`United States Court of Appeals
`For the Seventh Circuit
`
`No. 19‐3388
`
`UNITED STATES OF AMERICA,
`
`ETHEL SHELTON,
`
`Plaintiff‐Appellee,
`
`v.
`
`Defendant‐Appellant.
`
`Appeal from the United States District Court for the
`Northern District of Indiana, Hammond Division.
`No. 2:14‐cr‐00129‐JVB‐JEM‐2 — Joseph S. Van Bokkelen, Judge.
`
`ARGUED NOVEMBER 13, 2020 — DECIDED MAY 14, 2021
`
`Before FLAUM, ROVNER, and BRENNAN, Circuit Judges.
`ROVNER, Circuit Judge. Demoted, disparaged, and deprived
`of a free government car, Stafford Garbutt decided that he
`could no longer tolerate what he believed to be criminal
`conduct by his boss and co‐workers, conduct that he himself
`had been engaging in for more than ten years. After his
`anonymous letters to a local newspaper and to the United
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`No. 19‐3388
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`States Attorney’s office accusing his former friend and boss of
`official misconduct failed to garner any response, he ap‐
`proached the United States Attorney’s office in person with his
`story. That office directed him to the FBI, where he began a
`partnership with an agent who eventually directed him to
`conduct warrantless searches of his co‐workers’ offices.
`Garbutt’s actions ultimately ensnared not only his intended
`target, Calumet Township Trustee Mary Elgin, but also Elgin’s
`administrative assistant, Ethel Shelton, the defendant here.
`After Elgin took a plea deal, a jury convicted Ethel Shelton of
`conspiracy to commit wire fraud and conspiracy to commit
`honest services wire fraud related to her actions as an em‐
`ployee of the Calumet Township Trustee’s Office. Shelton
`learned mid‐trial that the FBI agent had directed Garbutt to
`conduct warrantless searches of her office. Although the
`district court tried to mitigate any damage by allowing Shelton
`to move post‐trial for relief, the court ultimately denied her
`motion. We reverse and remand.
`I.
`Mary Elgin first ran for the post of Trustee of Calumet
`Township in 2002. The Trustee’s Office was charged with
`helping people in the community in need of assistance in areas
`such as jobs, food, housing, and the like. Elgin had previously
`been a union official in the United Steelworkers of America,
`and she met Stafford Garbutt at an international convention for
`the union in 1980. Garbutt, who holds dual citizenship in
`Belize and the United States, was impressed with Elgin and
`began to help her with campaigns for union leadership posts.
`When Elgin decided to run for the position of Trustee of
`Calumet Township in 2002, she contacted Garbutt and asked
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`No. 19‐3388
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`him to help. Garbutt, who was living in Belize at the time and
`working as an assistant to the Deputy Prime Minister of that
`country, agreed to help and immediately drafted a program for
`her election. He moved from Belize (where he had a wife and
`daughter) into Elgin’s home in Gary, Indiana, where he
`remained for several months. He created a political action
`committee for her, developed newsletters and flyers, and
`worked on all aspects of her campaign. That campaign marked
`the first of Elgin’s three successful bids for the position of
`Trustee, a post she held for twelve years. Garbutt conceded at
`trial that he had an intimate relationship with Elgin (although
`he denied it was sexual in nature), and admitted that they
`traveled and socialized together. After Elgin’s first successful
`campaign for Trustee, she hired Garbutt to work at the
`Trustee’s Office and allowed him to write his own job descrip‐
`tion and essentially name his own salary.
`The Trustee’s Office was organized with Elgin at the top,
`and several deputies reporting to her, including a chief deputy
`who acted as the principal administrator for the Office. The
`deputies supervised the various departments that made up the
`Trustee’s Office. Elgin hired Garbutt to work as her “executive
`aide” (a position that did not previously exist in that Office) at
`a salary of $60,000 per year. Only Elgin herself and the chief
`deputy earned higher salaries. Garbutt had insisted that he
`would not be responsible to anyone but the Trustee and that
`the chief deputy could not direct him “in any manner, shape,
`or form.” R. 257, at 283. Garbutt’s official responsibilities
`included public relations, speech writing, newsletter editing,
`and interacting with local and state officials on issues pertinent
`to the Trustee’s Office. Although he was not a deputy, Elgin
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`granted him all of the perks and privileges of being a deputy,
`including a government car for his exclusive use, and partici‐
`pating in meetings that Elgin held with the deputies. Unlike
`the deputies, he had no supervisory responsibilities.
