1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA )

) No. 11 CR 0750

v. )

) Judge Robert M. Dow, Jr.

JASON CORREA and )

SAUL MELERO )

MEMORANDUM OPINION AND ORDER

Before the Court is Defendants Jason Correa’s and Saul Melero’s joint renewed motion 

to reconsider [149] the Court’s October 17, 2013 and March 14, 2014 Opinions and Orders [110, 

137] denying Defendants’ joint motion to suppress evidence [74, 75]. For the reasons stated 

below, Defendants’ motion [149] is denied.

I. Background

The Court extensively discussed the facts of this case in its previous opinions [110, 137]. 

Most relevant here are the following facts: In October 2011, DEA agents arrested Correa and 

searched his car, seizing four garage door openers and three sets of keys inside. They drove to

1717 South Prairie, a building that they believed to be associated with the suspected drug 

activity, and attempted to activate the garage there using Correa’s garage door openers. When 

the garage failed to open, they tested the openers on nearby garages and eventually found a 

match. Using one of the key fobs, they entered the lobby of that building. They tested a key 

from Correa’s car on the residents’ mailboxes and discovered that it matched the mailbox of unit 

702. Believing that unit to be Correa’s home, the agents sought and received Correa’s consent to 

search it. Inside the apartment, they discovered drugs, weapons, and documentation belonging to 

Melero, another resident of the unit, whom they subsequently arrested. 

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Defendants moved to suppress the evidence from unit 702. The Court ruled that the 

garage-testing, the entry into the lobby using the fob, and the mailbox-testing were permissible 

under United States v. Concepcion, 942 F.2d 1170 (7th Cir. 1991), and United States v. FloresLopez, 670 F.3d 803 (7th Cir. 2012). In their renewed motion to reconsider, Defendants argue 

that neither precedent applies following the Supreme Court’s decision in Riley v. California, 134 

S. Ct. 2473 (2014). They contend that Riley effectively overrules Flores-Lopez in its entirety and 

limits Concepcion to searches involving non-electronic devices. They further argue that Riley

affirmatively required the agents to obtain a warrant before using the garage openers or key fobs.

In response, the Government argues that Riley’s holding is immaterial to this motion. 

According to the Government, even if Riley rendered the search unconstitutional, the 

exclusionary remedy would be unavailable under Davis v. United States, 131 S. Ct. 2419, 2434

(2011). Davis creates a good faith exception, providing that “when the police conduct a search 

in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not 

apply.” Davis, 131 S. Ct. at 2434. Accord United States v. Taylor, No. 14-1981, slip op. at 4 

(7th Cir. Jan. 14, 2015) (describing Davis as holding “that the exclusionary rule does not apply 

‘when the police conduct a search in objectively reasonable reliance on binding appellate 

precedent’”). The Government argues that the agents conducted themselves in objectively 

reasonable reliance on Concepcion, which was binding Seventh Circuit precedent at the time of 

the law enforcement activity at issue here, and that this case therefore falls squarely within 

Davis’s good faith exception.1 In reply, Defendants concede that if Davis applies, the 

exclusionary remedy is unavailable, but they argue that the garage-testing in particular falls 

 

1 The government’s response brief and Defendants’ reply brief focus exclusively on Concepcion because 

the Seventh Circuit had not decided Flores-Lopez at the time of the events at issue.

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outside the good faith exception. At issue here, therefore, is whether the agents tested the 

garages in objectively reasonable reliance on binding appellate precedent. 

II. Analysis

The Fourth Amendment protects “the right of the people to be secure in their persons, 

houses, papers and effects, against unreasonable searches and seizures.” A search occurs when 

the government invades a person’s reasonable expectation of privacy, United States v. Jacobsen, 

466 U.S. 109, 113 (1984), or physically intrudes into a constitutionally protected area in order to 

obtain information, United States v. Jones, 132 S. Ct. 945, 951 (2012). To compel respect for the 

Fourth Amendment’s guaranty, the Supreme Court created the exclusionary rule. Elkins v. 

United States, 364 U.S. 206, 217 (1960). The rule’s sole purpose is to deter police misconduct. 

Davis, 131 S. Ct. 2426. It is not to remedy a personal right or redress a constitutional injury. Id. 

