United States v. Villegas, Ricardo ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2678
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RICARDO VILLEGAS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04 CR 272—J. P. Stadtmueller, Judge.
____________
ARGUED APRIL 2, 2007—DECIDED JULY 27, 2007
____________
Before RIPPLE, ROVNER and WOOD, Circuit Judges.
RIPPLE, Circuit Judge. Ricardo Villegas was indicted on
one count of illegal re-entry into the United States after
having been deported previously on account of two
aggravated felony convictions, see 8 U.S.C. § 1326(b)(2), and
one count of intentional possession of marijuana, see 21
U.S.C. § 844. Mr. Villegas moved to suppress evidence of
his identity as the product of an unlawful arrest and
detention. A hearing was held before a magistrate judge
who recommended denial of Mr. Villegas’ motion. When
Mr. Villegas objected to the magistrate judge’s recom-
mendation, the district court reviewed Mr. Villegas’ motion
2 No. 05-2678
de novo at a combined hearing on that motion and bench
trial. The district court denied the motion and found Mr.
Villegas guilty on both counts. Mr. Villegas now appeals
the district court’s denial of his motion to suppress. For
the reasons set forth in this opinion, we believe that the
district court correctly determined that Mr. Villegas’ arrest
did not violate the Fourth Amendment and therefore
committed no error in admitting the evidence. Accord-
ingly, we affirm the judgment of the district court.
I
BACKGROUND
A.
Officers Thomas Obergon and Michael Lutz were both
assigned to the Milwaukee Police Department’s (“MPD”)
Gang Squad and knew Mr. Villegas and Ephraim Munoz
to be members of the Mexican Posse. They also knew that
Munoz was wanted in connection with a homicide. In
addition, as part of his regular investigation of gang
members, Officer Obergon had learned from the United
States Department of Homeland Security (“DHS”) that Mr.
Villegas had been deported previously on account of his
status as an aggravated felon. Officer Obergon also had run
Mr. Villegas’ name through the National Crime Informa-
tion Center (“NCIC”), and had received confirmation of
Officer Obergon’s information. The NCIC report also noted
that Mr. Villegas was wanted by the Bureau of Immigra-
tion and Customs Enforcement (“ICE”) through an appre-
hension request to local law enforcement.
On August 20, 2004, Officers Obergon and Lutz received
a call from an off-duty MPD officer, informing them that
No. 05-2678 3
Munoz and Mr. Villegas had been seen drinking beer
outside of a building at 4955/4957 South 14th Street. That
building was a two-story duplex owned by Mr. Villegas’
sister, Maria Ventura. One unit of the duplex was situated
on the first floor; another unit occupied the second floor.
Mr. Villegas and his sister lived in the first floor unit.
The second floor unit was occupied by May and John
Franklin. The Franklins had lived in that unit for twenty-
three years and were unrelated to Ventura and Mr.
Villegas. May Franklin ran a small business from her home,
selling dolls, crafts, men’s clothing and other assorted
items. She advertised the business by a sign in front of the
duplex, which listed a phone number and invited prospec-
tive customers to call for an appointment.
The duplex had two entrances. These entrances were
adjacent to one another on the southeast corner of the
building: one on the eastern corner of the building’s
southern exposure and one on the southern corner of the
building’s eastern exposure. Each entrance had a solid
wood inner door and an outer screen door. The entrances
led into a small common hallway that provided access to
the first floor unit where Mr. Villegas and his sister lived,
a staircase leading to the Franklins’ second floor unit and
a staircase leading down to a basement. Each unit was
closed to the common hallway.
When Officers Obergon and Lutz learned that Munoz
and Mr. Villegas had been seen outside the duplex, they,
along with other MPD officers, proceeded to the area and
assembled at a location near the duplex. At some point,
Officer Obergon told Officer Lutz that Mr. Villegas was a
previously deported aggravated felon and that ICE had
issued an apprehension request. Officer Obergon then left
the assembly point in an unmarked police car to confirm
4 No. 05-2678
that Munoz and Mr. Villegas were indeed outside
4955/4957 South 14th Street. When Officer Obergon passed
the address, he saw Munoz and Mr. Villegas outside the
home drinking beer. He recognized both men on sight
from his prior investigations. Officer Obergon notified the
other MPD officers that Munoz and Mr. Villegas were
outside the duplex and, in order to avoid detection,
proceeded down the street to park his vehicle.