`From the very beginning of his job, Garbutt’s unofficial
`duties included Elgin’s political campaign work. Because he
`understood that he should not perform political work at the
`Township Office, he initially completed these tasks at his
`home. But he soon began to also engage in political tasks at the
`office, where blurring the line between political work and
`office duties was the norm under Elgin’s leadership. Ironically,
`Garbutt had drafted in 2005 the official Trustee’s Office policy
`prohibiting political activities during Township hours and on
`Township property. Each employee, including Garbutt, was
`required to read and sign that policy. The policy warned that
`violations would lead to disciplinary action up to and includ‐
`ing termination.
`In addition to Garbutt, Elgin also hired her friend Ethel
`Shelton as a financial clerk, and in 2006, elevated her to the
`post of administrative assistant. Shelton’s job responsibilities
`included the usual secretarial tasks such as answering phones,
`filing, handling mail, and assisting clients at Elgin’s direction,
`especially when Elgin was unavailable to do so herself.
`Although Elgin directed Shelton to perform secretarial tasks
`for Garbutt whenever he asked for assistance, Garbutt did not
`supervise Shelton and he rarely made use of her services.
`Like Garbutt, Shelton had unofficial responsibilities related
`to Elgin’s campaign work. Elgin held three fundraisers a year:
`the Extravaganza event, with ticket prices of $100 each; the
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`Prayer Breakfast, run by Women for Elgin, with more modestly
`priced $30 tickets; and a Mardi Gras event held by a men’s
`group known as Elgin’s Eagles, with $15 tickets. Tickets for
`these events were sold to the public at large, to Township
`vendors, and to employees of the Trustees’ Office. Elgin
`determined how many tickets each employee would be
`expected to purchase based on each employee’s salary, and
`Shelton packaged the tickets (sometimes with Garbutt’s help)
`into envelopes labeled with each employee’s name. Elgin
`directed the deputies to distribute the tickets to the employees
`who reported to them. The prior Trustee had expected employ‐
`ees to provide a 2% kickback of their salaries in support of his
`campaigns; Elgin abolished that program and instead sought
`“voluntary” ticket purchases from employees. Many employ‐
`ees bought the tickets or sold them to others, and some also
`volunteered to work at Elgin’s campaign events. Payments for
`the tickets were sometimes returned to the deputies, and
`sometimes given directly to Shelton or left on her office chair.
`At Elgin’s direction, Shelton kept track of ticket purchases,
`noting names and amounts for campaign reporting purposes,
`and for Elgin’s use otherwise. During Elgin’s terms in office, a
`property tax cap resulted in severe budget cuts to the Office,
`and consequently, the number of employees working in the
`Trustee’s Office was significantly reduced. Some employees
`testified that they purchased the tickets in the belief that
`support of Elgin’s campaigns would spare them from the
`layoffs occasioned by budgetary constraints.
`As Elgin completed her third and final term as Trustee,
`Shelton and her co‐defendant Alex Wheeler, who was a
`deputy, both decided to run for positions on the Township
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`No. 19‐3388
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`Board, which would have provided them with oversight
`responsibilities over the Trustee’s Office. As she had done with
`Elgin’s campaigns, Shelton performed some of her campaign
`work at the Trustee’s Office. Although she testified that she
`limited campaign work for Elgin and for herself to her lunch
`hour, approved break periods, and the hours before and after
`the official workday, there was evidence that she performed
`campaign work during times that she was on the clock for the
`Trustee’s Office, sometimes using the resources of that Office,
`including computers and printers.
`At or near the time that Garbutt decided to become a
`government informant, he had a falling out with Elgin. At a
`meeting with Elgin’s inner circle, Elgin and Garbutt had a “tiff”
`in which Elgin “might have” called him a “dumb
`motherf****r,” and he “might have” called her vulgar names as
`well. R. 257, at 265. Elgin demoted Garbutt, docked his salary
`$15,000, barred him from attending meetings with the depu‐
`ties, and took away his government car, which was the only car
`he had at the time. Garbutt decided to send an anonymous
`letter to a local newspaper accusing Elgin of unlawful conduct.
