United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
S. VAN BOKKELEN UNITED STATES DISTRICT JUDGE
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.
Overview of the Case
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. (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.)
Standard of Review
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).
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.
Defendant Had No Reasonable Expectation of Privacy in Her
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.
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
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.”).
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.
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 ...