When Officer Lutz and the other MPD officers reached
the duplex, neither Munoz nor Mr. Villegas was outside.
The officers surrounded the building, and Officer Lutz took
up a position near one of the entrances. When Officer Lutz
arrived at the entrance, the inner doors of both entrances
were open and the screen doors, while closed, were
unlocked. Officer Lutz heard another officer shout that
somebody had tried to exit the building through a window,
but had reentered the building. Officer Lutz then entered
the common hallway.
As Officer Lutz entered the common hallway, Mr.
Villegas exited the first floor unit into the common hall-
way. Officer Lutz recognized Mr. Villegas on sight based
on a picture the officer had seen of Mr. Villegas earlier that
day. Officer Lutz identified himself as a police officer,
addressed Mr. Villegas by name and told Mr. Villegas that
he was under arrest. While outside the first floor unit and
upon hearing Officer Lutz, Mr. Villegas dropped a small
clear bag whose contents, upon visual inspection, Officer
Lutz suspected to be marijuana. Officer Lutz again told
Mr. Villegas that he was under arrest and reached for the
defendant’s arm. Mr. Villegas resisted, shoving Officer
Lutz into a wall or the doorway to the unit, and attempted
to reenter the first floor unit. Officer Lutz called for assis-
tance and was joined by a second MPD officer. Mr. Villegas
No. 05-2678 5
continued to resist arrest and the three men, Mr. Villegas,
Officer Lutz and the second MPD officer, fell into the first
floor unit. At some point in the struggle, Mr. Villegas
wrestled free of Officer Lutz and kicked him in his
midsection. When the officers finally were able to place Mr.
Villegas in handcuffs, he continued to resist the officers,
spitting blood and mucus at them, some of which landed
on Officer Lutz’s arm.
After the arrest, Mr. Villegas was taken to the Milwaukee
County jail. His booking in the Milwaukee County jail
caused a notice to be sent to ICE Special Agent Ronald
Rickey. About a month earlier, Agent Rickey had received
information that Mr. Villegas had reentered the United
States and might be in the Wisconsin area. Upon receiving
this information, Agent Rickey had ordered Mr. Villegas’
alien registration file, or “A file,” which included a finger-
print card and a picture of Mr. Villegas. Agent Rickey
then matched the fingerprints in the A file to fingerprints
taken by the MPD after a prior arrest of Mr. Villegas.
As a result of the notice received following Mr. Villegas’
August 20, 2004 arrest, Agent Rickey went to the Milwau-
kee County jail on August 23, 2004 to interview Mr.
Villegas. Upon his arrival, Agent Rickey recognized Mr.
Villegas from the photograph in his A file. Although Mr.
Villegas had been booked under the name Douglas Enrique
Villegas, one of Mr. Villegas’ known aliases, he responded
to Agent Rickey when the agent addressed him as Ricardo.
Agent Rickey then read Mr. Villegas his Miranda rights,
which Mr. Villegas acknowledged. Mr. Villegas declined
the presence of counsel. Agent Rickey then proceeded to
interview Mr. Villegas about his background. The answers
that he provided were consistent with the information in
his A file. The interview lasted about fifteen minutes and
6 No. 05-2678
ended when Mr. Villegas stated that he did not wish to
answer any further questions.
B.
Mr. Villegas was charged in a two-count indictment. The
first count charged him with illegal reentry into the United
States in violation of 8 U.S.C. § 1326(b)(2);1 the second
1
8 U.S.C. § 1326 provides, in pertinent part:
(a) In general
Subject to subsection (b) of this section, any alien who—
(1) has been denied admission, excluded, deported,
or removed or has departed the United States
while an order of exclusion, deportation, or re-
moval is outstanding, and thereafter
(2) enters, attempts to enter, or is at any time found
in, the United States, unless (A) prior to his
reembarkation at a place outside the United States
or his application for admission from foreign
contiguous territory, the Attorney General has
expressly consented to such alien’s reapplying for
admission; or (B) with respect to an alien previ-
ously denied admission and removed, unless
such alien shall establish that he was not required
to obtain such advance consent under this chapter
or any prior Act,
shall be fined under title 18, or imprisoned not more than 2
years, or both.