`The newspaper apparently ignored this letter, so Garbutt next
`tried the United States Attorney’s office, again with an anony‐
`mous letter.1 When that letter also produced no results, he
`went in person to the United States Attorney’s office to
`complain about Elgin. That office referred him to the FBI.
`
`1 At trial, Garbutt first denied sending an anonymous letter to the United
`States Attorney’s office, R. 257, at 207, and then admitted doing so when
`shown the letter. R. 257, at 271–72.
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`No. 19‐3388
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`Garbutt wasted no time with the referral, calling FBI Agent
`Nathan Holbrook from the parking lot of the United States
`Attorney’s office. He met with Holbrook a few days later.
`Garbutt brought with him an envelope full of campaign
`documents, programs and brochures that he told Holbrook
`were created with Township resources on Township time.
`Garbutt knew that this was so because he was the person who
`had created the campaign materials on Township time, using
`Township resources.
`Garbutt told Agent Holbrook that he came forward with
`these accusations against Elgin and his co‐workers in part
`because he had learned of charges against another local official,
`George Van Til, for similar conduct. Van Til, an elected County
`Surveyor, faced federal charges for using his office and his
`employees to run his re‐election campaign. The meeting
`convinced Holbrook to open an investigation. Holbrook asked
`Garbutt if he would be willing to provide additional evidence
`and potentially record his co‐workers. Garbutt agreed to do so.
`Holbrook ran a criminal background check on Garbutt, and
`began directing him to collect documents from the offices of
`his co‐workers. Ultimately, Agent Holbrook provided Garbutt
`with a sophisticated, concealed recording device. At Agent
`Holbrook’s direction, Garbutt eventually provided to the FBI
`more than one hundred recordings and a large number of
`documents that he gathered from the offices of his co‐workers.
`We will detail the facts surrounding Garbutt’s collection of that
`evidence in our discussion below assessing the propriety of his
`actions and those of Agent Holbrook. The information and
`evidence that Garbutt collected was then used to obtain a
`warrant to search the offices of the Trustee. And the evidence
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`No. 19‐3388
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`obtained from that search warrant in turn provided the basis
`for federal charges against Elgin, her son Steven Hunter (who
`was also her employee), Shelton, and Wheeler. Elgin and her
`son pled guilty. Shelton and Wheeler went to trial, where
`information obtained as a result of the search warrant was
`entered into evidence. Shelton faced two counts at trial:
`conspiracy to commit wire fraud, in violation of 18 U.S.C.
`§§ 1343 and 1349; and conspiracy to commit honest services
`wire fraud, in violation of 18 U.S.C. §§ 1343, 1346 and 1349.
`After initially deadlocking, the jury acquitted Wheeler but
`convicted Shelton on both counts.
`During the trial, it became apparent to Shelton’s lawyer that
`Garbutt, acting as a government agent, had searched Shelton’s
`office without a warrant and provided copies of documents
`that he found there to Holbrook. Shelton immediately moved
`for a mistrial, asserting violations of the Fourth Amendment as
`well as violations of the government’s obligations under Brady
`v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405
`U.S. 150 (1972). The court took the motion under advisement.
`At the conclusion of the government’s case‐in‐chief, Shelton
`moved for a directed verdict on the grounds of insufficiency of
`the evidence. The court denied that motion. After trial, the
`court directed the parties to brief the issues raised in the
`motion for a mistrial. Shelton asserted that the government
`engaged in prosecutorial misconduct when it instructed its
`informant to engage in a warrantless search for documents in
`areas over which the informant lacked any authority or consent
`to search. She also asserted that she could not have raised her
`objections earlier because the government failed to reveal the
`relevant facts until the trial itself. The government opposed
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`No. 19‐3388
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`Shelton’s motion on the grounds that: (1) the objection to the
`search was raised too late; (2) Garbutt’s collection of docu‐
`ments was not improper; and (3) the warrant that produced the
`evidence admitted at trial would have been granted even if
`references to the challenged documents had been excluded
`from it. The court rejected the government’s assertion that
`Shelton was late in raising her objection, but ultimately denied
`Shelton’s motion, concluding that she lacked a reasonable
`expectation of privacy in the areas searched by Garbutt. The
`court also concluded that the warrant would have been issued
`even with the offending materials excised from the warrant
`application. Shelton appeals.
