United States v. Brown

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

vs. ) Case No. 23 C 50312

)

FLOYD BROWN, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

On April 8, 2022, after a two-week trial, a jury found Floyd Brown guilty of

second-degree murder of a federal officer under 18 U.S.C. §§ 1111 and 1114(1) and

various other related charges in the superseding indictment against him. On August 29,

2022, the Court sentenced Brown to a prison term of fifty-five years, followed by a five-

year term of supervised release. Brown did not appeal his conviction or sentence. On

August 28, 2023, Brown filed a pro se motion under 28 U.S.C. § 2255 to vacate, set

aside, or correct his sentence. He argues that his trial counsel's failure to file a motion

to suppress evidence amounted to ineffective assistance of counsel. For the following

reasons, the Court denies Brown's motion.

Background

The background of this case dates back to December 2018, when the

Bloomington, Illinois Police Department (BPD) was investigating a series of residential

burglaries. On December 23, 2018, BPD officers found Brown, whom they had

identified as their prime suspect, allegedly in the midst of another residential burglary.

Brown fled from the scene before BPD could arrest him.

On or about December 26, 2018, a McLean County Circuit Court judge issued an

arrest warrant for Brown on charges arising from three residential burglaries in

Bloomington. Five days later, the Illinois Department of Corrections also issued an

arrest warrant for Brown for violating the terms of his parole. Shortly after these arrest

warrants were issued, deputy U.S. marshals with the Great Lakes Regional Task Force

began working with local law enforcement to locate and detain Brown.

In January 2019, deputy marshals interviewed Brown's former girlfriend

(Individual A) for information on his whereabouts. Individual A informed them that she

and Brown were no longer in a relationship and that Brown had a new girlfriend, whom

she identified as "Dri." Individual A also identified a Facebook profile that she said was

used by "Dri," and she said that Brown and "Dri" were likely together. Law enforcement

subsequently identified "Dri" as Drianna Wright "based on a comparison of known

photographs of Wright with photographs posted on 'Dri's' Facebook account." Gov't's

Resp. to Def.'s § 2255 Mot. at 3.

Deputy marshals also searched for Brown at his son's residence in early January

2019. While there, they questioned the son about Brown's whereabouts and were

"advised that [Brown] and Wright had previously been staying with him and his

girlfriend, but that [Brown] and Wright had not been there in weeks." Id.

Based on this information, law enforcement expanded its search to include

Wright. On or about January 18, 2019, deputy marshals received information from

Amtrak that Wright had booked a bus trip from Rockford to Chicago, followed by a train

trip from Chicago to Springfield, for January 17, 2019 and a return trip for January 18,

2019. Records indicated, however, that Wright had not boarded the bus or the train.

Amtrak also provided the phone number and e-mail address used for the booking. This

phone number was 314-xxx-9123 (the -9123 phone).

On February 5, 2019, law enforcement obtained from a McLean County judge a

search warrant for "historical call, text, and data detail records and historical location

information for the -9123 phone." Id. Utilizing historical cell site location information

(CSLI) obtained via this warrant, law enforcement learned that the -9123 phone had

been pinging off cell towers located on the east side of Rockford. Call records from the

phone indicated calls made to a bus company, Amtrak, and multiple Rockford

businesses. Notably, the records showed two calls made to an 800-number for the

hotel brand Extended Stay America. The call records did not indicate that any other

hotels were contacted. These findings were compiled and discussed by law

enforcement on March 4, 2019.

On March 4, 2019, a McLean County judge issued a search warrant for "the

installation, use, and monitoring of a pen register and trap and trace device and the

obtaining of historical and prospective location information for the -9123 phone." Id. at

4–5. Law enforcement served the phone service provider with the warrant on March 5

and began receiving real-time location information and pen register and trap and trace

data around 7:00 p.m. that same evening. This information was consistent with location

information obtained from the February warrant; pings for the -9123 phone indicated

that it was located on the east side of Rockford near the I-90 interchange. Based on the

information obtained from the two warrants, law enforcement planned to search for

Brown at the Extended Stay America hotel in Rockford on the morning of March 7

"assuming that overnight ping data did not point in another direction." Id. at 5.

