United States v. Saul Melero
United States v. Saul Melero
Opinion
Members of a Drug Enforcement Agency task force lawfully found drugs in a traffic stop and seized several garage openers and keys they also found in the car. An agent took the garage openers and drove around downtown Chicago pushing their buttons to look for a suspected stash house. He found the right building when *212 the door of a shared garage opened. The agent then used a seized key fob and mailbox key to enter the building's locked lobby and pinpoint the target condominium. At the agent's request, another agent sought and obtained the arrestee's consent to search the target condo. The search turned up extensive evidence of drug trafficking. As we explain below, the use of the garage door opener was close to the edge but did not violate the Fourth Amendment, at least where it opened a garage shared by many residents of the building. At all other stages of the investigation, the agents also complied with the Fourth Amendment. We affirm the district court's denial of the defendants' motion to suppress the evidence of drug trafficking found inside the condominium.
I. Factual and Procedural Background
Unless indicated otherwise, we adopt the district court's version of the facts from its initial order denying the motion to suppress.
United States v. Correa
("
Correa I
"), No. 11 CR 0750,
The investigation that led the DEA to defendants Jason Correa and Saul Melero began when a DEA confidential source obtained $500,000 in cash from two unidentified men. DEA agents tailed the men to a house a few miles away and put the house under surveillance. Eight days later, on October 27, 2011, agents followed one of the men (who drove the same car he had driven to meet the confidential source eight days earlier) to a grocery store in Chicago. With DEA task force members watching the parking lot and the grocery, the man parked his car next to a silver Jeep and then went into the grocery. The man met in a coffee shop inside the grocery with a man later identified as Correa. Six minutes later, the two men walked to the unidentified man's car. He retrieved a multicolored bag and gave it to Correa, who put it in the silver Jeep. Correa then drove away in the Jeep, tailed by task force officers in two unmarked cars. DEA Special Agent Thomas Asselborn radioed the officers and instructed them to stop Correa's car if they saw a traffic violation.
It did not take long. 1 The officer in the lead car, Mike Giorgetti, saw Correa turn left without signaling at 18th Street and Canal. After following Correa east across the Chicago River, Officer Giorgetti activated his lights and siren and pulled Correa over near the intersection of 18th Street and Wabash. Wearing a bulletproof vest marked "Police" on both sides, Officer Giorgetti approached the driver's side of Correa's car. The other task force officer, Steve Hollister, approached the passenger side. Officer Giorgetti asked Correa for his license and registration and asked Correa if he had anything illegal in the car. After Correa said no, Officer Giorgetti asked if he could search the car. Correa said "go ahead." Officer Hollister witnessed the exchange.
Officer Giorgetti found the multi-colored bag that the unidentified man had given to Correa moments earlier. In a bag inside that bag, Giorgetti found what he thought was cocaine. After finding the cocaine, the officers also found a bag on the front passenger seat containing four garage door openers, three sets of keys, and four cell phones. The officers then arrested *213 Correa. After the officers arrested Correa, but before they took him to the DEA office and gave him Miranda warnings, Agent Asselborn arrived on the scene and took the garage door openers and keys.
Agent Asselborn drove straight to 1717 South Prairie-the address where the unidentified men had taken the confidential source's car and left with $500,000 in cash eight days earlier. That was a dead end: none of the garage door openers worked at that address. Agent Asselborn spent the next ten to fifteen minutes testing the openers on various nearby buildings. He tested them on "a bunch of townhouses with garages attached to them right in that area." When that did not work, he "kind of did a grid system," testing the openers on multiple buildings starting west of South Michigan Avenue and working his way east to an alley just east of Michigan Avenue. Eventually, the garage door opened for a multi-story condominium building at 1819 South Michigan Avenue. Thinking that someone else might have opened the door, Asselborn backed up down the alley, waited for the door to go down automatically, and then activated the opener again. The door opened. Asselborn used the opener "a third time just to be sure," but he did not enter the garage.
The agents went to 1819 South Michigan Avenue. (They never did figure out what the other garage door openers opened.) Using a key fob from the same bag that had contained the garage door openers, agents entered the locked lobby of the building. They then tested mailbox keys from the same key ring on various mailboxes and found a match: Unit 702. Agent Asselborn contacted a supervisor who was back at the DEA office with Correa, to obtain Correa's consent for a search of Unit 702. The supervisor told Correa that the keys from the car matched Unit 702, asked if there was "anything illegal" in the condominium, and then asked if Correa "minded if we check 1819 S. Michigan, Unit 702." Correa said "go ahead and search it," but he refused to sign a consent form.
Inside the condominium, the agents found a handgun and more than a kilogram each of cocaine and heroin, as well as quantities of marijuana, Ecstasy, and methamphetamine. They also found equipment for weighing and packaging drugs, and personal documents of Saul Melero's. Correa I , at *2. After a neighbor told agents that Saul Melero was one of the condominium's residents and was standing outside on Michigan Avenue, agents arrested him on the spot.