Exclusion is a “last resort” because it frequently “suppress[es] the truth and set[s] the 

criminal loose in the community without punishment.” Davis, 131 S. Ct. at 2427 (citation 

omitted). The Supreme Court therefore permits exclusion only when the benefit of deterrence 

outweighs these costs. Id. (citation omitted). The benefits of deterrence vary with the “flagrancy 

of the police misconduct at issue.” United States v. Leon, 468 U.S. 897, 104 (1984). When the 

police act with “an objectively ‘reasonable good-faith belief’” that their conduct is constitutional,

exclusion is unwarranted because the costs of exclusion outweigh the deterrence benefits. 

Davis, 131 S. Ct. at 2427 (quoting Leon, 468 U.S. at 909 (finding exclusion unavailable when the 

police conducted a search in objectively reasonable reliance on a subsequently invalidated search 

warrant)). When the police act with “deliberate, reckless, or grossly negligent conduct, or in 

some circumstances recurring or systemic negligence,” exclusion is warranted because its

deterrent value outweighs the costs. Herring v. United States, 555 U.S. 135, 144 (2009) (finding 

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exclusion unwarranted where the police arrested the defendant pursuant to an arrest warrant that 

was subsequently recalled due to isolated, negligent recordkeeping); see Davis, 131 S. Ct. at 

2427. 

Davis extended Leon’s and Herring’s good faith exception to scenarios involving 

retroactive changes in law. See United States v. Martin, 712 F.3d 1080, 1082 (7th Cir. 2013). 

Davis addressed a scenario that began with a routine traffic stop and the defendant’s subsequent 

arrest. While Davis was handcuffed in the back of the patrol car, the police searched his car and 

found a gun. At the time, the Eleventh Circuit, like many other circuits, had interpreted New 

York v. Belton, 453 U.S. 454 (1981), to create a bright-line rule authorizing car searches incident 

to the arrest of the car’s occupant. More specifically, the Eleventh Circuit had interpreted Belton

to authorize a car search incident to arrest where the defendant was “quickly pulled from the 

vehicle, handcuffed, laid on the ground, and placed under arrest.” United States v. Gonzalez, 71 

F.3d 819, 822 (11th Cir. 1996). 

While Davis’s appeal was pending, the Supreme Court decided Arizona v. Gant, 556 U.S. 

332 (2009), which held that “police may search a vehicle incident to a recent occupant's arrest 

only if the arrestee is within reaching distance of the passenger compartment at the time of the 

search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Gant, 

556 U.S. at 351. Applied retroactively to Davis’s search, Gant rendered Davis’s search 

unconstitutional. The question before the Supreme Court was whether this constitutional injury 

entitled Davis to the exclusionary remedy. The Court answered no, finding that “searches 

conducted in objectively reasonable reliance on binding appellate precedent are not subject to the 

exclusionary rule.” Davis, 131 S. Ct. at 2423-24. In those cases, “suppression would do nothing 

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to deter police misconduct,” and “it would come at a high cost to both the truth and the public 

safety.” Id. at 2423. 

In her concurring opinion, Justice Sotomayor demarcated the limits of Davis, explaining 

that it applied only where “binding appellate precedent specifically authorize[d] a particular 

police practice” because, as the majority had explained, “application of the exclusionary rule 

cannot reasonably be expected to yield appreciable deterrence” in such circumstances. Davis, 

131 S. Ct. at 2435 (Sotomayor, J., concurring) (quoting the majority at 2429). Davis, however,

did not present “the markedly different question whether the exclusionary rule applies when the 

law governing the constitutionality of a particular search is unsettled.” Id. 

“If, as the Government argues, all rulings resolving unsettled Fourth Amendment 

questions should be nonretroactive, then, in close cases, law enforcement officials 

would have little incentive to err on the side of constitutional behavior. Official 

awareness of the dubious constitutionality of a practice would be counterbalanced 

by official certainty that, so long as the Fourth Amendment law in the area 

remained unsettled, evidence obtained through the questionable practice would be 

excluded only in the one case definitively resolving the unsettled question.” 

Id. (quoting United States v. Johnson, 457 U.S. 537, 561 (1982) (footnote omitted)). The 

Seventh Circuit adopted Justice Sotomayor’s limiting principle in United States v. Martin, 712 

F.3d 1080, 1082 (7th Cir. 2013). 

At issue here is whether the garage-testing falls within Davis’s good faith exception, 

given the holding in Concepcion. Although the Court discussed Concepcion in detail in its 

previous order [110], further discussion is necessary to determine whether the case specifically 

authorized the garage-testing or whether the law governing the constitutionality of the garagetesting was unsettled when it took place. In Concepcion, DEA agents arrested the defendant and 

seized his keys. Concepcion, 942 F.2d at 1171. After seeing the name “Concepcion” on the 

mailbox of a nearby apartment building, they conducted two searches relevant here. First, they 

used the defendant’s keys to open the door to the common area of the apartment building. Id. 