On the morning of March 7, 2019, updated information from the -9123 phone

showed that it was still in the same area as the night before. Law enforcement traveled

to Rockford and, in particular, to the Extended Stay America hotel there. Once they

arrived at the hotel, law enforcement spoke with the hotel's general manager at the front

desk. The hotel maintenance engineer joined the conversation, and both he and the

general manager identified Wright, based on photographs, as a guest staying in Room

305. The hotel manager stated that "Wright had come to the front desk a few minutes

earlier to pay for an additional week." Id. at 6. The hotel manager also told law

enforcement that Wright had been staying at the hotel since December 2018 and that a

male was staying with her. The maintenance engineer described a car he believed

belonged to Wright and the unknown male, and he told law enforcement where the car

was typically parked in the hotel's parking lot.

At approximately 8:40 a.m., law enforcement mobilized to secure the area. See

Def.'s Reply to Gov't's Resp. to § 2255 Mot., Ex. H-7 at 3 (FBI interview of Deputy U.S.

Marshal Michael Flannery). Officers set up exterior surveillance positions surrounding

the hotel, including placing an officer near the vehicle identified by the maintenance

engineer as belonging to Wright. At the same time, the maintenance engineer "agreed

to conduct a ruse visit to Room 305 to determine whether the male was in the room at

the time." Gov't's Resp. to Def.'s § 2255 Mot. at 6. As part of this ruse visit, the

maintenance engineer knocked on Room 305, and Wright allowed him to enter. The

maintenance engineer exited the room and confirmed to law enforcement that "a male

was lying on the bed" but stated that he could not see the man's face to positively

identify whether he was Floyd Brown. Id.

Deputy marshals then prepared to enter Room 305 and arrest Brown. Three

deputy marshals approached the room with a battering ram, knocked, and announced

themselves as U.S. Marshals with a warrant for Brown's arrest. A deputy marshal used

a master key obtained from the hotel manager to open the door. The door did not open

fully because the swing lock was engaged. But before any further steps could be taken,

Brown began firing a gun at officers from inside the hotel room. Brown fired multiple

shots before jumping out the hotel room's third-story window toward the parking lot. As

Brown fled through the parking lot, he shot and killed Special Deputy Marshal Jacob

Keltner, "who had been occupying an exterior surveillance position near the hotel's

northeast side between Room 305 and defendant's vehicle." Id. at 7. Brown then left

the scene in his vehicle.

Just before 11:00 a.m., Illinois State Police spotted Brown on highway I-39. A

high-speed chase ensued, ending with Brown crashing his car in a field and engaging in

an hours-long stand-off with law enforcement. Eventually, Brown surrendered and was

taken into custody.

As Brown was being pursued and apprehended, law enforcement was working to

secure the scene at the Extended Stay hotel. During the initial shooting, a round fired

by Brown had struck Wright, who was standing near the hotel room door at the time.

Wright indicated to law enforcement that she had been shot, and emergency services

were called to the scene.

According to Brown, law enforcement made three entries into the hotel room

after the initial entry. First, they entered to render aid to Wright and evacuate her from

the room. Second, they entered to conduct a protective sweep, which involved opening

the closet. Third, law enforcement entered the room and recovered various items that

they had seen during the protective sweep. Based on officers' reports, the first two

entries occurred more or less simultaneously; according to Rockford police officer

Joseph Stevens, a SWAT team entered the room first to extract Wright, and he then

"entered the room behind the SWAT team." Def.'s Reply to Gov't's Resp. to § 2255

Mot., Ex. H-11 at 5; see also id., Ex. H-9 at 2 (Rockford Police Department report of

officer Robert Reffett stating that "[t]he Illinois State Police SWAT team breached the

door to the suspects [sic] room and removed the female," then they "cleared the

suspects [sic] room and determined nobody else was inside."). During the protective

sweep, Stevens says, he saw spent shell casings on the floor, drops of blood, a laptop

computer, and "numerous items laying [sic] in the closet." Id., Ex. H-11 at 5. Though

the exact time of these first two entries is not stated in police reports, Stevens' report

indicates that he remained in Room 305 to secure the room until he was relieved by

other officers at 11:30 a.m. Id., Ex. H-11 at 5–6.

