Opinion
CAUSE NO. 3:21-CR-55 DRL-MGG
2022-05-18
UNITED STATES of America, Plaintiff, v. Jesse MCNEELEY, Defendant.
John M. Maciejczyk, Geovanny E. Martinez, AUSA, Government Attorneys, U.S. Attorney's Office, South Bend, IN, Kimberly L. Schultz, Government Attorney, U.S. Attorney's Office, Hammond, IN, for Plaintiff.
John M. Maciejczyk, Geovanny E. Martinez, AUSA, Government Attorneys, U.S. Attorney's Office, South Bend, IN, Kimberly L. Schultz, Government Attorney, U.S. Attorney's Office, Hammond, IN, for Plaintiff.
OPINION & ORDER
Damon R. Leichty, Judge
After learning of a shooting and acquiring a search warrant for a dwelling and garage in Michigan City, Indiana, law enforcement discovered a rifle and blood splatter in the garage. The government charged Jesse McNeeley with unlawfully possessing a firearm as a felon. He asks the court to suppress the evidence under the Fourth Amendment. He says the search warrant wasn't constitutionally particular and the search was improper. The court denies the suppression motion.
FACTUAL FINDINGS
The court held an evidentiary hearing over the course of two days. See Fed. R. Crim. P. 12(d); United States v. Coleman, 149 F.3d 674, 677 (7th Cir. 1998). These facts serve as the court's initial findings. Additional findings follow in the course of the court's discussion of the legal arguments.
The evening of December 7, 2020, Jesse McNeeley and a woman went to dinner; and, on the way home, Mr. McNeeley accused her of cheating [Tr1. 68]. He claimed he knew she cheated on him with "Sam" and that he had "Sam" tied up in the trunk of his vehicle [id. 69]. They arrived at Mr. McNeeley's residence, which sat in the back of a large building on State Road 212 in Michigan City, Indiana [id. 25-26, 65, 68; see Figures 1, 2].
The transcript from March 3, 2022 (Tr1.) has been filed [ECF 56]. The transcript from April 27, 2022 (Tr2.) has not yet been filed. The transcripts have been designated Tr1. and Tr2. accordingly.
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Figure 1
Building Front at State Road 212, Michigan City, Indiana
[Ex, I, Image 248_7170]
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Figure 2
Building Front and Southeast Side
[Ex. 11]
A large orange sign reflected the address for this advertised "business center." Although the building also had signage suggesting its use as a hardware store and coffee shop, it wasn't being used as such. Hightec Solar, a solar panel manufacturer, operated out of the building [Tr2. 14]. The building sat in an industrial district on a heavily traveled road [Tr1. 24]. A converted space for an apartment and an adjacent garage door existed on its southeast side—not uncommon to see in Michigan City [Tr1. 24, 67, 73; see Figure 2]. The property had a set of mailboxes, but only two were in use in December 2020—one for the business, and one for Mr. McNeeley [Tr2. 20, 36-37].
The argument between the woman and Mr. McNeeley escalated to an altercation in a garage [id. 68]. Mr. McNeeley knocked her to the ground, hit her on the head, and shot her in the shoulder [id.]. She ran through the garage to the apartment and told another woman (Mr. McNeeley's then-girlfriend) to call 911 [id.]. The girlfriend convinced Mr. McNeeley to stay in the residence while the victim ran out of the apartment and flagged someone driving down the street for help [id.].
That night, Officer Cody Washluske of the Michigan City Police Department responded to a call that a woman who had been shot was standing at the intersection of State Road 212 and Warnke Road in Michigan City, Indiana [id. 4-5]. On arrival, Officer Washluske, with five years of law enforcement experience, noted the woman was distraught with a gunshot wound to her shoulder and abrasion on her hand [id. 4-6]. The victim initially refused to go to the hospital for treatment because she was worried about the location of one of her children [id. 6]. She informed Officer Washluske of the altercation, explaining that her boyfriend shot her while they were in the back of the building, specifically in the garage located next to the apartment [id. 7]. Based on their conversation, Officer Washluske believed there was only one apartment on the premises [id. 18].
