On November 5, 2018, the Seventh Circuit Court of Appeals decided the United States v. Correa[i], which serves as an excellent review of various legal principles related to drug investigations. The relevant facts of Correa are as follows:

The investigation that led the DEA to defendants Jason Correa and Saul Melero began when a DEA confidential source obtained $500,000 in cash from two unidentified men. DEA agents tailed the men to a house a few miles away and put the house under surveillance. Eight days later, on October 27, 2011, agents followed one of the men (who drove the same car he had driven to meet the confidential source eight days earlier) to a grocery store in Chicago. With DEA task force members watching the parking lot and the grocery, the man parked his car next to a silver Jeep and then went into the grocery. The man met in a coffee shop inside the grocery with a man later identified as Correa. Six minutes later, the two men walked to the unidentified man’s car. He retrieved a multicolored bag and gave it to Correa, who put it in the silver Jeep.  Correa then drove away in the Jeep, tailed by task force officers in two unmarked cars. DEA Special Agent Thomas Asselborn radioed the officers and instructed them to stop Correa’s car if they saw a traffic violation.

It did not take long. The officer in the lead car, Mike Giorgetti, saw Correa turn left without signaling at 18th Street and Canal. After following Correa east across the Chicago River, Officer Giorgetti activated his lights and siren and pulled Correa over near the intersection of 18th Street and Wabash. Wearing a bulletproof vest marked “Police” on both sides, Officer Giorgetti approached the driver’s side of Correa’s car. The other task force officer, Steve Hollister, approached the passenger side. Officer Giorgetti asked Correa for his license and registration and asked Correa if he had anything illegal in the car. After Correa said no, Officer Giorgetti asked if he could search the car. Correa said “go ahead.” Officer Hollister witnessed the exchange.

Officer Giorgetti found the multi-colored bag that the unidentified man had given to Correa moments earlier. In a bag inside that bag, Giorgetti found what he thought was cocaine. After finding the cocaine, the officers also found a bag on the front passenger seat containing four garage door openers, three sets of keys, and four cell phones. The officers then arrested Correa. After the officers arrested Correa, but before they took him to the DEA office and gave him Miranda warnings, Agent Asselborn arrived on the scene and took the garage door openers and keys.

Agent Asselborn drove straight to 1717 South Prairie—the address where the unidentified men had taken the confidential source’s car and left with $500,000 in cash eight days earlier. That was a dead end: none of the garage door openers worked at that address. Agent Asselborn spent the next ten to fifteen minutes testing the openers on various nearby buildings. He tested them on “a bunch of townhouses with garages attached to them right in that area.” When that did not work, he “kind of did a grid system,” testing the openers on multiple buildings starting west of South Michigan Avenue and working his way east to an alley just east of Michigan Avenue. Eventually, the garage door opened for a multi-story condominium building at 1819 South Michigan Avenue. Thinking that someone else might have opened the door, Asselborn backed up down the alley, waited for the door to go down automatically, and then activated the opener again. The door opened. Asselborn used the opener “a third time just to be sure,” but he did not enter the garage.

The agents went to 1819 South Michigan Avenue. (They never did figure out what the other garage door openers opened.) Using a key fob from the same bag that had contained the garage door openers, agents entered the locked lobby of the building. They then tested mailbox keys from the same key ring on various mailboxes and found a match: Unit 702. Agent Asselborn contacted a supervisor who was back at the DEA office with Correa, to obtain Correa’s consent for a search of Unit 702. The supervisor told Correa that the keys from the car matched Unit 702, asked if there was “anything illegal” in the condominium, and then asked if Correa “minded if we check 1819 S. Michigan, Unit 702.” Correa said “go ahead and search it,” but he refused to sign a consent form.

Inside the condominium, the agents found a handgun and more than a kilogram each of cocaine and heroin, as well as quantities of marijuana, Ecstasy, and methamphetamine. They also found equipment for weighing and packaging drugs, and personal documents of Saul Melero’s. Correa I, at *2. After a neighbor told agents that Saul Melero was one of the condominium’s residents and was standing outside on Michigan Avenue, agents arrested him on the spot.

Correa and Melero were both charged with drug and firearm offenses.[ii]

Correa and Malero both filed motions to suppress and asserted multiple Fourth Amendment violations.  The district court denied the motions.  The defendant’s ultimately appealed the denial of the motions to suppress to the Seventh Circuit Court of Appeals.  This article will focus on the issues specific to Correa.

