United States v. Saul Melero , 908 F.3d 208 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 16-2316 & 16-2467
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JASON CORREA and SAUL MELERO,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
Nos. 11-CR-0750-1 & 11-CR-0750-2 — Robert M. Dow, Jr., Judge.
____________________
ARGUED APRIL 6, 2018 — DECIDED NOVEMBER 5, 2018
____________________
Before EASTERBROOK, RIPPLE, and HAMILTON, Circuit
Judges.
HAMILTON, Circuit Judge. Members of a Drug Enforcement
Agency task force lawfully found drugs in a traffic stop and
seized several garage openers and keys they also found in the
car. An agent took the garage openers and drove around
downtown Chicago pushing their buttons to look for a sus-
pected stash house. He found the right building when the
door of a shared garage opened. The agent then used a seized
2 Nos. 16-2316 & 16-2467
key fob and mailbox key to enter the building’s locked lobby
and pinpoint the target condominium. At the agent’s request,
another agent sought and obtained the arrestee’s consent to
search the target condo. The search turned up extensive evi-
dence of drug trafficking. As we explain below, the use of the
garage door opener was close to the edge but did not violate
the Fourth Amendment, at least where it opened a garage
shared by many residents of the building. At all other stages
of the investigation, the agents also complied with the Fourth
Amendment. We affirm the district court’s denial of the de-
fendants’ motion to suppress the evidence of drug trafficking
found inside the condominium.
I. Factual and Procedural Background
Unless indicated otherwise, we adopt the district court’s
version of the facts from its initial order denying the motion
to suppress. United States v. Correa (“Correa I”), No. 11 CR
0750, 2013 WL 5663804 (N.D. Ill. Oct. 17, 2013).
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 gro-
cery. 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 multi-
colored bag and gave it to Correa, who put it in the silver Jeep.
Nos. 16-2316 & 16-2467 3
Correa then drove away in the Jeep, tailed by task force offic-
ers in two unmarked cars. DEA Special Agent Thomas Assel-
born radioed the officers and instructed them to stop Correa’s
car if they saw a traffic violation.
It did not take long.1 The officer in the lead car, Mike Gior-
getti, 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 Cor-
rea over near the intersection of 18th Street and Wabash.
Wearing a bulletproof vest marked “Police” on both sides, Of-
ficer 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 un-
identified 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 ar-
rested Correa. After the officers arrested Correa, but before
1 When he was Attorney General, the future Justice Jackson said, in
explaining the importance of a prosecutor’s fairness and impartiality: “We
know that no local police force can strictly enforce the traffic laws, or it
would arrest half the driving population on any given morning.” R. Jack-
son, The Federal Prosecutor, Address Delivered at the Second Annual Conference
of United States Attorneys, April 1, 1940, quoted in Morrison v. Olson, 487
U.S. 654, 727–28 (1988) (Scalia, J., dissenting).
4 Nos. 16-2316 & 16-2467
they took him to the DEA office and gave him Miranda warn-
ings, Agent Asselborn arrived on the scene and took the gar-
age door openers and keys.
Agent Asselborn drove straight to 1717 South Prairie—the
address where the unidentified men had taken the confiden-
tial source’s car and left with $500,000 in cash eight days ear-
lier. 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 build-
ings. 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 multi-
ple 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 condo-
minium 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 con-
tained 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
Nos. 16-2316 & 16-2467 5
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 fire-
arm offenses. They moved to suppress all of the evidence, as-
serting numerous violations of their Fourth Amendment
rights. After an evidentiary hearing, the district court denied
the motion. Correa I, 2013 WL 5663804. The court also denied
their motion to reconsider, United States v. Correa (“Correa II”),
No. 11 CR 0750, 2014 WL 1018236 (N.D. Ill. Mar. 14, 2014), and
their renewed motion to reconsider, United States v. Correa
(“Correa III”), No. 11 CR 0750, 2015 WL 300463 (N.D. Ill. Jan.
21, 2015).
Correa pleaded guilty to charges of possession with intent
to distribute various drugs, but he preserved his right to ap-
peal the denial of the motion to suppress. The district court
sentenced him to the mandatory minimum of ten years in
prison. Melero went to trial, and a jury convicted him of pos-
sessing the drugs found in the condominium and for main-
taining the condominium as a stash house. The district court
sentenced Melero to eleven years in prison. Correa and
6 Nos. 16-2316 & 16-2467
Melero both appeal. The central issue is the denial of their mo-
tion to suppress, though it raises many subsidiary issues.
II. Analysis
On appeal from a district court’s ruling on a motion to
suppress, we review legal conclusions de novo and factual
findings for clear error. See United States v. Contreras, 820 F.3d
255, 261 (7th Cir. 2016). We accept the district court’s credibil-
ity determinations “unless the facts, as testified to by the po-
lice officers, were so unbelievable that no reasonable fact-
finder could credit them.” Id. at 263, citing United States v.
Pineda-Buenaventura, 622 F.3d 761, 774 (7th Cir. 2010); see also
United States v. Rodriguez-Escalera, 884 F.3d 661, 666–67 (7th
Cir. 2018) (affirming grant of motion to suppress where dis-
trict court declined to credit officer’s explanation for extended
traffic stop). “A credibility determination will be overturned
only if credited testimony is internally inconsistent, implausi-
ble, or contradicted by extrinsic evidence.” Id., citing Blake v.