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Second, they used his keys to open his apartment door. Id. Having identified the correct 

apartment, the agents then sought and obtained consent from Concepcion to search the unit, 

where they found evidence that Concepcion then attempted to suppress. Id. 

On appeal, the questions before the Seventh Circuit were whether (i) use of the 

defendant’s key to unlock the common area and (ii) use of his key to unlock his apartment were 

constitutional. The Seventh Circuit held that the first step was not a search, citing the wellestablished rule that a person has no reasonable expectation of privacy in a common area.2

 

Concepcion, 942 F.2d at 1172 (citing, among others, United States v. Acevedo, 627 F.2d 68, 69 

n.1 (7th Cir. 1980); United States v. Boden, 854 F.2d 983 (7th Cir. 1988)). The Court of Appeals 

next held that the second step, by contrast, was a search because a keyhole contains private 

information inaccessible to strangers: the identity of the person who may access the space 

beyond. Id. The Seventh Circuit then concluded that the search was reasonable, even in the 

absence of probable cause or a warrant, for two reasons. First, the invasion of privacy was 

minimal. Insertion of the key into the keyhole only revealed one fact: who could access the 

space beyond. Id. at 1173. Second, the police easily could have discovered the same 

information through alternative means involving neither probable cause nor a warrant.

They could have looked him up in the telephone book or conducted a computer 

search of drivers’ licenses. If they did not find him (or if they found too many 

persons of the same name), they could have visited the landlord and asked who 

lived in apartment 1C. Instead of asking the landlord who lived there, they could 

have shown the landlord the key in their possession and asked the landlord to 

compare it with the key issued to the tenant. So too the agents could have 

followed Concepcion around to learn his residence (as they did; the key just 

confirmed what they thought they knew). The information the agents obtained 

from putting the key in the lock thus was no secret.

 

2 The Supreme Court had yet to hear Jones, which held that a search includes not only an invasion into a 

reasonable expectation of privacy but also a physical intrusion into a constitutionally protected area to 

obtain information. Jones, 132 S. Ct. at 951. Accordingly, the Seventh Circuit’s analysis focused only on 

the invasion into a reasonable expectation of privacy.

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Id. 1173. 

According to Defendants, the garage-testing falls outside Davis’s good faith exception for 

several reasons. First, they argue that Concepcion was not “binding appellate precedent” that 

“specifically authorized” the garage-testing within the meaning of Davis. The Davis court found 

that “binding appellate precedent” “specifically authorized” the search at issue there because the 

Eleventh Circuit had applied Belton’s bright-line rule to approve a factually identical search in 

United States v. Gonzalez, 71 F.3d 819 (11th Cir. 1996). Defendants argue that Concepcion, in 

contrast, adopted a balancing test, finding that the need for probable cause or a warrant increases 

with the invasiveness of a search. They suggest that a balancing test, by its nature, creates

unsettled law because it is fact-sensitive. They also argue that Concepcion, specifically, creates 

unsettled law because it failed to identify exactly when an invasion is minimal enough to 

dispense with the need for probable cause or a warrant; it placed the search before it on one side 

of the scale without identifying the precise tipping point.

Concepcion may indeed create a sliding scale, and it may not identify the tipping point. 

But the Court need not know the precise tipping point to determine that the garage-testing fell 

comfortably within the scope of police conduct approved in Concepcion. Assuming that the 

garage was common to all the tenants—which Defendants do not appear to contest—then 

Concepcion clearly provides that the garage-testing was not a search at all because there is no 

reasonable expectation of privacy in the common areas of a residential building. Concepcion, 

942 F.2d at 1172 (“We think the district court on solid ground in holding that a tenant has no 

reasonable expectation of privacy in the common areas of an apartment building”) (citing, among 

others, Acevedo, 627 F.2d at 69 n.1; Boden, 854 F.2d 983). And even if the garage had belonged 

to only to the residents unit 702—which Defendants do not suggest—the use of Correa’s garage 

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door opener to open his garage and identify his building still would be a search specifically 

authorized by Concepcion. If the police may test a person’s key on various apartments to 

identify his particular apartment, then, a fortiori, they may use his garage door opener to test 

various garages to identify his building. The garage-testing here revealed even less private 

information than the keyhole search in Concepcion; it identified the building of which 

Defendants were one of many tenants, whereas the keyhole search in Concepcion revealed the 

defendant’s particular unit within a building. As in Concepcion, the Government could have 

discovered the same information through alternative means involving neither probable cause nor 

a warrant, like following Defendants home. 