(b) Criminal penalties for reentry of certain removed aliens
Notwithstanding subsection (a) of this section, in the case of
any alien described in such subsection—
(continued...)
No. 05-2678 7
count charged him with the knowing and intentional
possession of marijuana in violation of 21 U.S.C. § 844. The
latter charge was based on the marijuana found in the bag
dropped by Mr. Villegas at the time of his arrest.
Mr. Villegas moved to suppress, as the fruits of an
unlawful seizure, both the statements about his identity
that he had made to Agent Rickey after his arrest and the
marijuana that had been found at the time of his arrest. He
contended that his Fourth Amendment right, made ap-
plicable to the states by the Fourteenth Amendment, to be
free from unreasonable searches and seizures had been
violated when Officer Lutz entered the common hallway of
the duplex without a search warrant. The district court
referred the motion to a magistrate judge who recom-
mended that the motion be denied because Officer Lutz’s
entry into the duplex fell within the exigent circumstances
exception to the Fourth Amendment’s warrant require-
ment.
Mr. Villegas filed an objection to the magistrate judge’s
recommendation. The district court then held a joint
hearing at which it conducted both a de novo hearing on
Mr. Villegas’ suppression motion and a bench trial. At the
conclusion of this proceeding, the district court denied Mr.
Villegas’ motion to suppress. The court concluded that,
because Mr. Villegas had no legitimate expectation of
1
(...continued)
...
(2) whose removal was subsequent to a conviction
for commission of an aggravated felony, such alien
shall be fined under such Title, imprisoned not
more than 20 years, or both[.]
8 No. 05-2678
privacy in the common hallway, Officer Lutz’s entrance
into the common hallway without a warrant had not
violated Mr. Villegas’ Fourth Amendment rights. The
district court further noted that it did not believe that,
under INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), the
Fourth Amendment’s exclusionary rule would require
release of Mr. Villegas after his identity had been estab-
lished by fingerprints or other records. The district court
then found Mr. Villegas guilty on both counts of the
indictment.2
Mr. Villegas now appeals the decision of the district court
denying his motion to suppress his statements to Agent
Rickey as the fruit of an unlawful seizure.
II
DISCUSSION
In reviewing the district court’s decision with respect to
a motion to suppress, we review the district court’s find-
ings of fact for clear error and its legal determinations de
novo. United States v. Yang, 478 F.3d 832, 835 (7th Cir. 2007).
Mr. Villegas contends that Officer Lutz’s entry into the
common area of the duplex without a warrant violated the
Fourth Amendment’s prohibition against warrantless
searches and seizures. He submits that, but for the unlaw-
ful entry and subsequent arrest, the Government would
have had no evidence of his identity and that, without that
evidence, it would not have been possible to convict him
2
The Government subsequently moved to set aside Mr.
Villegas’ conviction on Count II of the indictment. The district
court granted the motion.
No. 05-2678 9
for unlawful reentry into the United States. The Govern-
ment offers in reply three separate grounds that, in its
view, support the decision of the district court. First, the
Government contends that Mr. Villegas had no legitimate
expectation of privacy in the common area of the duplex;
therefore, Officer Lutz’s warrantless entry into that area
did not violate the Fourth Amendment. Next, the Govern-
ment submits that, even if Officer Lutz’s entry into the
common area of the duplex violated Mr. Villegas’ Fourth
Amendment rights, the arrest and subsequent detention of
Mr. Villegas were not unlawful because the arrest was
supported by probable cause. Because there was probable
cause for the arrest, the Government continues, any
statements made by Mr. Villegas outside of the duplex in
the course of his detention do not fall within the Fourth
Amendment’s exclusionary rule. Lastly, the Government
submits that, even if Officer Lutz violated Mr. Villegas’
Fourth Amendment rights and there was no probable cause
to support his arrest and continued detention, evidence
pertaining to Mr. Villegas’ identity does not fall within the
Fourth Amendment’s exclusionary rule.