Additional officers arrived on the scene because the victim alleged Mr. McNeeley may try to leave [id. 8]. Officer Washluske saw two vehicles leave; officers stopped one [id. 8, 28]. Mr. McNeeley was the driver, and the other child was with him [id. 9, 28]. Officers detained Mr. McNeeley [id. 28]. At this time, Officer Washluske thought an unknown female and possibly other children may be left in the apartment [id. 37].
Back at the building, the victim got into Officer Kelly Williams' squad car to show him and other officers exactly where the incident occurred on the premises [id. 21, 144-45]. She clarified the apartment's location in the back of the building [id. 10, 21, 145; Ex. G]. Officer Williams then took the victim to the police station [Tr1. 148]. The remaining officers secured the scene, canvassed the premises with flashlights, and ensured that nobody went in or out [id. 10, 27, 36]. Officers did not go inside the building as they waited for a search warrant [id. 11].
While keeping the scene secure, officers became aware of another possible victim [id.]. In an interview with Corporal Kay Pliske and Detective Melissa Sopher, the victim reported that she thought there could be a body in a silver Mercedes on the property [id. 26, 51]. Officers on the property checked the passenger area of the silver Mercedes and then called the fire department to open the locked trunk only to discover there was no body [id. 26-27, 52].
Soon after, at the police station, having not yet seen the premises, Detective Sopher drafted a probable cause affidavit and search warrant [id. 68-69]. In the affidavit, Detective Sopher described the premise to be searched as "a single family dwelling, brown in color, with an orange sign out front, and a commonly known address of 1000 State Road 212, Michigan City, Indiana, 46360" [Ex. 10]. The detective explained in her affidavit how the incident occurred between a garage and apartment that were part of a larger building located at this address [Ex. 10]:
[The victim] stated when they got to Jesse[ ] [McNeeley's] house, he ordered
their older son to go inside the house and that she was holding on to their two-year-old son. [The victim] stated they went into the garage and the argument continued. [The victim] stated during the argument Jesse knocked her to the ground, hit her in the back of the head and shot her in the arm. [The victim] stated after she was shot, she ran out of the garage and into the apartment, which is connected to the same building as 1000 State Road 212 and spoke to Jesse's girlfriend—[ ] and asked her to call 911. [The victim] stated [the girlfriend] got Jesse to leave the room and [the victim] ran out of the house and flagged someone down.The search warrant authorized the search of a single family dwelling and garage [id. 71, 132; Ex. 10A]. The detective did not have an apartment number to identify this residence otherwise [id. 71-73].
Detective Sopher based the search warrant on what she knew at the time, including statements made by the victim, Officer Washluske, and Corporal Pliske [id. 13, 19, 25, 65-66, 70, 88-89, 92-93, 148]. Detective Sopher used the victim's description of the incident, including that the altercation occurred in the garage [id. 68, 72]. She also used information from Officer Washluske, including the building's location, the color of the facility, and that there was a sign in front of the building [id. 65-66]. The detective had not been to this location before [id. 73]. Notably, at this time she had no information to differentiate between the apartment, the garage, and the rest of the building, as law enforcement had not yet been inside the building [id. 66-68, 75].
Detective Sopher sent the probable cause affidavit and warrant to the state prosecutor who submitted it to the judge just before midnight. The signed search warrant included "and garage" where the proposed version had identified only a single family dwelling [cf. Exs. 10, 10A]. The judge granted the application for a search warrant for both the single family dwelling and garage [Tr1. 75, 102].
Once obtained, Detective Sopher arrived on the scene to execute the search warrant [id. 75]. The detective led the search that night [id. 79, 86, 116, 136-37]. She first took pictures of the premises, noting, among other things, the overhead garage door, the storm door (which she came to know as the apartment door), and the garbage cans near the apartment door [id. 77-78; see Figures 3, 4].
