work. (DE 257 at 168-69.) Even if Defendant did not know this, she herself started work early from time to time, and she knew of the “comp time” system, in which employees would receive benefits for arriving early or staying late. (DE 193.) Defendant was therefore on notice that her co-workers might take advantage of this opportunity by arriving early. Fifth, Elgin had security cameras plastered throughout the offices. Id. As Defendant testified, “Anything that happened in that office [Elgin] could see.” Id. Defendant knew Elgin often reviewed the footage these cameras captured. Id. Sixth, the CTTO had a company policy of conducting workplace searches of “[e]mployees, their possessions, and CTTO-issued [items] . . . at all times while on CTTO premises.” (Tr. Ex. 27 at 64.) Defendant acknowledged receiving an employee handbook that outlined this policy. (Tr. Ex. 55.) Seventh, and most importantly, Defendant left the documents on her desk. (DE 234 ...