Correa and Melero were both charged with drug and firearm offenses. They moved to suppress all of the evidence, asserting numerous violations of their Fourth Amendment rights. After an evidentiary hearing, the district court denied the motion.
Correa I
,
Correa pleaded guilty to charges of possession with intent to distribute various drugs, but he preserved his right to appeal the denial of the motion to suppress. The district court sentenced him to the mandatory minimum of ten years in prison. Melero went to trial, and a jury convicted him of possessing the drugs found in the condominium and for maintaining the condominium as a stash house. The district court sentenced Melero to eleven years in prison. Correa and Melero both appeal. The central issue is the denial of their motion to suppress, though it raises many subsidiary issues.
*214 II. Analysis
On appeal from a district court's ruling on a motion to suppress, we review legal conclusions
de novo
and factual findings for clear error. See
United States v. Contreras
,
Our Fourth Amendment analysis follows the chronology of the investigative chain. We begin with the traffic stop and go on to the search of the car, the seizure of the garage door openers and keys, and the agent's use of those openers and keys to identify the right condominium, and we end with the search of the condominium and Melero's arrest. We find that the officers did not violate the Fourth Amendment at any step along the way.
A. Traffic Stop
The officers lawfully stopped Correa for a traffic violation, but our path to that conclusion is different from the district court's. Rather than decide whether the officers had sufficient grounds to stop Correa based on suspected drug activity, we find that Correa's traffic violation (turning without signaling) gave the officers probable cause for the traffic stop. That probable cause satisfies the Fourth Amendment's reasonableness requirement even if the officers were more interested in suspected drug trafficking than in dangerous driving on the streets of Chicago. See
United States v. Taylor
,
Correa argues that the stop was improper because he did not turn without signaling, because Officer Giorgetti's testimony that he saw the traffic violation is uncorroborated, and because, even if Officer Giorgetti saw the violation, he was outside of his jurisdiction and had no legal authority for the stop. We find no reversible error.
The conflict between Correa's testimony that he did signal and Officer Giorgetti's testimony that he did not presents an ordinary credibility issue. Judge Dow found that Officer Giorgetti's testimony was more credible than Correa's.
Correa I
,
The district court did not decide the traffic-law issues but instead held that the agents reasonably suspected a drug transaction.
*215 Id. at *3-4. We find that the stop was justified based on the traffic violation, so we do not decide whether the officers' suspicions of drug trafficking were enough to justify the stop.
Officer Giorgetti was a Willow Springs police officer acting as part of a DEA task force. See
id.
at *3. Under Illinois law, he could conduct a traffic stop outside his home municipality based on his observation of a turn made illegally without signaling. See
People v. Gutt
,
B. Search of the Car
Next, the officers lawfully searched Correa's car because he gave them consent to do so. Because the original stop was lawful, Correa's consent to the search of the car was not tainted. Cf.
United States v. Cellitti
,
The search did not exceed the scope of Correa's consent. "The scope of consent is 'limited by the breadth of actual consent, and whether the search remained within the boundaries of the consent is a question of fact to be determined from the totality of all the circumstances.' "
United States v. Long
,
The bag containing the cocaine, inside the multicolored bag, was within the scope of Correa's consent. The district court found that Correa did not limit the scope of his consent,
Correa I
,
C. Seizure of Garage Openers and Keys
The officers also lawfully seized the garage door openers and keys. Correa concedes that the officers "could look in the bag to see if it contained anything illegal," but he argues that he did not consent to seizure of those items. This argument fails because Correa did not have to consent to the seizure. After the officers found the drugs, they reasonably inferred that the multiple garage door openers, sets of keys, and cell phones could well be evidence of criminal activity.
Evidence is not limited to contraband, of course. See, e.g.,
United States v. Johnson
,
D. Use of Garage Door Openers, Fob, and Keys
Using the garage door opener to find the condominium building was a search, but it was reasonable. The Fourth Amendment provides, in full:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The text does not expressly require warrants, but the prohibition against unreasonable searches and seizures has long been read "to require warrants in some circumstances as essential to the 'reasonableness' of particularly intrusive searches, such as those into dwellings."