`
`II.
`In addition to challenging the district court’s denial of her
`motion for a mistrial on Fourth Amendment grounds, Shelton
`also challenges the sufficiency of the evidence on both the
`conspiracy to commit honest services wire fraud count and the
`conspiracy to commit wire fraud count. We review the denial
`of the motion for a mistrial for an abuse of discretion. United
`States v. Hilliard, 851 F.3d 768, 778 (7th Cir. 2017). A decision
`that rests on an error of law is always an abuse of discretion.
`Brock‐Miller v. United States, 887 F.3d 298, 304 (7th Cir. 2018);
`United States v. Simon, 727 F.3d 682, 696 (7th Cir. 2013). Incor‐
`porated in Shelton’s motion for a mistrial is a motion to
`suppress the items that Garbutt seized from Shelton’s work
`area and to suppress the evidence that was collected pursuant
`to a warrant that was based on the items that Garbutt collected.
`In reviewing the denial of a motion to suppress, we review
`findings of fact for clear error and questions of law de novo.
`United States v. Wanjiku, 919 F.3d 472, 479 (7th Cir. 2019); United
`
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`No. 19‐3388
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`States v. Velazquez, 906 F.3d 554, 557 (7th Cir. 2018). We review
`de novo a challenge to the sufficiency of the evidence, determin‐
`ing only whether any rational trier of fact could have found the
`essential elements of the crime beyond a reasonable doubt
`when viewing the evidence in the light most favorable to the
`government. United States v. Cherry, 920 F.3d 1126, 1133 (7th
`Cir. 2019); United States v. Stewart, 902 F.3d 664, 679 (7th Cir.
`2018); United States v. Webster, 775 F.3d 897, 904–05 (7th Cir.
`2015).
`
`A.
`Shelton argues the district court abused its discretion when
`it denied her motion for a mistrial, which was based on a
`violation of her Fourth Amendment right to be free from
`unreasonable searches and seizures, and on the government’s
`violation of its obligations under Brady and Giglio. The court
`erred, Shelton argues, when it concluded that she lacked any
`reasonable expectation of privacy in her office. The information
`that Garbutt collected from her office was then used to support
`an application for a warrant that authorized a search of the
`entire Trustee’s office, resulting in the collection of evidence
`that was admitted at trial. Shelton contends that the evidence
`introduced at trial was the fruit of the poisonous tree (the
`initial warrantless search by Garbutt), and should have been
`suppressed. Moreover, Shelton contends, the government was
`obligated under Brady and Giglio to reveal to Shelton prior to
`trial that Agent Holbrook had directed Garbutt, acting as an
`agent of the government, to engage in a warrantless and
`unlawful search of her office. The government counters that
`Shelton failed to demonstrate that she had a reasonable
`expectation of privacy in her office and desk from an intrusion
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`No. 19‐3388
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`by Garbutt or by anyone else. The government also contends
`that the warrant that led to the discovery of the evidence
`admitted at trial would have been issued even in the absence
`of the information gleaned from Garbutt’s collection of
`documents from Shelton’s desk. The evidence admitted at trial
`was therefore not the fruit of the poisonous tree, the govern‐
`ment maintains.
`During Garbutt’s testimony, Shelton’s counsel learned for
`the first time that Garbutt had searched2 Shelton’s office (as
`well as Elgin’s office and a storage room where Shelton kept
`some files) at the direction of Agent Holbrook. That revelation
`was followed by an admission by Agent Holbrook that Garbutt
`was acting as a government agent when he conducted those
`searches, that Holbrook himself had directed the searches, and
`that Holbrook had not secured a warrant prior to directing
`Garbutt to conduct the searches. In the district court, the
`government conceded that, if the court concluded that Shelton
`had a reasonable expectation of privacy in her office, no
`exception to the warrant requirement existed that would have
`permitted Garbutt to enter her office. R. 234, at 11–12, n.6. This
`
`2 The word “search” is a term of art in Fourth Amendment analysis.