The court examined the issues in chronological order.  As such, they examined the legality of (1) the traffic stop, (2) the search of the car, (3) the seizure of the garage door opener and keys, (4) the use of the garage door opener and keys to locate an address, (5) accessing the lobby and testing the mailbox key, and (6) searching the apartment.  Part One of the article discussed the officer’s actions on the scene of the traffic stop (1-3 above) and Part Two will discuss the officer’s subsequent investigative actions (4-6).

It is important to note that when an issue relies on a factual determination made by the trial court, the court of appeals is required to accept the factual determine of the trial court unless it is clearly in error.

  1. The Use of the Garage Door Openers and Keys

The court examined the use of the garage door openers and keys to locate a possible address for a stash location for drugs and noted that this involved two sub-issues.  First, the court stated that they must determine whether there has been a search under the Fourth Amendment.  Second, if there has been a search, the court must determine if that search was reasonable under the Fourth Amendment.

The court first examined whether the use of the garage door openers and keys constituted a search under the Fourth Amendment.

The court held that the use of the garage door by “pushing the buttons” basically “interrogated” the codes used by the devices.  The court then held that the pushing the buttons on the openers to expose the code did constitute a search under the Fourth Amendment.  The court stated

The conclusion that this was a search of the openers fits with common sense. Agent Asselborn first took the openers at least three blocks away from the scene of Correa’s arrest to test them on the garage of the building from which the unidentified men had emerged with the cash eight days earlier. When the openers did not work there, he tried them on “a bunch of townhouses with garages attached to them right in that area.” And when that did not work, he “did a grid system.” We believe that seeing this kind of approach—driving a car up and down streets and alleys testing multiple garage door openers, but backing up after one garage door opened, waiting for it to close, and then opening it again—would strike the layperson as an obvious search and “inspire most of us to—well, call the police.”[iii]

Since the use of the garage door opener was a search a under the Fourth Amendment, the court next set out to determine if that search was reasonable.  The court held that it was a reasonable search under the Fourth Amendment and reasoned as follows:

By repeatedly pressing the openers’ buttons, Agent Asselborn was, in essence, executing a set of searches in the wake of Correa’s arrest. Agent Asselborn was taking chances. We conclude that the Fourth Amendment does not forbid this technique to identify the building or door associated with the opener, at least where the search discloses no further information… Pressing buttons on openers that produce no response harms no one. Pressing the button of the opener that matched the building that turned out to house Correa and Melero’s stash house was reasonable because these searches produced only an address, not any meaningful private information about the interior or contents of the garage. Correa had no reasonable expectation of privacy in that information. Officers routinely obtain that kind of information without a warrant as booking information and in searches incident to arrest.[iv] [emphasis added]

The court further reasoned that the search of the garage door opener’s codes was akin to a search incident to arrest of items such as a wallet, or address book and that these searches are valid, even when not conducted at the scene of the arrest.[v]

The court did note that the officers did not enter the garage.  Officers should be mindful that if they had entered a parking garage that was part of the condominium’s common area that likely no Fourth Amendment violation would occur because the person would not possess a reasonable expectation of privacy in the common area.  Whereas, if a garage door opener to a private residence was used, and if an officer entered that private residence’s garage without a warrant or a valid exception to the warrant requirement, a Fourth Amendment violation likely would occur.

Therefore, the use of the garage door openers to locate the correct condominium building was reasonable under the Fourth Amendment.

  1. Accessing the Lobby and Testing the Mailbox Key

After the agent’s located the correct condominium building using the garage door opener, they used the key fob to enter the building’s locked, common area where mailboxes were located.  They then tested the mailbox keys in each mailbox until they located a unit that corresponded with the key they took from Correa’s vehicle.  The officer’s did not search the mailbox.