United States v. Limares
,
Warrants, probable cause, reasonable suspicion, and other analytical labels are all ways to assess whether a search is reasonable. The Fourth Amendment essentially asks two questions: first, has there been a search or a seizure, and second, was it reasonable? See
Carpenter v. United States
, --- U.S. ----,
1. Was There a Search?
The Supreme Court uses two analytical approaches to decide whether a search has occurred. One is the property-based or trespass approach. E.g.,
Florida v. Jardines
,
Agent Asselborn's use of the garage door openers to find the condominium building was not a search of the garage at 1819 South Michigan Avenue, under either a trespass or privacy analysis. The agent did not trespass against these defendants'
*218
property interests. The trespass analysis can be fact-intensive, see, e.g.,
Sweeney
,
The garage, though, is only half of the analysis: the openers are the other half. Agent Asselborn searched them by pushing the buttons, which interrogated the code generated by the opener with each push of the button. Absent a trespass,
Jones
suggests that we should focus on privacy. See
The conclusion that this was a search of the openers fits with common sense. Agent Asselborn first took the openers at least three blocks away from the scene of Correa's arrest to test them on the garage of the building from which the unidentified men had emerged with the cash eight days earlier. When the openers did not work there, he tried them on "a bunch of townhouses with garages attached to them right in that area." And when that did not work, he "did a grid system." We believe that seeing this kind of approach-driving a car up and down streets and alleys testing multiple garage door openers, but backing up after one garage door opened, waiting for it to close, and then opening it again-would strike the layperson as an obvious search and "inspire most of us to-well, call the police."
Jardines
,
2. Was the Search Reasonable?
The next question is whether the search was reasonable. The answer is yes. "There is no dispute that '[w]arrantless searches are presumptively unreasonable under the Fourth Amendment.' "
Thurman
,
By repeatedly pressing the openers' buttons, Agent Asselborn was, in essence, executing a set of searches in the wake of Correa's arrest. Agent Asselborn was taking chances. We conclude that the Fourth Amendment does not forbid this technique to identify the building or door associated with the opener, at least where the search discloses no further information. The logic of
Concepcion
suggests that Agent Asselborn could have shown the openers to landlords and asked them whether any of the openers matched the landlords' buildings. See
Agent Asselborn used the openers to learn an address-the kind of information officers may lawfully obtain as part of the booking process. And in that context, even
Miranda
protections do not apply, at least where the address is collected for record-keeping purposes.
Pennsylvania v. Muniz
,
At oral argument, counsel for Correa and Melero argued that garage door openers, unlike an arrestee's residential address provided at booking, do not necessarily indicate residence. But address books and wallets can provide officers with information beyond an arrestee's address. Courts have long held that officers may search wallets and address books found on arrestees without obtaining separate warrants for those searches, even if those searches are not conducted at the scene of an arrest. E.g.,
United States v. Rodriguez
,
*220
Correa argues, though, that
Riley
resolves this case because its holding prohibiting warrantless searches of cell phones seized incident to arrest should be read more broadly to apply to searches of "non-contraband electronic items that contain and/or can lead to privately held information in the home or about the home."
Riley
should not be read that broadly. Its holding was based on the Court's recognition that "Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee's person."
As
Riley
reiterated, when " 'privacy-related concerns are weighty enough' a 'search may require a warrant, notwithstanding the diminished expectations of privacy of the arrestee.' "
Like an officer searching an arrestee's wallet or address book, Agent Asselborn searched the garage door openers to generate investigative leads. Riley does not condemn that investigative step. In Riley , the Court warned that using an arrestee's cell phone to search files stored remotely "would be like finding a key in a suspect's pocket and arguing that it allowed law enforcement to unlock and search a house." Id. at 2491. Nothing comparable happened here. Agent Asselborn did not search or even enter the garage. We recognize that law enforcement creativity may call for judicial vigilance. See Baude & Stern, 129 Harv. L. Rev. at 1861 ("When police are intentionally pushing the limits of their power is precisely when we can ask them to check whether they are pushing too far."). But Agent Asselborn's searches of the garage door openers were good-or at least lucky-police work, not Fourth Amendment violations.
Officers are, of course, allowed and expected to investigate to build probable cause for an arrest. See
United States v. Prewitt
,
We do not address here what would happen if the agents had used the openers to open a private garage in which a resident had a reasonable expectation of privacy and then used what they saw to pursue further inquiries. (Imagine that the garage door goes up and officers see the stolen car they were told to look for. Cf.
Collins v. Virginia
, --- U.S. ----,
E. Accessing the Lobby, Testing the Mailbox Key, and Searching the Condominium
Under the reasoning of
Concepcion
, using the key fob to enter the locked building lobby and testing the mailbox key were searches.
The search was reasonable and so did not violate the Fourth Amendment. For the reasons discussed regarding the search of the garage door opener, using the fob to access the lobby and testing the mailbox key without a warrant were reasonable searches. The officers needed to investigate to obtain more information-either to approach Correa and seek consent or to seek a warrant.
In
United States v. Bain
, the First Circuit criticized our "reasoning [in
Concepcion
] that the information gathered by the search could have been easily obtained otherwise."
The district court found that Correa's consent was valid because he had apparent authority to give it and because it was voluntary.