At approximately 6:20 p.m. on March 7, a federal magistrate judge issued a

warrant to search Rooms 305, 306, and 307, as well as the common areas of the

Extended Stay hotel. Law enforcement recovered the following evidence from Room

305: "two loaded handguns with obliterated serial numbers, several loaded firearm

magazines, hundreds of rounds of ammunition, a ballistic vest, and three electronic

devices, namely, defendant's cell phone, computer, and PlayStation console." Id. at 7–

8. A search pursuant to a subsequent warrant authorizing law enforcement to search

the three electronic devices uncovered "additional evidence relating to, among other

things, defendant's knowledge, intent, planning and premeditation, and possession of

the weapons." Id. at 8. A search of the cell phone recovered at the scene confirmed it

was assigned the -9123 phone number that had initially led law enforcement to the

Extended Stay hotel.

On March 8, law enforcement obtained a warrant to search Brown's vehicle.

Officers recovered "two rifles with obliterated serial numbers, one of which was later

connected to spent shell casings found at the Extended Stay hotel, and nearly 1,000

rounds of additional ammunition." Id.

A grand jury indicted Brown on multiple charges, including first-degree murder in

violation of 18 U.S.C. §§ 1114(1) and 1111. Through counsel, he filed several pre-trial

motions, including a motion seeking a hearing under Franks v. Delaware, 438 U.S. 154

(1978), to challenge the veracity of facts used to support the March 4, 2019 search

warrant. This Court denied Brown's motion for a Franks hearing, finding that he failed to

show any of the challenged statements were materially false. The Court alternatively

ruled, among other things, that Brown's commission of a new offense—the March 7

shooting and homicide—was an intervening circumstance that dissipated any taint of

illegality that might be claimed to arise from allegedly false statements in the warrant

application.

Brown's jury trial began on March 28, 2022, and on April 8, 2022, the jury

returned a verdict finding him guilty of second-degree murder and the other charges in

the superseding indictment—aside from first-degree murder, on which the jury acquitted

Brown. On August 9, 2022, the Court denied Brown's motion for a new trial and, on

August 29, the Court sentenced him to a prison term of fifty-five years. On September

6, 2022, this Court entered the judgment of conviction against Brown. Brown did not

appeal his conviction or sentence.

On August 28, 2023, Brown filed the present motion under 28 U.S.C. § 2255. In

his motion, Brown contends that he received ineffective assistance of counsel because

his attorneys failed to file a motion to suppress evidence that he contends was obtained

from the tracking of his cellular phone. In his reply brief, Brown appears to separately

contend that law enforcement's entry into and search(es) of the Extended Stay hotel

room after the shooting violated the Fourth Amendment and that law enforcement

violated Illinois law in obtaining cell site location information. See Def.'s Reply to Gov't's

Resp. at 6–11. Brown appears to be adding these contentions to his claim of ineffective

assistance involving counsel's failure to file a motion to suppress, though it is also

possible that he is challenging the entry and search(es) directly, not filtered through an

ineffective assistance claim.1

Discussion

A court may grant relief from a federal sentence under 28 U.S.C. § 2255 if "the

sentence was imposed in violation of the Constitution or laws of the United States,"

1 If Brown is challenging the searches directly, rather than through his ineffective

assistance of counsel claim, any such challenge is barred as untimely. An issue is

waived if it could have been raised in an opening brief but was not. See Qualls v.

United States, 774 F.2d 850, 851 (7th Cir. 1985) ("[P]etitioner did not raise this issue

before the district court in either petition for section 2255 relief. Accordingly, defendant

has waived the issue for appeal."); Bourgeois v. Watson, 977 F.3d 620, 629–31 (7th Cir.