United States, 814 F.3d 851, 854–55 (7th Cir. 2016).
Our Fourth Amendment analysis follows the chronology
of the investigative chain. We begin with the traffic stop and
go on to the search of the car, the seizure of the garage door
openers and keys, and the agent’s use of those openers and
keys to identify the right condominium, and we end with the
search of the condominium and Melero’s arrest. We find that
the officers did not violate the Fourth Amendment at any step
along the way.
A. Traffic Stop
The officers lawfully stopped Correa for a traffic violation,
but our path to that conclusion is different from the district
court’s. Rather than decide whether the officers had sufficient
Nos. 16-2316 & 16-2467 7
grounds to stop Correa based on suspected drug activity, we
find that Correa’s traffic violation (turning without signaling)
gave the officers probable cause for the traffic stop. That prob-
able cause satisfies the Fourth Amendment’s reasonableness
requirement even if the officers were more interested in sus-
pected drug trafficking than in dangerous driving on the
streets of Chicago. See United States v. Taylor, 596 F.3d 373, 376
(7th Cir. 2010) (stop proper because driver’s failure to wear
seatbelt gave officers probable cause to believe driver commit-
ted traffic offense); see also Whren v. United States, 517 U.S.
806, 810 (1996) (“As a general matter, the decision to stop an
automobile is reasonable where the police have probable
cause to believe that a traffic violation has occurred.”), citing
Delaware v. Prouse, 440 U.S. 648, 659 (1979), and Pennsylvania
v. Mimms, 434 U.S. 106, 109 (1977). That is why the stop was
lawful even though Agent Asselborn acknowledged at the
suppression hearing that the stop was a “pretext.”
Correa argues that the stop was improper because he did
not turn without signaling, because Officer Giorgetti’s testi-
mony that he saw the traffic violation is uncorroborated, and
because, even if Officer Giorgetti saw the violation, he was
outside of his jurisdiction and had no legal authority for the
stop. We find no reversible error.
The conflict between Correa’s testimony that he did signal
and Officer Giorgetti’s testimony that he did not presents an
ordinary credibility issue. Judge Dow found that Officer Gior-
getti’s testimony was more credible than Correa’s. Correa I,
2013 WL 5663804, at *3. That was not clearly erroneous. The
judge could reasonably choose to believe the officer’s testi-
mony about what he saw, with or without corroboration.
8 Nos. 16-2316 & 16-2467
The district court did not decide the traffic-law issues but
instead held that the agents reasonably suspected a drug
transaction. Id. at *3–4. We find that the stop was justified
based on the traffic violation, so we do not decide whether the
officers’ suspicions of drug trafficking were enough to justify
the stop.
Officer Giorgetti was a Willow Springs police officer acting
as part of a DEA task force. See id. at *3. Under Illinois law, he
could conduct a traffic stop outside his home municipality
based on his observation of a turn made illegally without sig-
naling. See People v. Gutt, 640 N.E.2d 1013, 1016 (Ill. App.
1994). Even if the stop had not complied with state law, that
would not affect the constitutionality of the stop, for which
the officer’s observation of a traffic offense gave him probable
cause, or the resulting search. See Virginia v. Moore, 553 U.S.
164, 176 (2008).
B. Search of the Car
Next, the officers lawfully searched Correa’s car because
he gave them consent to do so. Because the original stop was
lawful, Correa’s consent to the search of the car was not
tainted. Cf. United States v. Cellitti, 387 F.3d 618, 622 (7th Cir.
2004) (“Consent given during an illegal detention is presump-
tively invalid.”). Correa argues that his consent was involun-
tary, but we see no reason to disturb the district court’s cred-
ibility findings that led it to find his consent was voluntary.
See Correa I, 2013 WL 5663804, at *4.
The search did not exceed the scope of Correa’s consent.
“The scope of consent is ‘limited by the breadth of actual con-
sent, and whether the search remained within the boundaries
of the consent is a question of fact to be determined from the
Nos. 16-2316 & 16-2467 9
totality of all the circumstances.’” United States v. Long, 425
F.3d 482, 486 (7th Cir. 2005), quoting United States v. Raney,
342 F.3d 551, 556 (7th Cir. 2003). Giorgetti asked Correa if he
“had anything in the vehicle that I needed to be aware of, an-
ything illegal.” Correa said “no.” Next, Giorgetti “asked Mr.
Correa if he had a problem with me searching the vehicle and
he said go ahead.”
The bag containing the cocaine, inside the multicolored
bag, was within the scope of Correa’s consent. The district
court found that Correa did not limit the scope of his consent,
Correa I, 2013 WL 5663804, at *5, and that finding is not clearly
erroneous. “As the Supreme Court has explained, the ‘scope
of a search is generally defined by its expressed object.’”
United States v. Thurman, 889 F.3d 356, 368 (7th Cir. 2018),
quoting Florida v. Jimeno, 500 U.S. 248, 251 (1991). Correa knew
that Officer Giorgetti was looking for “anything illegal,” so he
had to have known that the officers could be looking for
drugs. “Generally, consent to search a space includes consent
to search containers within that space where a reasonable of-
ficer would construe the consent to extend to the container.”