We shall address the first two of the Government’s
contentions. However, because we conclude that, under the
circumstances, Officer Lutz’s warrantless entry into the
duplex’s common areas did not violate Mr. Villegas’ Fourth
Amendment rights, and that, in any event, Mr. Villegas’
continued detention was lawful because it was supported
by probable cause, we need not address the Government’s
contention that identity evidence does not fall within the
strictures of the Fourth Amendment’s exclusionary rule.
10 No. 05-2678
A. Officer Lutz’s Warrantless Entry into the Duplex
The Fourth Amendment protects against warrantless
intrusions by the government into areas in which that
individual holds a reasonable expectation of privacy. Yang,
478 F.3d at 835. The district court determined that, because
Mr. Villegas had no legitimate expectation of privacy in the
duplex’s common hallway, Officer Lutz’s warrantless entry
into that area did not violate the Fourth Amendment.
A defendant seeking to suppress the fruits of a search
bears the burden of demonstrating both that he held an
actual subjective expectation of privacy and that the
expectation “is one that society is prepared to recognize as
reasonable.” Id. In determining whether a defendant held
a subjective expectation of privacy, we look at the defen-
dant’s efforts to conceal and keep private that which was
the subject of the search. Id. To say that society is prepared
to recognize an expectation of privacy as reasonable
“recognizes the everyday expectations of privacy that we
all share.” Minnesota v. Olson, 495 U.S. 91, 98 (1990). Thus,
our inquiry into whether a defendant’s expectation of
privacy was reasonable is necessarily fact dependent, see
United States v. Smith, 978 F.2d 171, 180 (5th Cir. 1992), 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. Waller, 426 F.3d 838, 844 (6th Cir.
2005).
Mr. Villegas has not demonstrated a subjective expecta-
tion of privacy with respect to the common hallway. Nor
has he shown that any subjectively held expectation of
privacy that he might hold with respect to that hallway is
one that society is prepared to recognize as reasonable.
Although Ventura testified that the solid outer doors
leading to the common hallway normally were kept closed
No. 05-2678 11
and locked, on the day in question, those doors were open.
Indeed, Officer Lutz testified that he could see into the
common hallway through a screen door, which itself was
unlocked. Exposing the activities within the common
hallway to the world is inconsistent with a subjective
expectation of privacy, particularly when the other occu-
pants of the duplex, the Franklins, ran a business from the
property that was advertised by a sign in front of the
building.
Even if Mr. Villegas held a subjective expectation of
privacy with respect to the common hallway, the facts of
this case and our precedents reveal that such an expecta-
tion would not be “one that society is prepared to recog-
nize as reasonable.” Yang, 478 F.3d at 835. First, the com-
mon hallway was the sole regular access to both units in
the duplex. Anyone desiring access to the Franklins’ home,
including the Franklins’ customers and, indeed, the
Franklins themselves, had to pass through that hallway to
reach the Franklins’ unit. See United States v. Espinoza, 256
F.3d 718, 723 (7th Cir. 2001) (noting that tenants in multi-
family housing buildings lack a reasonable expectation of
privacy in common areas of the buildings); United States v.
Concepcion, 942 F.2d 1170, 1172 (7th Cir. 1991) (holding that
the defendant had no reasonable expectation that his
activities in an apartment building’s common entrance
would remain his secret). Nor did Mr. Villegas present any
evidence that suggests that he and his sister were related to
the Franklins, such that the duplex in its entirety should be
considered a single dwelling; indeed, the evidence of
record supports the opposite conclusion. But cf. United
States v. King, 227 F.3d 732, 749-50 (6th Cir. 2000) (finding
a reasonable expectation of privacy in a common basement
accessible only by invitees of a duplex’s tenants and where
12 No. 05-2678
all of the tenants were family members). We have held
previously that circumstances such as the one detailed in
this record are inconsistent with a legitimate expectation of
privacy. See Concepcion, 942 F.2d at 1172 (holding that
tenants have no reasonable expectation of privacy in the
common areas of an apartment building); see also Espinoza,
256 F.3d at 723 (noting “considerable tension” between a
district court’s ruling applying the knock and announce
rule of Wilson v. Arkansas, 514 U.S. 927 (1995), to the
common area of a duplex and our prior holdings that
tenants in multi-family housing units lack a legitimate
expectation of privacy in common areas in which landlords
and co-tenants may admit freely outsiders).
