order denying motions to suppress and dismiss - University of Illinois ...

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 purposes. Because there was no reasonable expectation of privacy in the area searched, none of the Defendants can claim the protection of the Fourth Amendment and therefore, none of them have standing to challenge the “search” th that occurred on March 24, 2005. U.S. v. Paopao, 469 F.3d 760, 764 (9 Cir. 2006). “A privacy interest in the place or thing searched is always required in order for a defendant to challenge the search.” Id. at 765. The preponderance of the evidence establishes that the door off the main hallway to the secondary hallway in which the boxes were located was not equipped with a lock and therefore, access to the secondary hallway by the public 2 and other building tenants was not restricted. Defendants Markishtum and Hensley testified the door did have a lock at one period of time, and that the lock must have been subsequently removed. They are not as credible as the witnesses who testified the door was not equipped with a lock. In this regard, the court notes the conflicting statements Markishtum provided as to when she last saw the boxes in the hallway, as well as her admission to the use of aliases, and her admission that she falsely represented to the public that in her employment with OTAC (Official Transcript Archive Center), she was physically located in Delaware. Hensley has pled guilty to Count 1of the Indictment charging her with Conspiracy To Commit Wire Fraud and Mail Fraud. Hensley acknowledged telling Safeco Special Investigator Traci Johnson in an interview on July 7, 2005 that “[A]s far as I know,” there was a keyed entry from the outside of the door. Hensley also admitted that as a result of coaching from Dixie Randock prior to the interview, 2 The burden of proof on the government in a suppression hearing is preponderance of the evidence since guilt or innocence is not being determined. U.S. v. Matlock, 415 U.S. 164, 178 n. 14, 94 S.Ct. 988 (1974), citing Lego v. Twomey, 404 U.S. 477, 488-89, 92 S.Ct. 619 (1972). ORDER DENYING MOTIONS TO SUPPRESS AND DISMISS - 6
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 she was evasive with Johnson and indeed, told her several falsehoods. Defendant Steven Randock testified that in late July or early August 2004, he inspected Suite 8B and at that time, he looked inside the subject hallway “briefly” and noticed a “twisty type” lock on the interior of the door leading into the main hallway. He acknowledges he spent only a total of roughly ten minutes inspecting Suite 8B before subsequently signing a lease for Suite 8B. Mr. Randock testified he subsequently visited Suite 8B approximately five times prior to May 31, 2005, but 3 on those occasions he never looked inside the interior of the subject hallway. There were no signs on or around the door to the secondary hallway indicating access by the public was restricted. The Defendants did not exercise control over access to the hallway. The hallway was a common area and did not qualify as “business curtilage” of Suite 8B. The hallway was not part of the leased space of Suite 8B. Furthermore, the court finds credible the testimony of Agent Nierinckx that he found the hallway door partially open on March 24, 2005, 4 although even had the door been closed, that would not have created a reasonable expectation of privacy in a hallway area that was located behind an unlockable door in a commercial building readily accessible to the public, as well as to other tenants in the building. It is noted that all of the Defendants who worked in Suite 8B and/or who had placed material in the hallway either knew or had reason to know that other tenants in the building had ready access to the area, inasmuch as miscellaneous furniture and other materials were stored therein. Without a reasonable expectation of privacy in the hallway, the Defendants did not have a reasonable expectation of privacy in the contents of the boxes, 3 Defendant Dixie Randock testified that she had not visited Suite 8B prior to the May 31, 2005 meeting with Detectives Beck and Tafoya. 4 This testimony was corroborated by the testimony of Agent Greg Ross. ORDER DENYING MOTIONS TO SUPPRESS AND DISMISS - 7
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order denying motions to suppress and dismiss - University of Illinois ...

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