United States v. Melgar, 227 F.3d 1038, 1041 (7th Cir. 2000), cit-
ing Jimeno, 500 U.S. at 251, Wyoming v. Houghton, 526 U.S. 295,
302 (1999), and United States v. Ross, 456 U.S. 798 (1982). The
officers could reasonably understand Correa’s unlimited con-
sent to apply to a container that might contain drugs. E.g.,
Jimeno, 500 U.S. at 251–52 (general consent to search of car ex-
tended to paper bag on car floor); United States v. Saucedo, 688
F.3d 863, 865–67 (7th Cir. 2012) (applying Jimeno and holding
that general consent allowed officer to remove vehicle’s inte-
rior molding with screwdriver and search hidden, unlocked
10 Nos. 16-2316 & 16-2467
compartment because defendant was aware officer was look-
ing for drugs).2
C. Seizure of Garage Openers and Keys
The officers also lawfully seized the garage door openers
and keys. Correa concedes that the officers “could look in the
bag to see if it contained anything illegal,” but he argues that
he did not consent to seizure of those items. This argument
fails because Correa did not have to consent to the seizure.
After the officers found the drugs, they reasonably inferred
that the multiple garage door openers, sets of keys, and cell
phones could well be evidence of criminal activity.
Evidence is not limited to contraband, of course. See, e.g.,
United States v. Johnson, 383 F.3d 538, 545 (7th Cir. 2004) (per-
mitting warrantless search of car “if there is probable cause to
believe it contains contraband or evidence of a crime”) (em-
phasis added). The police “may have probable cause to seize
an ordinarily innocuous object when the context of an inves-
tigation casts that item in a suspicious light.” Cellitti, 387 F.3d
at 624 (collecting cases but holding that connection between
car keys and gun-focused investigation was too attenuated);
see also United States v. Eschweiler, 745 F.2d 435, 439 (7th Cir.
1984) (affirming seizure of safe deposit box key because agent
could infer suspect had safe deposit box that might contain
cocaine). While a single garage door opener “does not suggest
2These cases offer lessons for anyone who might be asked to consent
to a search of a vehicle or home. Such searches can be very intrusive and
even destructive. Jimeno “ensures that many motorists will wind up ‘con-
senting’ to a far broader search than they might have imagined.” Ohio v.
Robinette, 519 U.S. 33, 48 n.5 (1996) (Stevens, J., dissenting), citing Jimeno,
500 U.S. 248, 254–55 (Marshall, J., dissenting).
Nos. 16-2316 & 16-2467 11
any wrongdoing,” these officers found not one but four gar-
age door openers, together with three sets of keys and four
cell phones. Correa I, 2013 WL 5663804, at *2. And the officers
found all of those items after finding suspected cocaine in the
car and after watching Correa receive the bag that contained
that cocaine from one of the unidentified men who had driven
away from a handoff of at least $500,000 in cash eight days
earlier. Correa I, 2013 WL 5663804, at *1. Taken together, these
investigative threads suggested enough of a connection be-
tween drug trafficking and the garage door openers, keys, and
cell phones to justify their seizure as part of the search of the
car.
D. Use of Garage Door Openers, Fob, and Keys
Using the garage door opener to find the condominium
building was a search, but it was reasonable. The Fourth
Amendment provides, in full:
The right of the people to be secure in their per-
sons, houses, papers, and effects, against unrea-
sonable searches and seizures, shall not be vio-
lated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirma-
tion, and particularly describing the place to be
searched, and the persons or things to be seized.
The text does not expressly require warrants, but the pro-
hibition against unreasonable searches and seizures has long
been read “to require warrants in some circumstances as es-
sential to the ‘reasonableness’ of particularly intrusive
searches, such as those into dwellings.” United States v.
Limares, 269 F.3d 794, 799 (7th Cir. 2001), citing Chimel v. Cali-
fornia, 395 U.S. 752 (1969); see also United States v. Rivera, 817
12 Nos. 16-2316 & 16-2467
F.3d 339, 340 (7th Cir. 2016) (“Contrary to popular impression,
the Fourth Amendment does not require a warrant to search
or to arrest—ever; its only reference to warrants is a condem-
nation of general warrants.”). Warrants are a proxy for rea-
sonableness. See Riley v. California, 134 S. Ct. 2473, 2482 (2014);
Brigham City v. Stuart, 547 U.S. 398, 403 (2006).
Warrants, probable cause, reasonable suspicion, and other
analytical labels are all ways to assess whether a search is rea-
sonable. The Fourth Amendment essentially asks two ques-
tions: first, has there been a search or a seizure, and second,
was it reasonable? See Carpenter v. United States, 138 S. Ct.
2206, 2215 n.2 (2018) (distinguishing “the threshold question
whether a ‘search’ has occurred” from “the separate matter of
whether the search was reasonable”); Arizona v. Hicks, 480
U.S. 321, 327 (1987) (analyzing search and reasonableness
questions sequentially); see also William Baude & James Y.
Stern, The Positive Law Model of the Fourth Amendment, 129
Harv. L. Rev. 1821, 1829 (2016). Those steps are not always
neatly divided. See id.at 1871 & nn. 242–43 (noting that courts
sometimes blend the question of reasonableness of law en-
forcement conduct with question of whether suspect had rea-
sonable expectation of privacy). Following this approach, we
conclude that using the garage door openers to locate the cor-
rect building was a search, but the search was reasonable.