Mr. Villegas points to a number of cases from other
courts of appeals holding that the defendant had a legiti-
mate expectation of privacy in a common area of a duplex
or other small multi-family dwelling.3 We believe that these
3
The primary cases to which Mr. Villegas points are United
States v. King, 227 F.3d 732 (6th Cir. 2000), United States v. Fluker,
543 F.2d 709 (9th Cir. 1976), and Fixel v. Wainwright, 492 F.2d 480(5th Cir. 1974).
In King, the Sixth Circuit concluded that the defendant had a
legitimate expectation of privacy in the shared basement of a
duplex. 227 F.3d at 749-50. Although the court in King relied on
Sixth Circuit precedent holding that tenants in an apartment
building had a legitimate expectation of privacy in common
areas not open to the public, id., the court first noted that the
ultimate determination of whether a defendant has a legitimate
expectation of privacy in a particular place must be deter-
mined on a case-by-case basis, id. at 744. The court then looked
to the facts in that particular case in addition to circuit precedent
to determine whether the defendant there had a reasonable
expectation of privacy. Id. at 749-50.
(continued...)
No. 05-2678 13
3
(...continued)
The facts of King highlight the fact-specific inquiry into a
reasonable expectation of privacy. Both units of the duplex
involved in King were occupied by members of a single family:
The defendants, who were brothers, lived in one unit while their
mother and siblings lived in another. Id. at 750. Thus, the
housing unit in King more closely resembled a single family
house than a duplex. Further, the area in question in King
was the basement of the building accessible only to the tenants,
not a common hallway through which any visitor would pass to
reach either of the dwelling units.
In Fluker, the Ninth Circuit determined that the defendant
held a legitimate expectation of privacy in a common hallway of
a duplex that normally was locked to outsiders. 543 F.2d at 712.
The court emphasized that its inquiry into the defendant’s
legitimate expectation of privacy focused on “the particular
circumstances of th[e] case.” Id. at 716. After concluding that,
under those circumstances, the defendant held a legitimate
expectation of privacy in the common hallway, the court added
that its holding was confined to the facts of that case. Id. at 717.
Unlike the present case, the facts of Fluker reveal that the
residents of both units in the duplex were co-conspirators in a
heroin distribution operation. Id. at 712. In that sense, the
occupants had a common interest in maintaining the privacy of
the common hallway. Therefore, it would not be unreasonable
for each occupant to conclude that the others would maintain
the privacy of all occupants of the duplex to advance their
common purpose.
In Fixel, the Fifth Circuit concluded that the defendant had a
legitimate expectation of privacy in a fenced, common backyard
shared by the units of a four-unit, multi-family dwelling. 492
F.2d at 484. The yard was accessible only by passing through a
dwelling unit. Id. In reaching this conclusion, however, the court
expressly distinguished the yard from common hallways
(continued...)
14 No. 05-2678
cases simply emphasize the fact-dependent nature of the
inquiry into the reasonableness of an individual’s expecta-
tion of privacy in a particular place. Under the facts of this
case, Mr. Villegas clearly had no legitimate expectation of
privacy in the common hallway of the duplex.
B. Probable Cause for Arrest
The Government further contends that, even if we
assume, arguendo, that Mr. Villegas was seized in an area
in which he had a legitimate expectation of privacy,
evidence of Mr. Villegas’ identity obtained in the course of
his detention following his arrest and as a result of his
statements to Agent Rickey does not fall within the Fourth
3
(...continued)
used by other tenants or outsiders to access individual units. Id.The court noted that, unlike a common hallway or entrance, the
back yard was not accessible to anyone who wished to approach
the building’s tenants. The court further noted that the yard
itself was surrounded by a fence, rendering the yard compara-
tively more removed and private than a common hallway. Id.Taking these factors as a whole, the court concluded that the
defendant’s privacy had not been so diluted by the fact that he
shared the yard with other tenants of the building as to render
his expectation of privacy unreasonable. Id.The yard in Fixel is readily distinguishable from the common
hallway in the present case. As noted earlier, any visitor to either
unit, including delivery persons, solicitors and customers of
May Franklin’s business, would pass through the common
hallway to reach either unit. Given the comparative openness of
the common hallway, the hallway lacked the same degree of
remove and privacy from the building’s visitors as the yard in
Fixel.