Defendants disagree, arguing that the garage-testing was more invasive than the keyhole 

search in Concepcion because it revealed significantly more information, or at least more 

valuable information. In Concepcion, the police had already identified the building where 

Defendant lived; they had just arrested him in front of it and spotted his name on the mailbox

there. Defendants argue that the keyhole search consequently revealed little new information; it 

only identified his apartment within an already-known building. Defendants argue that prior to 

the garage-testing, by contrast, the agents here had yet to identify Defendants’ building. In fact, 

Defendants note that the agents incorrectly suspected that the garage door opener matched the 

building at 1717 South Prairie. Thus, Defendants contend, the garage-testing provided the agents

with more valuable information in that, on a more basic level, it identified Defendants’ building. 

Defendants misconstrue Concepcion. Concepcion did not rely on what the keyhole 

search revealed relative to what the police already knew; rather, it relied on what the search 

revealed relative to what the police could have known through independent means involving 

neither probable cause nor a warrant. Concepcion, 942 F.2d at 1173. As in Concepcion, the 

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agents here could have learned the same information by following Defendants home or asking 

neighbors where they lived. Under Concepcion, their decision to use lawfully-obtained garage 

door openers instead does not render their conduct unconstitutional. 

Moreover, even if Concepcion did not specifically authorize the garage-testing, United 

States v. Knotts, 460 U.S. 276 (1983) did. In Knotts, the police used a beeper to track a 

container’s movements through public streets without a warrant. The Supreme Court found that 

there was no search because a “person travelling in an automobile on public thoroughfares has 

no reasonable expectation of privacy in his movements from one place to another”; when the 

defendant “travelled over the public streets he voluntarily conveyed to anyone who wanted to 

look the fact that he was travelling over particular roads in a particular direction, the fact of 

whatever stops he made, and the fact of his final destination when he exited from public roads 

onto private property.” Knotts, 460 U.S. at 281-82. The Supreme Court further reasoned that 

“[n]othing in the Fourth Amendment prohibited the police from augmenting the sensory faculties 

bestowed upon them at birth with such enhancement as science and technology afforded them in 

this case.” Id. at 282. Here, the garage-testing similarly identified a fact observable from public 

streets; the police could have learned where Defendants lived simply by watching them enter and 

exit their building. Defendants had no reasonable expectation of privacy in this fact because they

voluntarily conveyed it to the public on a daily basis. Accordingly, Supreme Court precedent, if 

not Seventh Circuit precedent, specifically authorized the garage-testing.

Finally, Defendants argue that the Government fails to carry its burden of establishing 

good faith. Defendants cite no case law for their assumption that the Government bears this 

burden. Although the Supreme Court did not explicitly address the issue in Davis, it did 

characterize the core inquiry as whether the government acted in “objectively” reasonable 

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reliance on binding appellate precedent. Davis, 131 S. Ct. at 2423. Davis extends Leon, and 

Leon provides that courts are to “eschew inquiries into the subjective beliefs of law enforcement 

officers” because “‘sending state and federal courts on an expedition into the minds of police 

officers would produce a grave and fruitless misallocation of judicial resources.’” Leon, 468 

U.S. at 923 n.23 (citing Massachusetts v. Painten, 389 U.S. 560, 565 (1968) (White, J., 

dissenting)). In Herring, the Court reiterated that the “pertinent analysis of deterrence and 

culpability is objective, not an inquiry into the subjective awareness of arresting officers.” 

Herring, 555 U.S. at 145 (internal quotation marks and citations omitted). In other words, the 

Supreme Court has confined the good-faith inquiry to the “objectively ascertainable question 

whether a reasonably well trained officer would have known that the search was illegal in light 

of all of the circumstances.” Id. (quoting Leon, 468 U.S. at 922, n. 23) (internal quotation marks 

omitted). The same rationale applies in the context of Davis, and here, in light of Concepcion,

the answer to that question is “no.” Accordingly, the Court denies Defendant’s motion.

3

III. Conclusion

For the reasons stated above, Defendants’ renewed motion to reconsider [149] is denied. 

Dated: January 21, 2015 ______________________________

Robert M. Dow, Jr.

United States District Judge

 

3 As noted in the Government’s response brief [154, at 4], the Government has represented that it will not use at trial 

any evidence obtained from searches of Defendants’ cell phones incident to arrest. Based on those representations, 

the Court agrees that any issue relating to those searches is moot.

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