by Anthony W. Accurso

The U.S. Court of Appeals for the Seventh Circuit held that a coworker cannot conduct limitless searches of a defendant’s work area at the direction of a government agent, simply because he could physically access the office.

Ethel Shelton worked as the administrative assistant to Mary Elgin, the Trustee of Calument Township in Indiana from 2002 to 2014. Stafford Garbutt essentially ran Elgin’s three successful campaigns for the Office of Trustee and was given special employment in the office, including a position created for him with limited responsibilities, a government car, and a $60,000 annual salary.

Near the end of Elgin’s third term in office, she and Garbutt had a falling out at a meeting of Elgin’s “inner circle” where she “might have” called him a “dumb motherf****r,” according to testimony. Elgin docked Garbutt’s salary by $15,000, barred him from meetings, and took away his government car, which was his only transportation.

Garbutt then made contact with FBI Agent Nathan Holbrook, claiming that he participated in a conspiracy led by Elgin and including Shelton, to use county resources (printing supplies and county employee labor) to benefit Elgin’s political campaigns.

Garbutt, as a participant in the conspiracy, could not provide testimony sufficient to support a search warrant of Elgin’s offices, so Holbrook directed Garbutt to search Elgin and Shelton’s offices for incriminating documents. Garbutt was also equipped with a recording device.

After Garbutt made copies of several documents obtained from Elgin and Shelton’s offices, Holbrook obtained a warrant to search the offices. Elgin took a plea deal in the ensuing prosecution, but Shelton proceeded to trial. Mid-way through the trial, Shelton learned Garbutt had searched her office at the direction of Holbrook prior to the issuance of the search warrant.

Shelton was convicted but filed a motion for mistrial based on the illegal searches performed by Garbutt at Holbrook’s direction. The U.S. District Court for the Northern District of Indiana denied the motion, and Shelton appealed.

“[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 (2001). The Court noted that “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 (7th Cir. 2003). “[E]mployees may have a reasonable expectation of privacy against intrusions by police.” O’Connor v. Ortega, 480 U.S. 709 (1987). This protection extends to government employees, though “[g]iven 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.” Id.

The district court, after receiving testimony and evidence regarding Shelton’s work environment, characterized it as “a monitored, high-traffic area subject to random searches” because it was “so open to fellow employees or the public that no expectation of privacy [was] reasonable.”

The Seventh Circuit found fault with this characterization on several grounds. The Court drew attention to the layout of the offices. Shelton had her own office with a door. Visitors to Elgin’s offices had a separate waiting room and direct access to Elgin’s office through a door from the waiting room. Visitors to Shelton’s office—including Garbutt—often knocked before being invited in. Elgin, Shelton, and Gabutt were the only employees with offices on that floor, and the CCTV monitoring of the area was limited to entrances and exits. Only Elgin had access to view this. For these reasons, the Court found that the testimony at trial failed to support the district court’s characterization of Shelton’s work space, which undermined its finding that she lacked a reasonable expectation of privacy in her work area.

Garbutt was permitted to access Shelton’s office to sign into work, and he often did so before Shelton (or anyone else) arrived at work. This was frequently when he obtained the documents at the behest of Holbrook. Yet signing in was his only approved purpose in her office as she had not invited him in for any other purpose. “[A]n entry by an undercover agent is not illegal if he entered for the very purpose contemplated by the occupant.” United States v. Ressler, 536 F.2d 208 (7th Cir. 1976).

The Government claimed that Garbutt could access documents in plain view on Shelton’s desk when he was in the office signing into work. Holbrook testified about the “training” he provided to Garbutt regarding his authority to search his coworker’s offices. “He is permitted to search—I should say, to obtain items that were located in areas that he had known access to and that were in plain view.” And “[b]y access, I mean a right to be there without the individuals being there.”

However, the Court noted the sign-in sheet was not on Shelton’s desk; it was on a table just inside the office entrance. Garbutt had no legitimate, pre-authorized purpose to access the contents of document on Shelton’s desk, according to the Court.

“Taking action, unrelated to the objectives of the authorized intrusion, which exposed to view concealed portions of the [space] or its contents, did produce a new invasion of respondent’s privacy unjustified by the … circumstances that validated the entry.” Arizona v. Hicks, 480 U.S. 321 (1987). Apply that reasoning to the present case, the Court determined that Garbutt exceeded his authorization by inspecting items on Shelton’s desk, stating: “Garbutt was a business invitee who accessed [Shelton’s office] for limited purposes, such as signing the timekeeping sheet…. He far exceeded the lawful scope of his access when he entered Shelton’s office outside of business hours, without legitimate justification, and conducted a general search of everything visible within the space.” Further, the Court observed that Garbutt denied being Shelton’s supervisor, or holding any other workplace title, that would allow him unrestricted access to Shelton’s workspace.

After determining that Garbutt illegally obtained documents from Shelton’s workspace in violation of her Fourth Amendment rights, the Court further decided that the warrant later obtained by Agent Holbrook could not have been issued absent the probable cause provided by the illegally seized documents. And as “[t]he remaining evidence cannot be fairly described as overwhelming,” the Court held Shelton was denied a fair trial.

Accordingly, the Court vacated her conviction, ordered the suppression of the evidence obtained from the search authorized by the warrant, and remanded for further proceedings consistent with its opinion. See: United States v. Shelton, 997 F.3d 749 (7th Cir. 2021). 

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