2020) (analyzing issue of waiver in the context of a petition for section 2255 relief); see

also Wood v. Milyard, 566 U.S. 463, 474 (2012) (applying the waiver doctrine in the

context of a state prisoner's habeas corpus petition); Palmer v. Marion County, 327 F.3d

588, 597–98 (7th Cir. 2003) (collecting cases regarding waiver in the context of

summary judgment).

among other reasons. 28 U.S.C. § 2255. Generally, claims not brought on direct

appeal may not be raised for the first time on collateral review "unless the petitioner

shows cause and prejudice." Massaro v. United States, 538 U.S. 500, 504 (2003).

Claims for ineffective assistance of counsel, however, "may be brought in a collateral

proceeding under § 2255, whether or not the petitioner could have raised the claim on

direct appeal." Id.

A. Ineffective assistance of counsel

The Sixth Amendment guarantees the right to counsel in all criminal proceedings

"in order to protect the fundamental right to a fair trial." Strickland v. Washington, 466

U.S. 668, 684 (1984). Included in the right to counsel "is the right to the effective

assistance of counsel." Id. at 686 (quoting McMann v. Richardson, 397 U.S. 759, 771,

n.14 (1970)). To successfully maintain an ineffective assistance of counsel claim, a

criminal defendant must show two things: (1) "that counsel's performance was

deficient," and (2) "that the deficient performance prejudiced the defense." Id. at 687.

Failure to establish either element defeats a movant's claim. See Dunn v. Jess, 981

F.3d 582, 591 (7th Cir. 2020).

When a defendant premises an ineffective assistance of counsel claim on

defense counsel's failure to litigate a Fourth Amendment claim competently, to establish

prejudice the movant "must . . . prove that his Fourth Amendment claim is meritorious

and that there is a reasonable probability that the verdict would have been different

absent the excludable evidence . . . ." Kimmelman v. Morrison, 477 U.S. 365, 375

(1986). A reasonable probability is "a probability sufficient to undermine confidence in

the outcome." Strickland, 466 U.S. at 694. The movant is not required to show that

counsel's conduct "more likely than not altered the outcome in the case," id. at 693, but

the "likelihood of a different result must be substantial, not just conceivable." Harrington

v. Richter, 562 U.S. 86, 112 (2011).

The Court will begin by addressing whether the motion to suppress that Brown

contends his counsel should have filed would have been meritorious such that the

outcome of his trial would have been different. See Strickland, 466 U.S. at 697 ("[A]

court need not determine whether counsel's performance was deficient before

examining the prejudice suffered by the defendant as a result of the alleged

deficiencies.").

1. Prejudice from failure to file motion to suppress

Brown's contentions in his section 2255 motion regarding violations of the Fourth

Amendment (and counsel's ineffectiveness for failure to challenge those violations) are

not crystal clear, but he appears to argue that: (1) there actually was no warrant issued

on March 4; (2) even if there was a warrant, law enforcement obtained and used

information predating the warrant, and this was improper; and (perhaps) (3) the warrant

did not authorize law enforcement to obtain the information that it used to locate him at

the Extended Stay hotel. See Def.'s § 2255 Mot. at 22.

The Court will address all of those points, but it begins in another place. Brown's

foundational contention is that the government did not properly obtain the geolocation

evidence that it used to find him at the Extended Stay hotel. The problem with this is

that a motion seeking to suppress evidence on that basis would not have gotten Brown

anywhere. The government did not offer any geolocation information at trial. It didn't

need to. The story for purposes of the trial effectively started once Brown had been

located at the hotel, not before. Thus there was no need for the government to

introduce the geolocation information. And as indicated, it did not introduce any such

information.

What the government found via the geolocation evidence was Brown himself.

But even if law enforcement came about Brown's location improperly, he would not have

been entitled to suppression of his identity, or his body. He cites no law suggesting this,

and in fact the law is exactly to the contrary. "The body or identity of a defendant . . . is

never itself suppressible as a fruit of an unlawful arrest, even if it conceded that an

unlawful arrest, search, or interrogation occurred." United States v. Chagoya-Morales,

859 F.3d 411, 415 (7th Cir. 2017) (quoting INS v. Lopez-Mendoza, 468 U.S. 1032, 1039

(1984)).