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Figure 3
Garage Door
[Ex. 5]
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Figure 4
Apartment Door
[Ex. I, Images 248_7211 and 248_7219]
Though the building was in a commercial area, with a large orange sign out front showing the address, Detective Sopher distinguished the residential qualities on the southeast side of the premises, including the residential door, storm door, keypad, garbage cans, and surveillance cameras facing the door; and the fact that the residence was within a gated area [id. 66-67, 84].
The officers and detective entered the building by way of the garage door, as the residential door was locked [id. 18-19, 75]. When they entered the garage, they could see a variety of property, including storage containers, pallets, and other equipment [id. 115; see also Figure 5]. They briefly entered a separate large area of the building (a machine shop) and conducted a protective sweep to make sure nobody else was in the building [Tr1. 32-33, 37-38, 52, 61-62].
The court was shown a video of someone walking through an interior space, but no evidence was adduced about who it was or what space it was or why it wasn't otherwise part of a protective sweep [Ex. E; Tr1. 121; Tr2. 66-67, 73, 82].
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Figure 5
Open Garage Door
[Ex. I, Image 248_7221]
Photographs from that night showed tire tracks entering the garage where space remained to park a vehicle [id.], though one officer testified that it "wasn't like a car garage, in a sense" [Tr1. 19].
Law enforcement officers limited their three-hour search to where the victim said the incident occurred and where the search warrant permitted: the dwelling and the garage [id. 19, 38, 121-22]. The apartment and the garage were connected by a doorway, and officers recovered evidence from both areas, including projectiles from the shooting, a Bushmaster XM15-E2S rifle, and blood splatter [id. 19, 38, 134, 136]. On June 9, 2021, a grand jury indicted Mr. McNeeley on a charge of unlawfully possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1).
DISCUSSION
Pre-revolutionary writs of assistance permitted roving searches for contraband, and such general warrants allowed searches without any particularized or oath-based evidence of an offense. Colonial Americans reviled the practice precisely because it placed "the liberty of every man in the hands of every petty officer." Boyd v. United States, 116 U.S. 616, 625, 6 S.Ct. 524, 29 L.Ed. 746 (1886); see also Maryland v. King, 569 U.S. 435, 466-67, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (Scalia, J., dissenting); Indianapolis v. Edmond, 531 U.S. 32, 37, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000).
The Fourth Amendment to the United States Constitution stamped out suspicionless searches and preserved the right of the people "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend IV; see Caniglia v. Strom, — U.S. —, 141 S. Ct. 1596, 1599, 209 L.Ed.2d 604 (2021); United States v. Ochoa-Lopez, 31 F.4th 1024, 1025-27 (7th Cir. 2022). As the text suggests, the Fourth Amendment's touchstone is reasonableness. Lange v. California, — U.S. —, 141 S. Ct. 2011, 2017, 210 L.Ed.2d 486 (2021).
The Fourth Amendment reasonably protects against the government's intrusion into a person's house, papers, or effects, or of his very person. Florida v. Jardines, 569 U.S. 1, 5, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013); Katz v. United States, 389 U.S. 347, 350-51, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). When law enforcement endeavors to discover evidence of criminal wrongdoing, "reasonableness generally requires the obtaining of a judicial warrant." Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). A warrant ensures that the inferences to support a search are "drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Riley v. California, 573 U.S. 373, 382, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014).
For a warrant to issue constitutionally, it must be based on probable cause and supported by oath, and it must "particularly describ[e] the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. This particularity requirement limits "the authorization to search to the specific areas and things for which there is probable cause to search," and in doing so "ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit." Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987); accord United States v. Jones, 54 F.3d 1285, 1289-90 (7th Cir. 1995). This requirement is satisfied if "the description is such that the officer with a search warrant can, with reasonable effort ascertain and identify the place intended." United States v. McMillian, 786 F.3d 630, 639 (7th Cir. 2015) (quoting Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 69 L.Ed. 757 (1925)).