No. 05-2678 15
Amendment’s exclusionary rule because there was proba-
ble cause for his arrest.
The exclusionary rule vindicates an individual’s entitle-
ment to shield his person, house, papers and effects, from
the Government’s scrutiny until a valid warrant has issued.
Hudson v. Michigan, 547 U.S. ___; 126 S. Ct. 2159, 2165
(2006). However, because the exclusionary rule visits
penalties upon the Government, and hence the public at
large, on account of an officer’s violation of the law,
application of the exclusionary rule “must bear some
relation to the purposes which the law is to serve.” New
York v. Harris, 495 U.S. 14, 17 (1990) (quoting United States
v. Ceccolini, 435 U.S. 268, 279 (1978)) (internal quotation
marks omitted). The rule of Payton v. New York, 445 U.S. 573(1980), which prohibits the warrantless, nonconsensual
entry into an individual’s home to make an arrest, is
“designed to protect the physical integrity of the home.”
Harris, 495 U.S. at 17. Because it is the absence of probable
cause, not the absence of a warrant, that renders unlawful
the custody of an individual by the Government, continued
detention of a suspect following an arrest inside his home,
but supported by probable cause, is not rendered unlawful
by the absence of a warrant. Id. at 18-19. Therefore, the
Supreme Court held in New York v. Harris, 495 U.S. 14(1990), that the exclusionary rule does not apply to state-
ments made by a defendant while in custody outside of the
home when the police have probable cause to arrest the
suspect, even though the arrest itself may violate Payton. Id.
at 21.
Probable cause exists when, at the time of arrest, the
arresting officer possesses “knowledge from reasonably
trustworthy information that is sufficient to warrant a
prudent person in believing that a suspect has committed,
16 No. 05-2678
or is committing a crime.” United States v. Breit, 429 F.3d
725, 728 (7th Cir. 2005). Whether a police officer acted on
probable cause is determined “based on the common-sense
interpretations of reasonable police officers as to the
totality of the circumstances at the time of arrest.” Id.At the time of the arrest, Officer Lutz had probable
cause to arrest Mr. Villegas for violation of 8 U.S.C.
§ 1326(a) and (b). An individual violates § 1326(a) when,
after having been deported previously, he is found in the
United States without first having obtained the consent of
the Attorney General to apply for readmission before
reembarking for the United States. 8 U.S.C. § 1326(a). On
the day of Mr. Villegas’ arrest and prior to the arrest,
Officer Lutz had been told by Officer Obergon that there
was an immigration apprehension request for Mr. Villegas’
arrest because he had reentered the United States illegally
after having been deported previously as an aggravated
felon. Officer Obergon also had showed Officer Lutz a
picture of Mr. Villegas. Officer Obergon had obtained this
information in the course of an investigation into Mr.
Villegas’ involvement with the Mexican Posse, an inquiry
he had conducted as a part of his duties as a member of the
MPD’s Gang Squad. Officer Obergon also had learned of
this apprehension request in the course of his investigation.
Absent any reason to believe otherwise, Officer Lutz was
entitled to deem reliable the information received from
his fellow officer. United States v. Parra, 402 F.3d 752, 764
(7th Cir. 2005) (noting that officers effecting an arrest need
not know all of the facts that constitute probable cause
when they reasonably act at the direction of another
officer).
Thus, at the time Officer Lutz saw Mr. Villegas, Officer
Lutz had trustworthy information from a reliable source,
No. 05-2678 17
Officer Obergon, that Mr. Villegas had been deported
previously and had not obtained the permission of the
Attorney General to reenter the United States. When
Officer Lutz saw Mr. Villegas in the hallway, Mr. Villegas
was “found in[] the United States.” Therefore, based on the
reliable information received from Officer Obergon and
Officer Lutz’s own observations, Officer Lutz had probable
cause to believe that Mr. Villegas had violated 8 U.S.C.
§ 1326(a).