`Generally, if the person objecting to a government intrusion lacks a
`reasonable expectation of privacy in the area examined, we conclude that
`no “search” has occurred for Fourth Amendment purposes. We use the
`word here as shorthand for Garbutt’s actions because, as we conclude
`below, Shelton did in fact have a reasonable expectation of privacy in her
`office against intrusions by Garbutt and others. See United States v. Correa,
`908 F.3d 208, 217 (7th Cir. 2018) (a court determines whether a search has
`occurred for Fourth Amendment purposes based on the existence of a
`reasonable expectation of privacy).
`
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`No. 19‐3388
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`concession continues on appeal, and so the determinative
`question is whether Shelton had a reasonable expectation of
`privacy in her office.
`
`1.
`We turn to the facts related to Garbutt’s retrieval of
`documents from Shelton’s desk and other areas of the office.
`After Garbutt testified at trial that he entered the offices of his
`co‐workers and collected documents at Agent Holbrook’s
`direction, both the government and Shelton’s counsel explored
`the circumstances of the document collection during Agent
`Holbrook’s testimony. In direct examination, Agent Holbrook
`acknowledged that when Garbutt was acting on behalf of the
`FBI in recording conversations, the rules regarding the collec‐
`tion of evidence that applied to Agent Holbrook also applied
`to Garbutt. R. 258, at 10–11. Defense counsel later questioned
`Agent Holbrook regarding the circumstances under which
`Garbutt collected documents from his co‐workers’ offices:
`Q. And did he [Garbutt] bring you documents that
`he took out of other people’s offices?
`A. Yes.
`Q. And did you accept those documents?
`A. Yes.
`Q. Did you ask Mr. Garbutt to do that?
`A. Yes.
`Q. So he was acting as a law enforcement agent
`when he searched the offices of the Calumet
`Township?
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`No. 19‐3388
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`A. Yes.
`Q. Now, you’re aware of the requirements for a
`warrant?
`A. Yes.
`Q. And did you seek a warrant before you allowed
`Mr. Garbutt to go search the offices of the Calu‐
`met Township?
`A. No.
`R. 258, at 70.
`Agent Holbrook explained that he took this course of action
`based on his belief that Garbutt had a right of access to these
`offices, and that he could therefore gather anything that was in
`plain view in these spaces. As we will discuss below, Agent
`Holbrook defined “right of access” as the “right to be there and
`the knowledge that he routinely goes there without the
`individuals being there. That was the big factor.” R. 258, at 181.
`The primary basis for Agent Holbrook’s belief that Garbutt had
`the right to access his co‐workers’ offices when they were not
`present came from Garbutt himself. Garbutt apparently told
`Agent Holbrook that he signed the time‐keeping sheet in
`Shelton’s office, sometimes before she arrived at the office.
`Agent Holbrook also testified that Garbutt told him that he
`“had permission to go in those offices and that he routinely
`went in those offices,” and that “the individuals knew that he
`did so.” R. 258, at 181–82. Rather than seeking the assessment
`of a neutral magistrate as to the appropriateness of sending
`Garbutt in to search those offices, Agent Holbrook took
`Garbutt at his word, and decided that he could direct Garbutt
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`to enter Shelton’s office when she was not present and copy
`any documents in plain view. The government asserts that
`Holbrook’s assessment was lawful because Shelton lacked any
`reasonable expectation of privacy in her office.
`Testimony at trial established that the Trustee’s Office
`occupied four buildings, including a three‐story office building
`that served as the main office of the Calumet Township
`Trustee; a north annex; a multipurpose center; and a service
`office. The north annex was used for commercial purposes and
`Township business. The multipurpose center housed a
`women’s shelter and was also used for residents in need
`during times of extreme heat or cold. It also contained adminis‐
`trative offices, a large meeting room and space that was rented
`out for community functions. The main office building housed
`most of the high‐level administrators of the Trustee’s Office.