A search warrant might include "minor technical errors or omissions . . . so long as there is no danger that the officers might inadvertently search the wrong place." Id. at 640 (citation omitted); see, e.g., United States v. Kelly, 772 F.3d 1072, 1081-83 (7th Cir. 2014); United States v. Johnson, 26 F.3d 669, 694 (7th Cir. 1994). In assessing a warrant's validity, the court considers "whether the warrant and affidavit provided a detailed description of the premises and whether the officers executing the warrant knew the correct target location or could have searched the wrong residence." McMillian, 786 F.3d at 640. The law recognizes "the need to allow some latitude for honest mistakes that are made by officers in the dangerous and difficult process of making arrests and executing search warrants." Garrison, 480 U.S. at 87, 107 S.Ct. 1013. That said, the Fourth Amendment "categorically prohibits," a warrant that doesn't describe the place to be searched with particularity. Id. at 84, 107 S.Ct. 1013.
When a "search or seizure was effected pursuant to a warrant, the defendant bears the burden of proving its illegality; if the police acted without a warrant, the prosecution bears the burden of establishing legality." United States v. Longmire, 761 F.2d 411, 417 (7th Cir. 1985).
A. Search Warrant's Particularity.
Mr. McNeeley contends that the warrant was flawed by not describing the place to be searched with particularity. The warrant authorized law enforcement to search a "single family dwelling and garage that is brown in color with an orange sign out front and with a commonly known address of 1000 State Road 212, Michigan City, Indiana 46360" [Ex. 10A]. The warrant was particular in describing the places to be searched.
The warrant's validity is assessed based on "information available to [the officers] at the time they acted," Garrison, 480 U.S. at 85, 107 S.Ct. 1013, and the information largely came from the victim. The victim told Officer Washluske that the shooting occurred in the garage located next to the apartment in the back of a building. He could see the building where they stood. The victim also told Officer Kelly Williams, and five other officers on scene, including Officer Washluske [Tr1. 21, 145], the precise garage where the shooting occurred—all seen on officer cam video [Ex. G; see also Ex. 11; Figure 6]. One officer asked the victim for a "ballpark" of where inside the shooting occurred to guide the search, and the victim responded while standing outside the garage and pointing toward the garage door, "Directly on the other side of the garage door" [Ex. G].
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Figure 6
[Ex. G—White Garage Door Identified by the Victim to Officers]
She also identified the apartment next to the garage [Tr1. 15]. Officers identified the "obvious" apartment with its single light and single door as well [id. 13-14]. The officers knew then precisely the apartment and garage of an otherwise larger building that needed to be searched.
Officers later observed an apartment number (8) painted the same color as the building that would have otherwise been impossible to see in the dark from their vantage point [Ex. N].
Officer Washluske relayed all his information to the detective bureau [id. 13, 19, 25, 65-66, 92-93, 148]. Detective Sopher also received information from Detective Pliske, who initially shared that the shooting occurred in an apartment at the rear of the building at 1000 State Road 212 only then to learn from other officers that it occurred in the garage [id. 88-89]. The victim separately told Detective Sopher that the incident took place at Mr. McNeeley's house or apartment and the connected garage. The victim never mentioned that Mr. McNeeley's residence was part of a multi-purpose building or warehouse, though the officers on scene could reasonably surmise that the building had a commercial use in addition to the residence on its back side, albeit not specific to this apartment or garage.
The warrant's validity also is assessed from the "information that the officers disclosed, or had a duty to discover and to disclose, to the issuing [magistrate judge]." Garrison, 480 U.S. at 85, 107 S.Ct. 1013; accord United States v. Hinton, 219 F.2d 324, 326 (7th Cir. 1955) ("validity of the warrant is dependent on the facts shown in the affidavit before the issuing authority"). Detective Sopher used the information shared with the detective bureau to apply for the warrant. In the proposed warrant and accompanying affidavit, she described the residence as a "single family dwelling" because that terminology referred to where someone lives. A dwelling undoubtedly captures a place of residence, see Dwelling, Oxford English Dictionary (2022), so it was an accurate and precise word for the place where Mr. McNeeley resided, despite any debate about whether his residence was technically a house or an apartment. A dwelling reasonably captures both. No one disputes he lived in this part of the building.