Correa I
,
*222
Correa also had apparent authority to consent to the search. When the officers asked him for consent, they knew he had possessed the garage door opener, the lobby key fob, and the mailbox key. Melero argues that merely possessing keys should not be enough to indicate apparent authority because otherwise, giving keys to "dogwalkers, dry cleaners, maids, or delivery persons" would give apparent authority. That argument is correct but incomplete. The apparent authority analysis depends on context, not just the object possessed. See
United States v. King
,
We also agree with the district court that Correa's consent was voluntary. Determining whether consent was voluntary depends on the totality of the circumstances, and several factors may be relevant. See
Cellitti
,
On appeal, Correa argues that his consent was involuntary because he was handcuffed, the officer who gave him
Miranda
warnings was not the same agent who requested consent, the agents did not advise him that he could refuse, and he refused to sign a consent form. The first argument conflicts with Correa's testimony at the suppression hearing where he testified that he was
not
handcuffed. The other arguments do not indicate an involuntary consent. See
United States v. Valencia
,
Melero's challenge to his arrest also fails. After the agents found the drug evidence and documents relating to Melero in Unit 702, the neighbor's identification of *223 Melero gave them probable cause to arrest him.
The judgments are
AFFIRMED.
I join the judgment and the opinion of the court. This is a very difficult case and certainly presents a situation near the outer limits of what the Fourth Amendment tolerates. Of special concern to me is the officers' entry into the locked foyer of the building. Given our decisions in
United States v. Concepcion
,
As set forth in Concepcion and, to a somewhat lesser extent in Sweeney , the general rule of the last several decades has been that common areas in multi-dwelling buildings are not within the protection of the Fourth Amendment. Both our case law and the case law of at least four of our sister circuits reflect this approach. 1 We need to be vigilant that our articulation and application of that default rule does not become so rigid and so automatic that we overlook situations where the realities are otherwise.
The Supreme Court's precedent does not require that we ignore the social and economic realities of contemporary urban America. In
United States v. Dunn
,
From time to time, we have expressed a mistrust of adopting ironclad rules about common spaces. In
Reardon v. Wroan
,
It is more difficult today to determine whether, on any given set of facts, individuals may claim Fourth Amendment protection beyond the boundaries of an individual living unit. Concerned about personal security and driven by economic necessity, individuals now engage in a wide variety of property arrangements to ensure that they have increased access to, and control over, the area outside the door to their individual condominiums or cooperative apartments. These contemporary changes necessitate constant vigilance that we take the time to appreciate fully the specific facts of such arrangements. Today, young adults live in quasi-communal arrangements to cope with the high cost of living in major cities; more affluent individuals live in condominium arrangements under increasingly strict agreed-upon rules; residents prescreen newcomers and occasionally the residential group is preformed; and senior citizens live in retirement communities
*225
where meals are taken in common and congregate living is expected as a condition for membership. In these situations, individuals have definite expectations, grounded in property rights or custom, about who is welcome in various parts of the establishment.
Cf.
Moore v. City of East Cleveland
,
The Supreme Court has said that case-by-case adjudication of search and seizure cases will permit the courts "to unify precedent and will come closer to providing law enforcement officers with a defined set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement."
Ornelas v. United States
,
Because Mr. Correa has failed to carry his burden of establishing that he had a cognizable property interest or an expectation of privacy in the common lobby, the garage door or the remote device, his Fourth Amendment claim must fail. Moreover, as I noted at the outset, the officers can justify their opening of the locked lobby door on circuit precedent. Accordingly, with respect to those actions, the good faith exception to the warrant requirement bars the application of the exclusionary rule.
For these reasons, I join the judgment and the opinion of the court.
When he was Attorney General, the future Justice Jackson said, in explaining the importance of a prosecutor's fairness and impartiality: "We know that no local police force can strictly enforce the traffic laws, or it would arrest half the driving population on any given morning." R. Jackson,
The Federal Prosecutor, Address Delivered at the Second Annual Conference of United States Attorneys
, April 1, 1940, quoted in
Morrison v. Olson
,
These cases offer lessons for anyone who might be asked to consent to a search of a vehicle or home. Such searches can be very intrusive and even destructive.
Jimeno
"ensures that many motorists will wind up 'consenting' to a far broader search than they might have imagined."
Ohio v. Robinette
,
United States v. Hawkins
,
See
,
e.g.
,
Seay v. United States
, Nos. 15-3367 & 14-0614,
See
,
e.g.
,
State v. Luhm
,
Notably, in
People v. Burns
,
The Supreme Court recently has emphasized that both property concepts and privacy expectations can determine the scope of the Fourth Amendment.
See
,
e.g.
,
Florida v. Jardines
,
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Jason CORREA and Saul Melero, Defendants-Appellants.
- Cited By
- 18 cases
- Status
- Published