Thus, there was probable cause to support Mr. Villegas’
arrest, which rendered his continued detention lawful.4
4
We note further that, in addition to Mr. Villegas’ violation of
8 U.S.C. § 1326(a) and (b), at the time Mr. Villegas was arrested
and taken from the duplex, Officer Lutz had probable cause to
believe Mr. Villegas had violated at least four other Wisconsin
state laws. First, Officer Lutz had probable cause to believe that
Mr. Villegas had violated state law when he saw the object Mr.
Villegas had dropped when Officer Lutz first told him that he
was under arrest. See Wis. Stat. § 961.41(3g)(e). Officer Lutz
testified that when he looked at the clear bag Mr. Villegas had
dropped, its contents appeared to be marijuana. Officers are
entitled to rely on their experience in determining whether
probable cause exists. See United States v. Breit, 429 F.3d 725, 728
(7th Cir. 2005). Second, after Mr. Villegas kicked Officer Lutz in
the midsection, Officer Lutz had probable cause to believe that
Mr. Villegas had committed the offense of battery of a police
officer, regardless of whether Officer Lutz had acted with law-
ful authority when he attempted to arrest Mr. Villegas. See Wis.
Stat. § 940.20(2); see also State v. Barrett, 291 N.W.2d 498, 500-01
(Wis. 1980). Third, when Mr. Villegas spat blood and mucus on
Officer Lutz, Officer Lutz had probable cause to believe that
Mr. Villegas had committed the offense of throwing or discharg-
(continued...)
18 No. 05-2678
Harris, 495 U.S. at 21. Therefore, any statements made by
Mr. Villegas to Agent Rickey at the county jail are not
subject to the Fourth Amendment’s exclusionary rule. See
id.; see also United States v. Roche-Martinez, 467 F.3d 591, 594
(7th Cir. 2006) (holding that evidence of an alien’s identity
obtained while the alien was in custody following an arrest
pursuant to an unlawful entry did not fall within the
exclusionary rule).
Conclusion
Mr. Villegas had no legitimate expectation of privacy in
the common hallway of the duplex. Thus, Officer Lutz did
not violate Mr. Villegas’ Fourth Amendment rights by
entering the common hallway and arresting Mr. Villegas
without a warrant. Further, Mr. Villegas’ arrest and
continued detention were supported by probable cause.
Consequently, the statements by Mr. Villegas to Agent
Rickey while in custody are not subject to the Fourth
Amendment’s exclusionary rule, regardless of whether
Officer Lutz violated Mr. Villegas’ Fourth Amendment
rights by entering the common hallway and arresting
Mr. Villegas without a warrant. The judgment of the
district court is affirmed.
AFFIRMED
4
(...continued)
ing bodily fluid at a public safety worker. See Wis. Stat.
§ 941.375(2). Lastly, assuming that Officer Lutz believed he was
acting with lawful authority when he attempted to arrest Mr.
Villegas, by struggling with the officers, Mr. Villegas gave
Officer Lutz probable cause to suspect that Mr. Villegas had
committed the offense of resisting or obstructing an officer. See
Wis. Stat. § 946.41(a).
No. 05-2678 19
ROVNER, Circuit Judge, concurring in part and concurring
in the judgment. I join all but section II(A) of the court’s
opinion, in which the court sustains Officer Lutz’s
warrantless entry into the duplex on the ground that
Mr. Villegas had no legitimate expectation of privacy in the
duplex’s common hallway. Ante at 10-14. Although the
court’s analysis on that point is consistent with prior
holdings of this circuit and certain of our sister circuits,
I respectfully decline to join it for two reasons.
First, it is unnecessary for us to decide whether Mr.
Villegas had a cognizable expectation of privacy in the
duplex hallway. As we proceed to hold in section II(B) of
today’s decision, even if Officer Lutz violated Mr.
Villegas’s Fourth Amendment rights by entering the
hallway without a warrant, that violation would not
compel the suppression of the statements that Mr. Villegas
subsequently made as to his identity. The probable cause
that Officer Lutz had to arrest Mr. Villegas supported
his post-arrest detention even if it did not support the
officer’s warrantless entry into the duplex to make the
arrest. Consequently, the statements that Mr. Villegas
made while in custody were not subject to the exclusionary
rule. Ante at 16-18.