The outside of the building may have suggested a commercial use in part; but the interior layout of the building was not evident when officers had not been inside. They knew the events of the night occurred in a garage adjacent to an apartment on the back of a larger building. And these precise facts were shared with the judge. Quite tellingly, the probable cause affidavit said as much: "[The victim] stated after she was shot, she ran out of the garage and into the apartment, which is connected to the same building as 1000 State Road 212" [Ex. 10 (emphasis added)]. In short, the application said that this garage and apartment were part of a larger building at a specific address. In doing so it was accurate and reasonably precise.
In recognizing the application's precision, the search warrant proved not just particular but even more particular than what the defendant would advocate for it to have said. Law enforcement was not asking for carte blanche authority to search this entire building at 1000 State Road 212 but confining its application to just the apartment and adjacent garage of a larger building. Of course, the building had other areas too as it turns out, hence Mr. McNeeley's point that the warrant should have described the building as multi-unit; but that doesn't render this warrant invalid. See Kelly, 772 F.3d at 1082 ("The fact that the building's layout differed from what the officers were able to discern without having been inside is insufficient to render the warrant invalid.").
Mr. McNeeley cites a handful of cases holding that a warrant is void when it permits a search of an entire building when cause is shown for searching only one apartment. See, e.g., Jacobs v. City of Chi., 215 F.3d 758, 767-70 (7th Cir. 2000); Hinton, 219 F.2d at 326; United States v. Simpson, 944 F. Supp. 1396, 1406-07 (S.D. Ind. 1996). But that isn't the scenario presented to the court today. Today's scenario is the inverse—whether in fact the search warrant has proven particular, indeed quite specific, in permitting law enforcement to search only one apartment and one adjoining garage rather than the entire building.
For instance, in Simpson, 944 F. Supp. at 1406-07, no one contested the search warrant's validity to search one apartment in a multi-occupancy building when probable cause supported it; instead, the court suppressed evidence found in a different apartment because the warrant purported to permit a search of the entire building. Likewise, the problem with the warrant in Hinton, 219 F.2d at 326, wasn't that it limited the search to a particular residence, but that it allowed law enforcement to search all four apartments in a building. "Thus, a warrant [that] describes an entire building when cause is shown for searching only one apartment is void." Id. This isn't the type of warrant at issue here.
Mr. McNeeley advocates that the warrant should have said "the apartment in the rear of the commercial building located at 1000 State Road 212" [Tr2. 83]—but forgoing "commercial building" omitted nothing material, and subbing "dwelling" for "apartment" was inconsequential. He also argues for using the words "room" or "part of a business" adjacent to the apartment rather than "garage," but these words prove less particular based on this building. By using garage, the warrant was necessarily more particular under this case's facts.
No matter these conclusions already, the search caused no harm to the policy that underlies the Fourth Amendment's particularity requirement. Its purpose "is to make sure that a search pursuant to a warrant does not invade the property and privacy of the individual whose premises are to be searched, and property seized, beyond what is necessary to achieve a valid law enforcement purpose as determined by a judicial officer." United States v. Stefonek, 179 F.3d 1030, 1033 (7th Cir. 1999). This purpose was preserved here. Even if the warrant were revised to Mr. McNeeley's liking, the search would have been identical in scope, and the exact same evidence would have been seized. See id. at 1034. Exclusion of the evidence isn't proper today. Id. at 1036; see also Guzman v. City of Chi., 565 F.3d 393, 398 (7th Cir. 2009) ("Exclusion is not a necessary consequence of a Fourth Amendment violation, and the benefits of exclusion must outweigh the costs.").
To that point, the warrant added details beyond "a single family dwelling and garage." The warrant told officers that the dwelling and garage was "brown in color with an orange sign out front" and provided the building's common address. These details were accurate and further particularized the warrant to the building where this dwelling and garage existed. These details helped ensure that the officers could reasonably identify the place to be searched. See McMillian, 786 F.3d at 639.