1. Was There a Search?
The Supreme Court uses two analytical approaches to de-
cide whether a search has occurred. One is the property-based
or trespass approach. E.g., Florida v. Jardines, 569 U.S. 1 (2013)
(dog sniff on front porch of home); United States v. Jones, 565
U.S. 400 (2012) (installation of GPS tracking device on car).
The other is based on expectations of privacy. E.g., Riley, 134
Nos. 16-2316 & 16-2467 13
S. Ct. at 2488-91 (search incident to arrest of cell phone on ar-
restee’s person). The two approaches work together, as was
evident in Byrd v. United States, where the Court wrote that
“‘property concepts’ are instructive in “determining the pres-
ence or absence of the privacy interests protected by that
Amendment,” 138 S. Ct. 1518, 1526 (2018), citing Rakas v. Illi-
nois, 439 U.S. 128, 144 n.12 (1978), and that the reasonable ex-
pectation of privacy test “supplements, rather than displaces,
‘the traditional property-based understanding of the Fourth
Amendment.’” Id., quoting Jardines, 569 U.S. at 11; see also
Jardines, 569 U.S. at 12 (Kagan, J., concurring) (analyzing “on
privacy as well as property grounds”); Baude & Stern, 129
Harv. L. Rev. at 1836 (property concept “operates as a sidecar
to Katz”). Our opinions reflect that blended approach. See,
e.g., United States v. Sweeney, 821 F.3d 893, 902–03 (7th Cir.
2016) (no search because there was no trespass of defendant-
tenant’s property interests and because he had no reasonable
expectation of privacy in shared basement of apartment
building); United States v. Thompson, 811 F.3d 944, 948 (7th Cir.
2016) (search occurs via either trespass or infringement of rea-
sonable expectation of privacy).
Agent Asselborn’s use of the garage door openers to find
the condominium building was not a search of the garage at
1819 South Michigan Avenue, under either a trespass or pri-
vacy analysis. The agent did not trespass against these de-
fendants’ property interests. The trespass analysis can be fact-
intensive, see, e.g., Sweeney, 821 F.3d at 899–900 (assessing
whether plaintiff’s lease conferred “exclusive property inter-
est in any part” of shared common space), and can certainly
be a more difficult question than it is here. We noted in
Sweeney that even if the officer trespassed in a common area,
the trespass would have been against the building’s owner,
14 Nos. 16-2316 & 16-2467
not against the defendant, who was an individual tenant. Id.
at 900. We see no reason to conclude differently here. Even if
there had been a trespass, we do not think the garage was pro-
tected from the agent’s opening of the door. Three of the four
factors for determining the scope of the curtilage, id. at 901
(collecting cases and listing factors as proximity of area to
home, whether area is in an enclosure surrounding home, use
of area, and whether steps have been taken to protect area
from observation), cut in the government’s favor. It was on a
different floor than the target condominium. It was not “en-
closed and intimate,” id. at 902, to the condominium itself. If
shared laundry facilities are not “intimately linked” to a
home, as they were not in Sweeney, a shared parking facility is
not. That leaves one factor that cuts slightly in the defendants’
favor here—the fact that the garage was behind a garage door
that only someone with an opener could open. Yet the agents
did not even enter the garage.
The garage, though, is only half of the analysis: the open-
ers are the other half. Agent Asselborn searched them by
pushing the buttons, which interrogated the code generated
by the opener with each push of the button. Absent a trespass,
Jones suggests that we should focus on privacy. See 565 U.S.
at 411 (“Situations involving merely the transmission of elec-
tronic signals without trespass would remain subject to Katz
analysis.”) (emphasis in original). Katz alone would have us
focus on the reasonable expectation of privacy—just as in
United States v. Concepcion, 942 F.2d 1170, 1172–73 (7th Cir.
1991), where we held that taking an arrestee’s key and testing
it in his apartment door was a search, though a reasonable
one. Because the arrestee had no expectation of privacy in his
apartment building’s locked common area, we did not con-
Nos. 16-2316 & 16-2467 15
duct the same analysis for the officers’ use of one of the ar-
restee’s keys to open the door to the apartment building’s
locked common area. See id. at 1171–72.
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 uni-
dentified 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 sys-
tem.” 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.” Jardines, 569 U.S. at 9.
2. Was the Search Reasonable?
The next question is whether the search was reasonable.
The answer is yes. “There is no dispute that ‘[w]arrantless
searches are presumptively unreasonable under the Fourth
Amendment.’” Thurman, 889 F.3d at 365 (alteration in origi-
nal), quoting United States v. Strache, 202 F.3d 980, 984 (7th Cir.
2000). “Therefore, ‘[i]n the absence of a warrant, a search is
reasonable only if it falls within a specific exception to the
warrant requirement.’” Id. (alteration in original), quoting Ri-
ley, 134 S. Ct. at 2482; see also Vale v. Louisiana, 399 U.S. 30, 34–
35 (1970) (reversing denial of motion to suppress because
search of premises after arrest and without warrant was not
justified by any exception to warrant requirement); 2 Wayne
R. LaFave, Search and Seizure: A Treatise on the Fourth
16 Nos. 16-2316 & 16-2467
Amendment § 4.1(b) (5th ed.) (listing exceptions); 45 Geo. L.J.
