Appellate Court holds that Defendant Had a Reasonable Expectation of Privacy in her Office

June 8, 2021

The Seventh Circuit Court of Appeals recently reversed the jury convictions of Ethel Shelton, the administrative assistant to former Calumet Township Trustee Mary Elgin, in a high-profile political corruption case, United States v. Shelton. This case involved the FBI’s use of an informant to obtain documents used against the defendant and propriety of how the documents were obtained. If a person objecting to governmental intrusion lacks a reasonable expectation of privacy in the area examined, a court will conclude that there was no “search” for Fourth Amendment purposes. The determinative question was whether the defendant had a reasonable expectation of privacy in her office against the intrusions of other, which the court answered in the affirmative. The court concluded that the district court erred when it found that the defendant lacked a reasonable expectation of privacy in her office and that the district court should have granted the defendant’s motion to suppress evidence and for mistrial on charges of conspiracy to commit wire fraud and conspiracy to commit honest services wire fraud.

The defendant’s charges arose out of her alleged performance of campaign work on her own behalf while on the clock for a government job. The defendant filed a trial motion to suppress documents an FBI informant gathered from the defendant’s office without a warrant and at the direction of the FBI agent. In denying the motion, the district court found that the defendant did not have a reasonable expectation of privacy in her office. However, the Seventh Circuit concluded that facts supported the defendant had a reasonable expectation of privacy and thus the search was unreasonable.

The record showed that the informant was acting as a government agent when searching defendant’s office without a warrant and that the FBI agent directed the informant to search based on the mistaken belief that informant had the right of general access to the defendant’s office and could gather anything in plain view. The informant’s access to the defendant’s office was limited to signing in and out with timesheets in the defendant’s office. The defendant had a reasonable expectation of privacy as shown by the defendant’s office being enclosed with a door, which the defendant used to exclude co-workers and others from her office; that the defendant was the sole occupant of her office for more than seven years; that she kept personal and non-work related items in her office; that the informant would knock before entering the defendant’s office; and that on at least one occasion, the defendant turned papers down so visitors could not see them. There was no evidence that the informant collected documents the defendant knowingly exposed to him when he was in the defendant’s office as a business invitee for an expected and authorized purpose. The informant searched in the early morning before normal business hours and others arrived at the office. Accordingly, the document gathered by the informant should have been excluded along with other evidence obtained pursuant to the warrant that was issued relying on information contained in documents obtained through the informant’s improper search of the defendant’s office.

The evidence used by prosecutors against the defendant was tainted by the illegal search. Probable cause must come before the search and cannot be established retroactively by the results of the search. This case indicates the caution to be exercised in conducting warrantless searches and to ensure that enough facts are known to determine right of access in the workplace. Fourth Amendment precedent is clear that the reasonable expectation of privacy extends not just to the home, but to an employee’s private office as well. Whether an employee has a reasonable expectation of privacy is determined on a case-by-case basis.

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