### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 12

‐ 2962

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

J OHN E DWARD S COTT

, 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

.

____________________

A RGUED J ANUARY 17, 2013

— D ECIDED S EPTEMBER 10, 2013

____________________ Before M ANION and T INDER

, Circuit Judges

, and L EE

,

District Judge

. 

L EE

, 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 withNo. 12

‐ 2962 3

Reynolds and affirm the district court’s denial of Scott’s

motion to suppress.

B ACKGROUND

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 andNo. 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.

D ISCUSSION

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, even8 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 theNo. 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 would10 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, 1102No. 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 still12 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.

C ONCLUSION

For these reasons, the district court’s denial of Scott’s

motion to suppress evidence seized from the search of his

house is AFFIRMED.