Ann. Rev. Crim. Proc. 49–176 (2016) (same).
By repeatedly pressing the openers’ buttons, Agent Assel-
born 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 infor-
mation. The logic of Concepcion suggests that Agent Asselborn
could have shown the openers to landlords and asked them
whether any of the openers matched the landlords’ buildings.
See 942 F.2d at 1173 (officers could have shown key to land-
lord to compare to key issued to tenant). 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 pri-
vacy in that information. Officers routinely obtain that kind of
information without a warrant as booking information and in
searches incident to arrest.
Agent Asselborn used the openers to learn an address—
the kind of information officers may lawfully obtain as part of
the booking process. And in that context, even Miranda pro-
tections do not apply, at least where the address is collected
for record-keeping purposes. Pennsylvania v. Muniz, 496 U.S.
582, 601–02 (1990) (opinion of Brennan, J.); see also United
States v. Ceballos, 385 F.3d 1120, 1123 (7th Cir. 2004) (noting
Nos. 16-2316 & 16-2467 17
that officers may question arrestee “to collect booking infor-
mation incident to processing”), citing United States v. Kane,
726 F.2d 344, 349 (7th Cir. 1984).
At oral argument, counsel for Correa and Melero argued
that garage door openers, unlike an arrestee’s residential ad-
dress provided at booking, do not necessarily indicate resi-
dence. But address books and wallets can provide officers
with information beyond an arrestee’s address. Courts have
long held that officers may search wallets and address books
found on arrestees without obtaining separate warrants for
those searches, even if those searches are not conducted at the
scene of an arrest. E.g., United States v. Rodriguez, 995 F.2d 776,
778 (7th Cir. 1993) (affirming denial of motion to suppress ad-
dress book found on arrestee’s person; searching and photo-
copying address book was permissible search incident to ar-
rest even though search was conducted away from scene of
arrest), citing United States v. Molinaro, 877 F.2d 1341, 1346–47
(7th Cir. 1989) (affirming denial of motion to suppress evi-
dence seized from arrestee’s wallet). Riley did not undo our
approach to searches of wallets and address books incident to
arrest. See Riley, 134 at 2493 (rejecting argument that “officers
could search cell phone data if they could have obtained the
same information from a pre-digital counterpart,” but not ex-
pressly rejecting lower courts’ approach to searches of those
pre-digital counterparts); see also id. at 2496 n.* (Alito, J., con-
curring in part and concurring in judgment), citing Rodriguez
and Molinaro.
Correa argues, though, that Riley resolves this case be-
cause its holding prohibiting warrantless searches of cell
phones seized incident to arrest should be read more broadly
to apply to searches of “non-contraband electronic items that
18 Nos. 16-2316 & 16-2467
contain and/or can lead to privately held information in the
home or about the home.” Riley should not be read that
broadly. Its holding was based on the Court’s recognition that
“Cell phones differ in both a quantitative and a qualitative
sense from other objects that might be kept on an arrestee’s
person.” 134 S. Ct. at 2489. Garage door openers do not impli-
cate the same differences. Riley noted that cell phones “could
just as easily be called cameras, video players, rolodexes, cal-
endars, tape recorders, libraries, diaries, albums, televisions,
maps, or newspapers.” Id. Nevertheless, Riley helps to explain
why Agent Asselborn’s searches did not violate the Fourth
Amendment.
As Riley reiterated, when “‘privacy-related concerns are
weighty enough’ a ‘search may require a warrant, notwith-
standing the diminished expectations of privacy of the ar-
restee.’” Id. at 2488, quoting Maryland v. King, 569 U.S. 435, 463
(2018); see also Carpenter v. United States, 138 S. Ct. 2206, 2220
(2018) (collection of cell-site location information “implicates
privacy concerns far beyond those considered in Smith [pen
register] and Miller [checks]”); but see id. at 2232 (Kennedy, J.,
dissenting) (“Still the Court errs, in my submission, when it
concludes that cell-site records implicate greater privacy in-
terests—and thus deserve greater Fourth Amendment protec-
tion—than financial records and telephone records.”). Those
concerns are not weighty enough here because the search of
the garage door openers revealed only Correa’s association
with an address.
Like an officer searching an arrestee’s wallet or address
book, Agent Asselborn searched the garage door openers to
generate investigative leads. Riley does not condemn that in-
Nos. 16-2316 & 16-2467 19
vestigative step. In Riley, the Court warned that using an ar-
restee’s cell phone to search files stored remotely “would be
like finding a key in a suspect’s pocket and arguing that it al-
lowed law enforcement to unlock and search a house.” Id. at
2491. Nothing comparable happened here. Agent Asselborn
did not search or even enter the garage. We recognize that law
enforcement creativity may call for judicial vigilance. See
Baude & Stern, 129 Harv. L. Rev. at 1861 (“When police are
intentionally pushing the limits of their power is precisely
when we can ask them to check whether they are pushing too
far.”). But Agent Asselborn’s searches of the garage door
openers were good—or at least lucky—police work, not
Fourth Amendment violations.
Officers are, of course, allowed and expected to investigate
to build probable cause for an arrest. See United States v.