The address was correct [Ex. 10A]. An orange sign sat out front of the building [Ex. I, Image 248_7170]. Though Officer Washluske testified the residence was kind of an orange color [Tr1. 22], and Mr. McNeeley's daughter also said the exterior was orange [Tr2. 20], Detective Sopher said it looked tan, but it was dark outside so difficult to differentiate these colors [Tr1. 116-17]. The photos also show a mix—orange-ish paint (that could be viewed as tan or brown in the dark) with nearby brown siding [Ex. I, Images 248_7211 and 248_7219]. The description "brown in color" wasn't so off base to make a reasonable officer doubt whether she was at the right location, particularly with the warrant's other particular details. See McMillian, 786 F.3d at 640.
Kelly, 772 F.3d at 1075-76, provides the right guidance. There a detective obtained a warrant to search the "upper apartment" of a "multiple family residence" at a specific address based on drug activity. When officers executed the search warrant and entered the building's rear door, they discovered two staircases—one leading to an upper interior door, and the other leading down to the lower interior door. Id. at 1076. They breached the upper door and found the suspect. In that moment of entry, officers realized that the suspect lived in a two-story unit divided rear and front, not upper and lower. Id. The defendant moved to suppress the evidence because "upper apartment" wasn't particular in the warrant and in fact didn't exist.
The court of appeals affirmed the motion's denial. Id. at 1082. The mislabeling of "upper" for "rear" unit presented "no risk that the officers executing the warrant would search some other house." Id. (quoting Johnson, 26 F.3d at 694). This was so because the detective knew that the target residence stood behind the rear door of the building. See id.; see also Garrison, 480 U.S. at 85, 107 S.Ct. 1013 (factual mistake did not invalidate warrant "that undoubtedly would have been valid if it had reflected a completely accurate understanding of the building's floor plan").
So too here. There was zero risk that officers executing the warrant would search some other dwelling and garage. There was only one apartment. Indeed, one officer testified the apartment door was "obvious" based on the single light, single door, and address number next to the door [Tr1. 13]. There was only one garage adjacent to the apartment. There was only one white garage door to which the victim pointed. The officers who executed the search warrant had been told by the victim precisely which garage and apartment. There thus wasn't any mystery created by the search warrant's description of a "single family dwelling and garage" at 1000 State Road 212. See Kelly, 772 F.3d at 1082. Though "single family dwelling and garage" didn't capture the character of the entire structure located at 1000 State Road 212, it accurately described the particular places to be searched. Merely adding that this building was a "commercial" one may have made the application and warrant more descriptive, but not more particular in avoiding any risk of Fourth Amendment concern.
Although it seems there may have been another garage on the north side of the building [Ex. I, Image 248_7186; Tr1. 111-12], Mr. McNeeley never argued that this other garage door's existence made the warrant ambiguous. See United States v. Kirkland, 567 F.3d 316, 320-21 (7th Cir. 2009). Even so, nothing on this record shows that the officers were at risk of searching the wrong garage. See McMillian, 786 F.3d at 640.
Mr. McNeeley also argues that the word "garage" in the search warrant proved ambiguous because the "garage" clearly was part of the business adjacent to the apartment, not a residential garage. He says this wasn't a garage because it didn't have anything to do with storing personal vehicles but instead looked more like a machine shop with parts stacked on pallets. The victim plainly called it a garage. It sat behind a rather traditional-looking paneled garage door rather than a commercially-sized garage door. Though Mr. McNeeley is right that one definition of "garage" is a building intended for the storage of motor vehicles, see Garage, Oxford English Dictionary (2022), a garage can have commercial uses and store a great many things, see id. None of the officers saw the inside of this garage before Detective Sopher applied for the warrant, so the word "garage" was reasonable based on the information available to law enforcement at the time. See Garrison, 480 U.S. at 85, 107 S.Ct. 1013; Kelly, 772 F.3d at 1082. The open garage didn't alert officers that they were in the wrong location [Tr1. 122, 129; Tr2. 53; see also Figure 5].