Brown appears to contend that all of the information that law enforcement

recovered from his hotel room (and perhaps elsewhere) after it located him there

constituted fruits of the poisonous tree that should have been suppressed if the March 4

warrant was not properly issued. If that is Brown's contention, it is incorrect. The

crimes that Brown committed when law enforcement encountered him at the Extended

Stay hotel amounted to intervening circumstances that broke any causal connection

between the March 4 warrant and the information seized after the shooting took place.

See United States v. Sprinkle, 106 F.3d 613, 619 (4th Cir. 1997); id. at 619 n.4

(collecting cases). The Court so ruled, in fact, in connection with a separate motion that

trial counsel did file, in which they sought a Franks hearing regarding the issuance of

the March 4 warrant.

For these reasons, a motion to suppress the fruits of the March 4 warrant would

have gotten Brown nowhere. He therefore suffered no cognizable prejudice from trial

counsel's failure to file the motion. As a result, his claim of ineffective assistance of

counsel fails.

The Court will nonetheless address the other contentions that Brown makes

regarding the warrant to ensure a complete record in the event of an appeal.

Brown appears to contend that if his attorneys had filed a motion to suppress,

"the Court would have heard evidence that there wasn't a warrant authorizing the use of

geofencing/geotracking and, that there was [sic] warrantless searches to Room 305."

Def.'s Reply to Gov't's Resp. to § 2255 Mot. at 1. More specifically, Brown says that:

No warrant authorized law enforcement to use geofencing/geotracking to

ping Mr. Brown's cell phone to reveal his location. As a result, law

enforcement obtained Mr. Brown's GPS location as early as March 1,

2019[,] in violation of his Fourth Amendment rights, and all the evidence

obtained as a result of that illegal search and seizure, including evidence

obtained through the search warrants for Mr. Brown's hotel room and car is

fruit of the poisonous tree, and should be suppressed.

Def.'s § 2255 Mot. at 37. Brown says that, when reviewing the electronic tracking data

used to locate him in Rockford, he found maps that he believes show that law

enforcement used geofencing to track his cell phone's location. See id., Exs. A–B.

According to Brown, the warrants did not permit geofencing. Brown also contends that

law enforcement used location data from prior to March 4, 2019, the date the warrant

was obtained. Based on these contentions, Brown argues that the resulting search(es)

of his hotel room was illegal and that all evidence obtained from the hotel room should

be suppressed.

Brown's characterizations of the March 4, 2019 search warrant and the methods

law enforcement used to locate him in Rockford are not supported by the record.

Starting with the March 4 warrant, it authorized law enforcement to collect, among other

things, the following information:

Cell site activations; . . . [w]ire, electronic, cellular data, and all other dialing,

routing, addressing and signaling information initiated from and received by

the [-9123 phone], but not including the content of any communications; . . .

[and] twenty-four hour a day assistance to include switch based solutions

including precision location based information queries, per-call

measurement data (PCMD), range-to-tower (RTT), Network Event Location

System/NELOS, GPS/E911, and all reasonable assistance to permit the

aforementioned agencies to triangulate the historic, current, and

ongoing/prospective/real-time location of the target telephone.

Application/Warrant at 4, United States v. Brown, No. 19-cr-50016 (N.D. Ill. June 15,

2021), ECF No. 175-1. The March 4 warrant applied to the above information "for the

period of sixty (60) days prior continuing through sixty (60) days from the date of this

Order." Id. (emphasis added). In short, the plain language of the warrant: (a)

authorized law enforcement to use geotracking to locate Brown's phone going forward

from March 4, 2019; and (b) permitted the collection of historic cell site location

information, going back sixty days—in other words back to January 3, 2019.

For these reasons, Brown is incorrect that law enforcement exceeded the scope of the

warrant to locate him in Rockford.

As the search warrant specifically permitted, law enforcement obtained

information that tracked the cell site activation of Brown's phone, and then it mapped out

the radius of the two cell towers on which his phone had recently pinged, and inferred

that Brown was likely in the area where the two radii overlapped because the hotel that

the -9123 phone called—the Extended Stay America—was also in that same area. In

sum, law enforcement did not obtain anything that the warrant did not permit it to obtain.