Second, I find the line of cases categorically rejecting
any Fourth Amendment protection for the hallways and
other common areas of multi-unit residential buildings,
see ante at 11-12, to be conceptually problematic. Essen-
tially, these cases reason that because the resident of a
multi-unit building does not have exclusive access to and
control over a common hallway, but rather shares that
hallway with other building residents and their guests, he
can have no reasonable expectation of privacy in the
hallway. United States v. Concepcion, 942 F.2d 1170, 1172 (7th
Cir. 1991); see also United States v. Miravalles, 280 F.3d 1328,
20 No. 05-2678
1331-32 (11th Cir. 2002) (collecting and summarizing cases).
But the relevant question, it seems to me, is not whether the
hallway is accessible to other residents and their invitees,
but whether the hallway is accessible to the public at
large. When the common hallway of a multi-unit building
is secured, as Mr. Villegas alleges that his duplex’s entry
hall typically was, a resident of that building reasonably
may expect that a non-resident—including a police
officer—can lawfully enter the building only with the
permission of himself or another resident. That expectation
is comparable to the expectation of privacy held by people
who live together in a single home. We do not say
that cohabiting adults have no reasonable expectation of
privacy in their shared residence although both have
access to some if not all of the premises and either one
may admit others; rather, we recognize that each has a
cognizable privacy interest for Fourth Amendment pur-
poses and that a police officer normally cannot enter
without the consent of at least one resident. See Georgia v.
Randolph, 547 U.S. 103, 126 S. Ct. 1515 (2006); United States
v. Matlock, 415 U.S. 164, 94 S. Ct. 988 (1974). I discern no
reason why the same principle ought not to hold vis-à-vis
the secured common areas of a multi-unit residential
building. See United States v. Dillard, 438 F.3d 675, 683 (6th
Cir.), cert. denied, — U.S. —, 127 S. Ct. 291 (2006) (“Tenants
have a reasonable expectation of privacy in locked common
areas because a ‘tenant expects other tenants and invited
guests to enter in the common areas of the building, but he
does not expect trespassers.’ ”) (quoting United States v.
Carriger, 541 F.2d 545, 551 (6th Cir. 1976)); United States v.
Holland, 755 F.2d 253, 259 (2d Cir. 1985) (Newman, J.,
dissenting); Sean M. Lewis, Note, The Fourth Amendment In
The Hallway: Do Tenants Have A Constitutionally Protected
Privacy Interest In The Locked Common Areas Of Their Apart-
No. 05-2678 21
ment Buildings?, 101 MICH. L. REV. 273 (2002). Otherwise, by
declaring that residents have absolutely no expectation of
privacy in such areas, we are necessarily saying that the
police are free to enter these areas without the consent of
any resident of the building and once there walk drug-
sniffing dogs up and down hallways, eavesdrop outside of
individual unit doorways, and so forth. I believe that
such intrusions defy the reasonable expectations of those
who live in buildings with secured common areas.
A more plausible (and narrow) ground for saying that
the warrantless entry in this case did not intrude upon a
cognizable privacy interest might be that the hallway
happened to be unlocked when Officer Lutz stepped
inside. Although I would hesitate to say that Mr. Villegas
and the other residents of the duplex necessarily for-
feited any subjective expectation of privacy in the com-
mon hallway when they (whether inadvertently or inten-
tionally) left the outer doors open and the inner screen
doors unlocked, a police officer confronting an unlocked
screen door might think that the common hallway was
open to the public and, therefore, open to him as well. See
Dillard, 438 F.3d at 682 (“By not locking the duplex’s doors,
Dillard did nothing to indicate to the officers that they
were not welcome in the common areas.”); United States v.
Mendoza, 281 F.3d 712, 715 (8th Cir. 2002) (“In the instant
case, Mendoza did nothing that would lead the officers to
believe he had a protectable interest in the common area
of his duplex. He made no efforts to secure the outer
door.”); see also Miravalles, 280 F.3d at 1333.
In any event, because we do not need to reach the issue,
I believe it would have been more prudent to leave it
for another case in which we do.
22 No. 05-2678
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-27-07