The court of appeals held that using the keys in this manner was a search under the Fourth Amendment.  However, since the lobby was a common area, Correa did not possess a reasonable expectation of privacy in that area.  Similarly, using the key in the mailbox to determine a specific condominium unit was a search in that it revealed information.  However, the court of appeals also held that such searches were reasonable under the Fourth Amendment because it only led to the discovery of an address, not what was contained inside the constitutionally protected privacy of that address.  Specifically, the court stated

Under the reasoning of Concepcion, using the key fob to enter the locked building lobby and testing the mailbox key were searches. 942 F.2d at 1172 (“inserting and turning the key is a ‘search'”). The lobby was a common area in which Correa and Melero had no reasonable expectation of privacy. See Sweeney, 821 F.3d at 902, citing Harney v. City of Chicago, 702 F.3d 916, 925 (7th Cir. 2012). And Agent Asselborn did not trespass on their interests because Correa and Melero had no right to exclude anyone from the area. See id. at 899-900 (“to prove a claim of trespass, one must have possession of the property in question and the ability to exclude others from entrance onto or interference with that property”). But the officers learned something from using the fob and the mailbox key. They learned that Correa had access to the building and to a particular unit. That was enough for us to conclude that testing the key in the lock of the apartment was a search in Concepcion, 942 F.2d at 1172-73, and we see no reason to draw a different conclusion when the search is of a common-area door rather than an apartment door.[vi] [emphasis added]

Therefore, the use of the key fob to access the lobby and testing mailbox keys to determine a unit was a search, but the search did not violate the Fourth Amendment.

  1. Consent to Search the Condominium

Lastly, the court of appeals considered whether Correa’s consent to search the condominium was valid under the Fourth Amendment.  The court of appeals thus set out to examine whether Correa possessed “apparent authority” to consent to the search and whether the consent was voluntary.

Molero, Correa’s co-defendant, argued that Correa lacked apparent authority to consent to search of the condominium.  He argued that simply possessing keys did not provide such authority because dog walkers, maids, and delivery persons often possess keys to residences but cannot consent to a search.  The court of appeals noted that the Supreme Court, in the United States v. Matlock[vii], stated that

[A]uthority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, but rests rather on mutual use of the property by persons generally having joint access or control for most purposes.[viii] [emphasis added]

The court of appeals then noted several facts relevant to the issue of apparent authority to consent to a search of the condominium in this case.  Particularly, during a drug investigation that spanned several days, Correa was observed accepting a package of cocaine in a parking lot and driving toward the condominium at issue.  Further, he possessed a garage door opener to the garage, key fob to the lobby and mailbox key to the unit’s mailbox.  Based on the above, the court of appeals held that the agents could reasonably conclude that Correa had the authority to consent to a search of the condominium.

The court then examined whether Correa’s consent to search was voluntary.  In Correa and Molero’s case, the officer’s asked Correa if they could “check 1819 South Michigan, Unit 702.”  He replied, “Go ahead and search it.”  He had previously been advised of his rights under Miranda.  Correa argued that his consent was involuntary because he was handcuffed, the agent that requested consent was not the same agent that advised him of his rights under Miranda, he was not told he could refuse, and he refused to sign a consent to search form.

The court first noted that Correa’s testimony at his suppression hearing was that he was not handcuffed when he asked for consent.  Thus, this argument on appeal was not persuasive.  Second, the court noted there is not requirement that the officer that who advises the defendant of his rights under Miranda be the same officer that requests consent. Lastly, the being told of the right to refuse consent and signing a consent form are factors to consider when determining if consent is voluntary, but they are not absolute requirements.  Rather, the court must view the totality of the circumstances.  The court of appeals stated that relevant factors to consider in the totality of the circumstances are as follows:

(1) the age, intelligence, and education of the person who gave consent, (2) whether she was advised of her constitutional rights, (3) how long she was detained before consenting, (4) whether she consented immediately or only after repeated requests by authorities, (5) whether physical coercion was used, and (6) whether she was in police custody at the time she gave her consent. (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973), and United States v. Raibley, 243 F.3d 1069, 1075-76 (7th Cir. 2001).[ix]

The court then noted that based on the record, there is no evidence the district courts determination that the consent was voluntary was incorrect and as such they affirmed the decision of the district court.

Therefore, the court held that consent to search the condominium was valid under the Fourth Amendment.



[i] No. 16-2316, 16-2467 (7th Cir. Decided November 5, 2018)

[ii] Id. at 2-5

[iii] Id. at 15

[iv] Id. at 16

[v] Id. at 17

[vi] Id. at 20

[vii] 415 U.S. 164 (1974)

[viii] Id. at 171, n.7

[ix] Correa at 22-23

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