`Mary Elgin’s office was on the third floor of the main office
`building. Elgin’s square‐shaped office suite could be entered
`through double doors near the elevator. Those doors led to a
`large open area. Within this open space was a seating area for
`Elgin’s visitors. Beyond the visitor’s area (to the right of the
`double doors) was a door to Shelton’s office. Straight across
`from the double doors was a conference room. To the right of
`the conference room, in the back right corner, was Elgin’s
`office. Elgin’s office had three entrances: one directly from the
`large open area; one from the conference room; and one from
`Shelton’s office. On the other side of the double doors, past the
`elevator and across a wide corridor from the offices of Shelton
`and Elgin was Garbutt’s office. R. 257, at 56–58. Only one other
`employee, switchboard operator Laura McFarland, worked on
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`No. 19‐3388
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`the third floor. McFarland sat at a desk in the open area in
`Elgin’s suite, outside of Shelton’s office.
`Garbutt had a key to the building that allowed him to enter
`before the usual 8 a.m. start of the business day at the Trustee’s
`Office.3 He did not have keys to the individual offices within
`the building, but offices on the third floor were not typically
`locked in the evening. When the doors to Elgin’s suite opened,
`a chime would sound to alert the occupants that someone was
`coming in. R. 257, at 107. All employees were required to mark
`a time‐keeping sheet indicating their arrival and departure
`from the office. The time‐keeping sheet for Garbutt was kept
`in Shelton’s office, and on days when he arrived in the office
`before Shelton, he would enter Shelton’s empty office to sign
`the sheet.4 Garbutt also visited Shelton in her office on a
`regular basis, sometimes two or three times a day. Garbutt
`sometimes passed Shelton’s office on his way to visit Elgin.
`Other employees of the Trustee’s Office sometimes entered
`Shelton’s office when she was not present in order to drop off
`
`3 The regular hours for employees of the Trustee’s Office were 8 a.m. to
`4 p.m., although Elgin allowed variations of this schedule. Garbutt opted to
`sometimes begin his workday early.
`
`4 The record does not indicate where in Shelton’s office the time‐keeping
`sheet (which the parties also refer to as a “sign‐in sheet”) was kept. Among
`the materials that Garbutt supplied to Agent Holbrook were photographs
`of Shelton’s desktop. No sign‐in sheet is visible in any photograph of
`Shelton’s desk. However, in other photographs of a table immediately
`inside of Shelton’s office door, a clipboard with paper and a pen is visible,
`the only object resembling a sign‐in sheet anywhere in the record on appeal.
`The record does not definitively resolve the location of the sign‐in sheet
`within Shelton’s office.
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`No. 19‐3388
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`items for her on her chair. For example, testimony indicated
`that employees who purchased fundraising tickets for Elgin’s
`events sometimes handed the payments directly to Shelton or
`left the payments on her office chair if she happened to be
`absent at the moment.
`That said, Shelton’s office was her own private, fully‐
`enclosed work space: although business invitees visited it for
`limited purposes (including in her absence), she did not share
`her office or her desk with anyone else. She had a door, and
`she used it to exercise her right to exclude co‐workers and
`visitors from her office. Indeed, one of the documents that
`Garbutt delivered to Agent Holbrook during his evidence
`collection efforts was an email from Shelton “to all staff of the
`Calumet Township on December 10, 2013 advising that her
`door will be closed during work hours for more privacy.”
`R. 234‐5, at 10. Shelton was the sole occupant of her office for
`more than seven years, and as is apparent from the documents
`that Garbutt collected and the photographs that he took, she
`kept personal, non‐work‐related items in her office. On at least
`one occasion when Garbutt was visiting Shelton in her office,
`another employee came to visit, and Shelton turned papers
`face‐down on her desk so that the visitor could not see them.
`When Garbutt visited Shelton in her office, he normally
`knocked before entering. Tr. Ex. 13T (described and quoted at
`R. 234, at 16–17).
`
`2.
`Shelton, as the defendant objecting to the search, bears the
`burden of proving a legitimate expectation of privacy in the
`area searched. United States v. Pitts, 322 F.3d 449, 456 (7th Cir.
`
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`No. 19‐3388
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`2003). “[A] Fourth Amendment search occurs when the
`government violates a subjective expectation of privacy that
`society recognizes as reasonable.” Kyllo v. United States, 533
`U.S. 27, 33 (2001). See also Pitts, 322 F.3d at 456 (same). The
`Supreme Court has recognized repeatedly that employees may
`have a reasonable expectation of privacy in the workplace:
`Within the workplace context, this Court has recog‐
`nized that employees may have a reasonable expec‐
`tation of privacy against intrusions by police. … As
`with the expectation of privacy in one’s home, such
`an expectation in one’s place of work is “based upon
`societal expectations that have deep roots in the
`history of the Amendment.”