This warrant permitted law enforcement to search only one apartment and one garage rather than the entire building, doing so based on a probable cause determination specific to these areas. The warrant was particular within the Fourth Amendment's meaning. The court thus must deny the suppression motion.
It follows then that the court need not consider whether the single unit exception applies to permit a search of an entire building, though at times argued by the parties. See United States v. Butler, 71 F.3d 243, 249 (7th Cir. 1995); Simpson, 944 F. Supp. at 1409.
B. Law Enforcement's Good Faith.
Notwithstanding this warrant's particularity, law enforcement officers acted with objective good faith in executing it. See United States v. Leon, 468 U.S. 897, 920-21, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). They waited until they had the signed warrant to enter the dwelling and garage. Id. at 922, 104 S.Ct. 3405 ("warrant issued by a magistrate normally suffices to establish that an officer has acted in good faith conducting the search") (quotations and citation omitted). Officers limited their search to the garage and apartment [Tr1. 84].
In addition, officers relied on their knowledge from the victim who explained exactly where the incident occurred, including the precise garage. "[O]fficers executing a search warrant can rely on what they know and see independent of the documents to make sure they search the correct premises, at least [when] the circumstances show there is no reasonable chance that the officers will search the wrong location." Taylor v. Hughes, 26 F.4th 419, 431 (7th Cir. 2022) (quoting Muhammad v. Pearson, 900 F.3d 898, 905 (7th Cir. 2018)). For instance, in Muhammad, 900 F.3d at 902-03, an officer corroborated many times over that "Apartment 1A" was the correct unit though the search warrant erroneously referred only to "Apartment 1." The good faith exception thus applied. Officers this night had this same corroboration from the victim via a pre-search tour of the outside—the very person who was familiar with the premises and present in the garage during the incident.
The officers never thought they were in the wrong location or had cause to think so when they opened the garage door because the victim told them that the incident happened directly on the other side of this southeast garage door. They wouldn't have had any reason to question whether the warrant was ambiguous by saying a "garage," not after the victim's explanation, the obvious garage door in front of this space, and the door connecting this space to the apartment—matching perfectly her description. Cf. Jones v. Wilhelm, 425 F.3d 455, 464-65 (7th Cir. 2005) (good faith exception did not apply when officer knew before executing the warrant that it was ambiguous because the description fit two separate apartments). Mr. McNeeley construes the concept of garage too narrowly.
Mr. McNeeley opposes the good faith exception by saying Detective Sopher was reckless in what she presented to the judge and omitted the fact that this was a commercial building. Not so, particularly when the application plainly told the issuing judge that this apartment and garage were part of a larger building at the address. Even were that fact of a larger building, the fact that an orange sign sat out front, and the fact that it was common for commercial buildings to be converted into residences in Michigan City not enough to alert the judge of the nature of this building, omitting "commercial" from the building's description in the warrant application wasn't a false or reckless statement. There's been no evidence presented that Detective Sopher made false statements in her probable cause affidavit. See Leon, 468 U.S. at 923, 104 S.Ct. 3405. For these reasons, it was objectively reasonable for the officers to rely on the warrant, thereby making suppression of the evidence inappropriate.
C. Law Enforcement's Pre-Warrant Activity and Execution of Search Warrant.
At the hearing, Mr. McNeeley amended his motion to argue that officers unlawfully entered the outdoor property—searching around with their flashlights and looking into vehicles—before they obtained the search warrant. He also suggests, albeit without sound evidence, that the officers strayed to search other areas in the building beyond the dwelling and garage when executing the warrant.
At the outset, Mr. McNeeley hasn't established a legitimate expectation of privacy in these other areas of the premises—other areas of the building or the cars parked outdoors. This isn't a matter of "standing" in the true sense but instead a question of whether Mr. McNeeley "had a legitimate expectation of privacy in the premises he was using and therefore could claim the protection of the Fourth Amendment with respect to a governmental invasion of those premises[.]" Rakas v. Illinois, 439 U.S. 128, 138-39, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); see also United States v. Sawyer, 929 F.3d 497, 499 (7th Cir. 2019). After all, the Fourth Amendment's protections remain tethered to its text, which protects only a citizen's own "person[ ], houses, papers, and effects." U.S. Const. amend. IV.