Prewitt, 553 F.2d 1082, 1085 (7th Cir. 1977) (tracing origin of
fraudulent money orders “in no way impinged on Prewitt’s
rights”). And if officers have probable cause to arrest some-
one, there is a good chance they also have probable cause to
search his home for evidence. See United States v. Kelly, 772
F.3d 1072, 1080 (7th Cir. 2014) (officer obtained warrant for
suspect’s home on ground that drug dealers are likely to keep
contraband in their residences); United States v. Aljabari, 626
F.3d 940, 946 (7th Cir. 2010) (“When probable cause exists to
believe an individual has committed a crime involving phys-
ical evidence, and when there is no articulable, non-specula-
tive reason to believe that evidence of that crime was not or
could not have been hidden in that individual’s home, a mag-
istrate will generally be justified in finding probable cause to
search that individual’s home.”), citing United States v. Ressler,
536 F.2d 208, 213 (7th Cir. 1976).
20 Nos. 16-2316 & 16-2467
We do not address here what would happen if the agents
had used the openers to open a private garage in which a res-
ident had a reasonable expectation of privacy and then used
what they saw to pursue further inquiries. (Imagine that the
garage door goes up and officers see the stolen car they were
told to look for. Cf. Collins v. Virginia, 138 S. Ct. 1663, 1671
(2018) (car exception did not permit officer to investigate mo-
torcycle parked in curtilage).) We leave that scenario for a fu-
ture case.
E. Accessing the Lobby, Testing the Mailbox Key, and Search-
ing the Condominium
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 of-
ficers 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.
Nos. 16-2316 & 16-2467 21
The search was reasonable and so did not violate the
Fourth Amendment. For the reasons discussed regarding the
search of the garage door opener, using the fob to access the
lobby and testing the mailbox key without a warrant were
reasonable searches. The officers needed to investigate to ob-
tain more information—either to approach Correa and seek
consent or to seek a warrant.
In United States v. Bain, the First Circuit criticized our “rea-
soning [in Concepcion] that the information gathered by the
search could have been easily obtained otherwise.” 874 F.3d
1, 18 (1st Cir. 2017). But like the officers in Concepcion, the of-
ficers in Bain used the arrestee’s keys on both the front door
of the multi-family building and apartment doors inside. Id.
at 8. The First Circuit expressly limited its analysis to the use
of the key in the apartment door and said nothing in that lim-
itation about using the key on the front door of the building.
See id. at 19 n.9 (“We do not consider whether the curtilage of
unit D extended … to the entire common space of 131 Laurel
Street, which might mean that trying the key on the door of
both of the other apartments in the building were searches of
unit D.”). So the First Circuit’s criticism of Concepcion did not
address, at least directly, a search like the one we address
here. Unlike the officers in Concepcion and Bain, these officers
did not use the keys to test the lock of the apartment door it-
self, let alone to enter the residence. They did not need to be-
cause they obtained Correa’s consent to search the condomin-
ium.
The district court found that Correa’s consent was valid
because he had apparent authority to give it and because it
was voluntary. Correa I, 2013 WL 5663804, at *6–7. Neither
finding is clearly erroneous.
22 Nos. 16-2316 & 16-2467
Correa also had apparent authority to consent to the
search. When the officers asked him for consent, they knew
he had possessed the garage door opener, the lobby key fob,
and the mailbox key. Melero argues that merely possessing
keys should not be enough to indicate apparent authority be-
cause otherwise, giving keys to “dogwalkers, dry cleaners,
maids, or delivery persons” would give apparent authority.
That argument is correct but incomplete. The apparent au-
thority analysis depends on context, not just the object pos-
sessed. See United States v. King, 627 F.3d 641, 648 (7th Cir.
2010) (officers’ belief that restaurant employee had apparent
authority was justified where employee had keys to restau-
rant and alarm deactivation code and opened restaurant, “a
small establishment,” alone); see also United States v. Matlock,
415 U.S. 164, 171 n.7 (1974) (“authority 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”) (citations
omitted). Given the context here—a days-long investigation
in which Correa accepted a package of cocaine in a parking
lot and, by his own admission, was driving toward the build-
ing’s intersection when he was pulled over immediately after-
ward, Correa I, 2013 WL 5663804, at *6—the officers could rea-
sonably believe Correa had authority to consent.
We also agree with the district court that Correa’s consent
was voluntary. Determining whether consent was voluntary
depends on the totality of the circumstances, and several fac-
tors may be relevant. See Cellitti, 387 F.3d at 622 (factors in-
clude: “(1) the age, intelligence, and education of the person
who gave consent, (2) whether she was advised of her consti-
Nos. 16-2316 & 16-2467 23
tutional rights, (3) how long she was detained before consent-
ing, (4) whether she consented immediately or only after re-
peated 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). Although the district court did
not expressly evaluate the relevant factors to assess voluntar-
iness, we see no clear error in its finding. The officers asked
Correa if they could “check 1819 South Michigan, Unit 702.”
Correa said “‘Go ahead and search it.’”