Brown also appears to contend that a hearing on a motion to suppress would

have brought to light evidence that the March 4 warrant did not actually exist at the time

law enforcement began to track the -9123 phone. To support this contention, Brown

points to statements made by various law enforcement officials before the March 7 entry

into his hotel room. One such e-mail, sent on March 5 at 9:28 a.m. from BPD officer

Tom Rena, states that "[a]ttached is the phone number that Drianna Wright gave to

AMTRAK. There are several calls that makes [sic] me believe that she is using this

phone." Def.'s § 2255 Mot., Ex. G. Rena then asks, "Can we go up on it?" Id. In

response to that e-mail, Deputy Marshal Craig Kmett sent an e-mail to Deputy Marshal

Frederick Freeman on March 5 at 10:47 a.m. stating that "[t]hey think they have a good

# for Floyd Brown's girlfriend. Everyone interviewed says Floyd and her are together in

the Rockford area." Id. Kmett then asks, "Let me know if they can get Order on her

phone (Verizon)." Id.

Brown contends that these statements indicate that law enforcement did not

actually have a warrant as of March 5. Specifically, he contends that Rena asking

"[c]an we go up on it" and Kmett's subsequent request to "[l]et me know if they can get

Order on her phone" "would lead a reasonable person to believe that there was no

warrant for the -9123 phone as of March 5, 2019." Id. at 27. That's a non sequitur.

There are all sorts of better explanations for this that are consistent with the warrant

actually having been issued on March 4, the date that it bears on its face. Perhaps the

simplest is that the officers who wrote these emails were not completely in the loop.

The Court also notes that, as indicated earlier, even though the warrant was signed and

issued on March 4, it was not served on the cell phone service provider until March 5,

the same date as the two emails, and law enforcement did not start getting data until

7:00 p.m. that evening. Viewed in this context, the emails that Brown cites are not

evidence of a rogue operation to obtain cell site location information without a warrant;

rather, they represent human participants catching up with the unfolding events.

In sum, any contention by defense counsel that there was no warrant at the

relevant time would have been meritless.

Brown also contends that law enforcement used cell site information predating

the March 4 warrant and that this is further evidence of an illegal search. Again, not so.

As the Court has discussed, the March 4 warrant enabled law enforcement to get both

historical information (going back in time) and real-time information (going forward in

time).

For all of these reasons, any motion filed by counsel arguing that the location

data obtained by law enforcement was the product of an unconstitutional search would

have failed. In Carpenter v. United States, 585 U.S. 296 (2018), the Supreme Court

held that "the Government must generally obtain a warrant supported by probable

cause before acquiring [historical CSLI]." Id. at 316. In Brown's case, the government

did that: the warrant was properly supported, and it plainly authorized law enforcement

to obtain information going back sixty days and going forward sixty days. As such,

Brown's Fourth Amendment rights were not violated when law enforcement obtained

and used cell site location information to find him.

The Court also notes that under controlling Seventh Circuit authority, the

obtaining of real-time location data to locate Brown did not constitute a search within the

meaning of the Fourth Amendment. See United States v. Hammond, 996 F.3d 374, 387

(7th Cir. 2021). In Hammond, the Seventh Circuit found that use of real-time location

data for a limited period of time is not a search when the location data "does not provide

a 'window into [the] persons' life, revealing . . . his familial, political, professional,

religious, and sexual associations' to the same, intrusive degree as the collection of

historical CSLI." Id. at 389 (quoting Carpenter, 585 U.S. at 311). In the present case,

law enforcement tracked Brown's real-time CSLI for "approximately 38 hours: from

around 7:00 p.m. on March 5, 2019, until the morning of March 7, 2019." Gov't's Resp.

to Def.'s § 2255 Mot. at 18. Further, the pings used to track Brown's real-time

movements provided only a general location, as each cell tower's location radius ranged

from about 0.8 miles to about 1.5 miles. As such, the pings were not precise enough to

show Brown's movements within a private space. See United States v. Riley, 858 F.3d

1012, 1018 (6th Cir. 2017) (finding that using "seven hours of GPS location data to

determine an individual’s location (or a cell phone’s location) so long as the tracking

does not reveal movements within the home (or hotel room), does not cross the sacred

threshold of the home, and thus cannot amount to a Fourth Amendment search"). In

short, the privacy interest at the core of the Supreme Court's analysis in Carpenter has

no bearing here; rather, Hammond indicates that law enforcement's use of Brown's real-

time CSLI to locate him in Rockford did not amount to a search under the Fourth

Amendment.