The "rights assured by the Fourth Amendment are personal rights, [which] . . . may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure." Simmons v. United States, 390 U.S. 377, 389, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). "[L]egitimate presence on the premises of the place searched, standing alone, is not enough to accord a reasonable expectation of privacy, because it creates too broad a gauge for measurement of Fourth Amendment rights." Byrd v. United States, — U.S. —, 138 S. Ct. 1518, 1527, 200 L.Ed.2d 805 (2018) (quotations and citation omitted). The legitimation of privacy expectations must come from outside the Fourth Amendment, "either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society." Id. (quoting Rakas, 439 U.S. at 144 n.12, 99 S.Ct. 421). One of the main property rights that can guide this analysis is the right to exclude others from the property. See id.
In answering this question today, the court considers "(1) whether [Mr. McNeeley], by his conduct, [ ] exhibited an actual, subjective expectation of privacy and (2) whether his expectation of privacy is one that society is prepared to recognize as reasonable." Sawyer, 929 F.3d at 499. He bears the burden of showing he had a legitimate expectation of privacy in these other areas. Id.
Mr. McNeeley hasn't met his burden. To the contrary, the evidence showed that Hightec Solar operated out of the other parts of the building [Tr2. 14, 41]. It was rather replete. No evidence was adduced that Mr. McNeeley had rights to solar panels, machinery, tools, or other personalty in other areas of the building or that he had rights, property or otherwise, to these other building spaces. No evidence showed he worked for Hightec Solar or had permission to use other areas in the building. There was no evidence that he had an interest in any vehicles on the property or other areas of the building; no evidence that he could exclude others from these vehicles or other areas of property; and no evidence that he exhibited an actual subjective expectation of privacy in these other areas or vehicles outdoors. Nothing showed that any search of the outdoor premises or outdoor vehicles affected in any way his privacy interests. See Lange, 141 S. Ct. at 2033 ("If the [property] is not his[,] the suspect has no privacy interest to protect.") (Roberts, C.J., concurring); Stefonek, 179 F.3d at 1036 ("litigant may not complain about a violation of rights that does not harm the interest (whether in privacy or in a fair trial) that the rights protect").
A bit curiously, the government argued at one point in briefing and at the hearing that Mr. McNeeley had dominion and control over other areas of the premises. When the court asked whether there was any evidence of his dominion and control that was then communicated to Detective Sopher, the government merely said the evidence was that the victim ran from one place to the other, and that he had access to one place to the other. But that evidence pertained only to the garage and apartment—not any other areas of the building, the parking lot, or any other parked cars on the property. The court has assumed his privacy interest in the garage and recognized it in the apartment.
Mr. McNeeley argues the "fruit of the poisonous tree" doctrine. It doesn't apply here. To the extent officers conducted any search of a vehicle outdoors or other areas of the building beyond just a permissible protective sweep—and that remains decidedly in doubt on this record—they found no evidence implicating Mr. McNeeley of a crime. No evidence thus led ultimately to the garage and apartment such that the firearm, blood splatters, or other evidence in the garage or apartment could be said to have originated from some other ill-gotten gain. See Wong Sun v. United States, 371 U.S. 471, 485-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (evidence is generally considered "fruit of the poisonous tree" when "it would not have come to light but for the illegal actions of the police"). Upon receiving the warrant, officers limited their search to the garage and dwelling based on a particular search warrant [Tr1. 84; Ex. 10A].
CONCLUSION
The warrant described the places to be searched with particularity. The victim described the shooting incident as having taken place in the apartment and garage; the warrant only authorized the search of the dwelling and garage; and, in executing the warrant, officers limited their search to the dwelling and garage—all consistent with the Fourth Amendment. Accordingly, the court DENIES the suppression motion [ECF 26, 39].
SO ORDERED.