On appeal, Correa argues that his consent was involuntary
because he was handcuffed, the officer who gave him Miranda
warnings was not the same agent who requested consent, the
agents did not advise him that he could refuse, and he refused
to sign a consent form. The first argument conflicts with Cor-
rea’s testimony at the suppression hearing where he testified
that he was not handcuffed. The other arguments do not indi-
cate an involuntary consent. See United States v. Valencia, 913
F.2d 378, 381 (7th Cir. 1990) (affirming finding of voluntari-
ness where officers made no threats, defendant remained
calm, never refused consent, received Miranda warnings, was
informed that he did not have to consent, and indicated that
he understood rights). To the extent Correa’s account differs
from the officers, we find no basis to disturb the district
court’s credibility determination. See Correa I, 2013 WL
5663804, at *6.
Melero’s challenge to his arrest also fails. After the agents
found the drug evidence and documents relating to Melero in
24 Nos. 16-2316 & 16-2467
Unit 702, the neighbor’s identification of Melero gave them
probable cause to arrest him.
The judgments are
AFFIRMED.
Nos. 16-2316 & 16-2467 25
RIPPLE, Circuit Judge, concurring. I join the judgment and
the opinion of the court. This is a very difficult case and cer-
tainly presents a situation near the outer limits of what the
Fourth Amendment tolerates. Of special concern to me is the
officers’ entry into the locked foyer of the building. Given
our decisions in United States v. Concepcion, 942 F.2d 1170
(7th Cir. 1991), and in United States v. Sweeney, 821 F.3d 893
(7th Cir. 2016), the officers can rely on the good faith excep-
tion to the exclusionary rule. Mr. Correa has not carried,
moreover, his burden of demonstrating that the analysis
here reflects inadequately his cognizable property and pri-
vacy rights. Nonetheless, this case should prompt us to con-
sider whether our present case law reflects adequately the
new realities of property ownership and privacy in an urban
setting such as the one here.
As set forth in Concepcion and, to a somewhat lesser ex-
tent in Sweeney, the general rule of the last several decades
has been that common areas in multi-dwelling buildings are
not within the protection of the Fourth Amendment. Both
our case law and the case law of at least four of our sister
circuits reflect this approach.1 We need to be vigilant that
our articulation and application of that default rule does not
1 United States v. Hawkins, 139 F.3d 29, 32–33 (1st Cir. 1998) (apartment
basement); United States v. Nohara, 3 F.3d 1239, 1241–42 (9th Cir. 1993)
(apartment hallway); United States v. Barrios-Moriera, 872 F.2d 12, 14–15
(2d Cir. 1989) (apartment hallway), abrogated on other grounds, Horton v.
California, 496 U.S. 128 (1990); United States v. Eisler, 567 F.2d 814, 816 (8th
Cir. 1977) (apartment hallway); see also United States v. Pyne, 175 F. App’x
639, 640–41 (4th Cir. 2006) (concluding that an apartment parking garage
with an unreliable security gate was a common area not within the scope
of the Fourth Amendment’s protection).
26 Nos. 16-2316 & 16-2467
become so rigid and so automatic that we overlook situa-
tions where the realities are otherwise.
The Supreme Court’s precedent does not require that we
ignore the social and economic realities of contemporary ur-
ban America. In United States v. Dunn, 480 U.S. 294 (1987),
the Supreme Court identified four factors that we should
consider when determining the scope of curtilage. They are
“the proximity of the area claimed to be curtilage to the
home, whether the area is included within an enclosure sur-
rounding the home, the nature of the uses to which the area
is put, and the steps taken by the resident to protect the area
from observation by people passing by.” Id. at 301. As men-
tioned previously, federal district courts applying these fac-
tors generally have found common areas unprotected by the
Fourth Amendment because they are not within the exclu-
sive control of the apartment owners or are used routinely
by others.2 State courts have followed the same path.3 There
2 See, e.g., Seay v. United States, Nos. 15-3367 & 14-0614, 2018 WL 1583555,
at *5 (D. Md. Apr. 2, 2018) (applying Dunn to determine that a common
hallway in an apartment is not curtilage); United States v. Bain, 155 F.
Supp. 3d 107, 116–17 (D. Mass. 2015) (applying Dunn to determine a
landing outside of a tenant’s door in an apartment hallway is not curti-
lage), aff’d, 874 F.3d 1 (1st Cir. 2017).
3 See, e.g., State v. Luhm, 880 N.W.2d 606, 617–18 (Minn. Ct. App. 2016)
(applying Dunn and finding no reasonable expectation of privacy in the
common area of a secured, multi-unit condominium building); State v.
Nguyen, 841 N.W.2d 676, 680–82 (N.D. 2013) (deciding “[t]hat the law
enforcement officers were technical trespassers in the common hallways
is of no consequence because Nguyen had no reasonable expectation that
the common hallways of the apartment building would be free from any
intrusion” where the hallways were available to use of tenants, guests,
and others having legitimate reasons to be on the property, and no ten-
(continued … )
Nos. 16-2316 & 16-2467 27
always has been, however, a cautionary thread in our Fourth
Amendment case law against rigid application of this gen-
eral rule. The Supreme Court has emphasized that Dunn’s
factor-based analysis is not a “finely tuned formula that,
when mechanically applied, yields a ‘correct’ answer to all
extent-of-curtilage questions.” Id. This caution suggests that
our inquiry should be a fact-intensive consideration of
“whether the area in question is so intimately tied to the
home itself that it should be placed under the home’s ‘um-
brella’ of Fourth Amendment protection.” Id.
From time to time, we have expressed a mistrust of
adopting ironclad rules about common spaces. In Reardon v.