To sum up: even if use of real-time CSLI did constitute a search under the

Fourth Amendment, law enforcement had a properly-obtained warrant allowing it to

gather that information. Brown's contention that his Fourth Amendment rights were

violated when law enforcement used both historical and real-time location data to locate

him in Rockford is not persuasive. Any motion to suppress evidence stemming from the

March 4 warrant would have lacked merit. Thus Brown cannot establish that he was

prejudiced by counsel's claimed ineffective assistance in failing to file such a motion. As

a result, his ineffective assistance claim fails.

2. Entries into the Extended Stay America hotel room

In his reply brief, Brown contends that a motion to suppress would have brought

to light facts regarding what he contends were illegal entries by law enforcement into

the Extended Stay hotel room. This contention is waived, or forfeited, as Brown did not

raise it in his section 2255 motion. See Qualls, 774 F.2d at 851; Palmer, 327 F.3d at

597–98. The Court nonetheless considers the point to ensure a complete record in the

event of an appeal.

As indicated earlier, law enforcement obtained a master key from the hotel's

general manager and used it to open the door to Brown's hotel room. Though law

enforcement had a warrant to arrest Brown, there was no search warrant for the hotel

room. Brown argues that the entry or entries into his hotel room without a warrant ran

afoul of the Fourth Amendment. Thus, he contends, all evidence obtained from the

hotel room should have been suppressed. Accordingly, Brown argues that, by not filing

a motion to suppress based on these illegal entries, his counsel provided ineffective

assistance.

To support this position, Brown cites to Steagald v. United States, 451 U.S. 204

(1981). In Steagald, the Supreme Court addressed "whether, under the Fourth

Amendment, a law enforcement officer may legally search for the subject of an arrest

warrant in the home of a third party without first obtaining a search warrant." 451 U.S.

at 205. The Court in Steagald held that law enforcement must obtain a search warrant

to effectuate an arrest—even an arrest supported by a valid warrant—if that arrest

involves entering the home of a third party. Id. at 205–06. Further, the Fourth

Amendment extends beyond the home to include hotel rooms. See Stoner v. California,

376 U.S. 483, 490 (1964) ("No less than a tenant of a house, or the occupant of a room

in a boarding house, . . . a guest in a hotel room is entitled to constitutional protection

against unreasonable searches and seizures." (internal citation omitted)). Brown

contends that he had a legitimate expectation of privacy in Room 305 and that, based

on Steagald, officers could not "enter [the] hotel room to arrest an occupant that is the

subject of an arrest warrant"—i.e., Brown himself—because they did not also have a

search warrant for that hotel room. See Def.'s Reply to Gov't's Resp. to § 2255 Mot. at

8.

This argument lacks merit. First and foremost, Brown's reliance on Steagald is

not persuasive. We are not talking here about the search of a third party's home (or

hotel room), as was the case in Steagald; Brown asserts that Room 305 was his hotel

room. See id. at 7–8. For this reason, Steagald is inapposite. In Steagald, police

officers entered Gary Steagald's home to execute an arrest warrant for Richard Lyons.

Steagald, 451 U.S. at 206. During an unsuccessful search for Lyons in Steagald's

home, officers discovered contraband, which led them to obtain a search warrant for

Steagald's home and, ultimately, file criminal drug charges against Steagald. Id. at

206–07. Steagald challenged law enforcement's initial entry into his home without a

search warrant. The Supreme Court concluded that although law enforcement's arrest

warrant for Lyons permitted them to "arrest Lyons in a public place or in his home," id.

at 213 (emphasis added), it did not permit them to arrest Lyons in Steagald's home.