`O’Connor v. Ortega, 480 U.S. 709, 716–18 (1987) (quoting Oliver
`v. United States, 466 U.S. 170, 178, n.8 (1984)). For example, the
`Court held that a union employee who shared an office with
`other union employees had a privacy interest in the office
`sufficient to challenge the warrantless search of that office:
`It has long been settled that one has standing to
`object to a search of his office, as well as of his home.
`… [I]t seems clear that if DeForte had occupied a
`‘private’ office in the union headquarters, and union
`records had been seized from a desk or a filing
`cabinet in that office, he would have had standing.
`… In such a ‘private’ office, DeForte would have
`been entitled to expect that he would not be dis‐
`turbed except by personal or business invitees, and
`that records would not be taken except with his
`permission or that of his union superiors.
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`No. 19‐3388
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`Mancusi v. DeForte, 392 U.S. 364, 369 (1968).
`Like private employees, government employees may also
`have a reasonable expectation of privacy in their offices,
`depending on the surrounding circumstances:
`Given the societal expectations of privacy in one’s
`place of work expressed in both Oliver and Mancusi,
`we reject the contention … that public employees
`can never have a reasonable expectation of privacy
`in their place of work. Individuals do not lose
`Fourth Amendment rights merely because they
`work for the government instead of a private em‐
`ployer. The operational realities of the workplace,
`however, may make some employees’ expectations
`of privacy unreasonable when an intrusion is by a
`supervisor rather than a law enforcement official.
`Public employees’ expectations of privacy in their
`offices, desks, and file cabinets, like similar expecta‐
`tions of employees in the private sector, may be
`reduced by virtue of actual office practices and
`procedures, or by legitimate regulation. Indeed, in
`Mancusi itself, the Court suggested that the union
`employee did not have a reasonable expectation of
`privacy against his union supervisors. … The em‐
`ployee’s expectation of privacy must be assessed in
`the context of the employment relation. An office is
`seldom a private enclave free from entry by supervi‐
`sors, other employees, and business and personal
`invitees. Instead, in many cases offices are continu‐
`ally entered by fellow employees and other visitors
`during the workday for conferences, consultations,
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`No. 19‐3388
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`19
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`and other work‐related visits. Simply put, it is the
`nature of government offices that others—such as
`fellow employees, supervisors, consensual visitors,
`and the general public—may have frequent access to
`an individualʹs office. We agree … that “[c]onstitu‐
`tional protection against unreasonable searches by
`the government does not disappear merely because
`the government has the right to make reasonable
`intrusions in its capacity as employer,” … but some
`government offices may be so open to fellow em‐
`ployees or the public that no expectation of privacy
`is reasonable. … Given the great variety of work
`environments in the public sector, the question
`whether an employee has a reasonable expectation
`of privacy must be addressed on a case‐by‐case
`basis.
`O’Connor, 480 U.S. at 716–18 (plurality opinion).
`In O’Connor, the Court ultimately concluded that a govern‐
`ment doctor had a reasonable expectation of privacy in his
`hospital office, desk and filing cabinets because he did not
`share his desk or filing cabinets with any other employees; he
`had occupied his office for seventeen years; he kept materials
`in his office unrelated to his work such as personal correspon‐
`dence, personal financial records and personal gifts and
`mementos; and the hospital had no policy discouraging
`employees from storing personal papers and effects in their
`
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`No. 19‐3388
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`desks or file cabinets. O’Connor, 480 U.S. at 718–19.5 Similarly,
`in Mancusi, the Court found that DeForte had Fourth Amend‐
`ment standing to object to the government seizure of records
`from his union office even though his office consisted of a large
`room that he shared with several other union officials, and
`even though the records were taken from a part of the office
`that was not reserved for DeForte’s exclusive use, because
`DeForte spent a considerable amount of time in the office, and
`he had custody of the papers at the moment of their seizure.
`Mancusi, 392 U.S. at 368–69.
`
`3.
`The d