Wroan, 811 F.2d 1025, 1027 n.2 (7th Cir. 1987), we noted that
the hallways of a fraternity house were protected. We rea-
soned that a fraternity is “an exclusive living arrangement
with the goal of maximizing the privacy of its affairs” and
that fraternity members are, practically speaking, “room-
mates in the same house” rather than “co-tenants sharing
certain common areas.” Indeed, in United States v. Whitaker,
820 F.3d 849, 854 (7th Cir. 2016), we acknowledged explicitly
that there is a “middle ground between traditional apart-
ment buildings and single-family houses,” and recognized
that “a strict apartment versus single-family home distinc-
tion is troubling because it would apportion Fourth
Amendment protections on grounds that correlate with in-
come, race, and ethnicity.” We explicitly stressed in United
( … continued)
ant could bar entry to such visitors); State v. Dumstrey, 873 N.W.2d 502,
512–15 (Wis. 2016) (determining that an apartment parking garage is not
curtilage under the Dunn factors).
28 Nos. 16-2316 & 16-2467
States v. Villegas, 495 F.3d 761, 768–69 (7th Cir. 2007), the
fact-specific nature of this inquiry.4
It is more difficult today to determine whether, on any
given set of facts, individuals may claim Fourth Amendment
protection beyond the boundaries of an individual living
unit. Concerned about personal security and driven by eco-
nomic necessity, individuals now engage in a wide variety
of property arrangements to ensure that they have increased
access to, and control over, the area outside the door to their
individual condominiums or cooperative apartments. These
contemporary changes necessitate constant vigilance that we
take the time to appreciate fully the specific facts of such ar-
rangements. Today, young adults live in quasi-communal
arrangements to cope with the high cost of living in major
cities; more affluent individuals live in condominium ar-
rangements under increasingly strict agreed-upon rules; res-
idents prescreen newcomers and occasionally the residential
group is preformed; and senior citizens live in retirement
communities where meals are taken in common and congre-
4 Notably, in People v. Burns, 50 N.E.3d 610 (Ill. 2016), the Illinois Su-
preme Court determined the third-floor landing of an apartment build-
ing was protected by the Fourth Amendment. The court suggested that
the property-based rationale in Florida v. Jardines, 569 U.S. 1 (2013), is ap-
plicable to apartments and condominiums because the secured build-
ing’s common areas were clearly not open to the general public. Id. at
620. The court also applied the Dunn factors and concluded that the
landing was within the curtilage of the apartment. Id. at 620–22. Taking
the factors in turn, it determined that the landing was in close proximity
to the apartment; was located in a locked structure intended to exclude
the general public outside of the tenant, his neighbor, and their invitees;
and was not observable to people passing by.
Nos. 16-2316 & 16-2467 29
gate living is expected as a condition for membership. In
these situations, individuals have definite expectations,
grounded in property rights or custom, about who is wel-
come in various parts of the establishment. Cf. Moore v. City
of East Cleveland, 431 U.S. 494, 504 (1977) (plurality opinion of
Powell, J.) (“Ours is by no means a tradition limited to re-
spect for the bonds uniting the members of the nuclear fami-
ly.”). Fourth Amendment protections are not limited only to
the most common living arrangements of the day. Those
who assert the Fourth Amendment’s protections must have
a right to demonstrate that their living arrangement is
grounded in assertions of property rights5 or custom recog-
nized by the community. Cf. Kras v. United States, 409 U.S.
434, 460 (1973) (Marshall, J., dissenting) (“[i]t is disgraceful
for an interpretation of the Constitution to be premised upon
unfounded assumptions about how people live.”). As the
Supreme Court has demonstrated recently in United States v.
Jones, 565 U.S. 400 (2012), we must be sensitive to changes in
modern life that impact Fourth Amendment values. Formal-
istic bright-line rules of the past do not always provide use-
ful tools of analysis.
The Supreme Court has said that case-by-case adjudica-
tion of search and seizure cases will permit the courts “to
unify precedent and will come closer to providing law en-
forcement officers with a defined set of rules which, in most
instances, makes it possible to reach a correct determination
5 The Supreme Court recently has emphasized that both property con-
cepts and privacy expectations can determine the scope of the Fourth
Amendment. See, e.g., Florida v. Jardines, 569 U.S. 1 (2013); United States v.
Jones, 565 U.S. 400 (2012).
30 Nos. 16-2316 & 16-2467
beforehand as to whether an invasion of privacy is justified
in the interest of law enforcement.” Ornelas v. United States,
517 U.S. 690, 697–98 (1996) (internal quotation marks omit-
ted). Premature reduction of precedent to rigid rules, how-
ever, can blind us to the values that we all agree are at the
heart of the Fourth Amendment. Oversimplification of a nu-
anced and changing area is a superficial, and artificial, solu-
tion.
Because Mr. Correa has failed to carry his burden of es-
tablishing that he had a cognizable property interest or an
expectation of privacy in the common lobby, the garage door
or the remote device, his Fourth Amendment claim must
fail. Moreover, as I noted at the outset, the officers can justify
their opening of the locked lobby door on circuit precedent.
Accordingly, with respect to those actions, the good faith ex-
ception to the warrant requirement bars the application of
the exclusionary rule.
For these reasons, I join the judgment and the opinion of
the court.