This case is different. Brown was not arrested in someone else's home (or hotel

room); as indicated, he says it was his hotel room. Thus what happened here is that

law enforcement, armed with a warrant for Brown's arrest, entered his "home" to arrest

him. That did not run afoul of Steagald, and it did not violate the Fourth Amendment.

The arrest warrant for Brown permitted entry into his home (here, his hotel room) to

arrest him, at least if there was probable cause to believe he was there—as there quite

plainly was. A separate search warrant was not needed to enter Brown's hotel room.

See Payton v. New York, 445 U.S. 573, 602–03 (1980) ("[F]or Fourth Amendment

purposes, an arrest warrant founded on probable cause implicitly carries with it the

limited authority to enter a dwelling in which the suspect lives when there is reason to

believe the suspect is within.").

Were Brown now to switch gears and suggest that it was not his hotel room and

that he was merely Wright's guest, that would not improve his chances. Though that

scenario might make Steagald applicable, the person in Steagald whose Fourth

Amendment rights were violated was Steagald, the home's owner, not Lyons, the

assumed guest. "[O]ne who seeks to challenge the legality of a search as the basis for

suppressing relevant evidence [is required to allege] . . . that he himself was the victim

of an invasion of privacy." Jones v. United States, 362 U.S. 257, 261 (1960). Thus if

the hotel room was Wright's, it was her Fourth Amendment rights, not Brown's, that

were implicated by law enforcement's entry. This is beside the point, however, as

Brown repeatedly states that law enforcement violated his Fourth Amendment rights

when they entered his hotel room.

This covers law enforcement's initial entry into the hotel room. Brown—again,

only in his reply—also challenges later entries to the room in which evidence was seen

and ultimately seized. This argument is forfeited or waived for the same reasons

previously discussed. That aside, any such contention by his counsel would have

failed, for two reasons.

The first is one the Court has already referenced, specifically, the attenuation

doctrine. "Evidence is admissible when the connection between unconstitutional police

conduct and the evidence is remote or has been interrupted by some intervening

circumstance, so that the interest protected by the constitutional guarantee that has

been violated would not be served by suppression of the evidence obtained." Utah v.

Strieff, 579 U.S. 232, 238 (2016) (citation and quotation marks omitted). Courts

consider three factors to determine whether evidence has become attenuated from the

constitutional violation such that it may be admissible: (1) the "temporal proximity

between the unconstitutional conduct and the discovery of evidence to determine how

closely the discovery of evidence followed the unconstitutional search"; (2) "the

presence of intervening circumstances"; and (3) "the purpose and flagrancy of the

official misconduct." Id. at 239.

In this case, as the Court has stated (and as it ruled in connection with trial

counsel's Franks motion), the attenuation doctrine applies. The temporal proximity

factor does not cut in favor of attenuation "unless 'substantial time' elapses between an

unlawful act and when the evidence is obtained." Id. (citation omitted). Here, not much

time passed between law enforcement's initial entry and the seizure of evidence from

Room 305.

But although the time differential is relatively short, there were significant

intervening circumstances, which would weigh strongly against suppressing evidence

obtained from the hotel room: Brown's shooting at the deputy marshals and his flight

from the scene. See Sprinkle, 106 F.3d at 619 (finding that a defendant's "own illegal

acts after the initial [constitutional violation] trigger[s] an exception to the exclusionary

rule" because the defendant's response "is itself a new, distinct crime" (citation and

quotation marks omitted)). In addition, based on Brown's conduct of shooting at officers

and then fleeing from the scene—a shooting which resulted in the death of officer

Keltner—law enforcement obtained a warrant to search Room 305. "[T]he existence of

a valid warrant favors finding that the connection between unlawful conduct and the

discovery of evidence is sufficiently attenuated to dissipate the taint." Strieff, 579 U.S.

at 240. Therefore, the second factor favors the government.

Finally, there is nothing approaching "flagrant" misconduct here. Even if one

assumes—contrary to the Court's conclusion—that the first entry into the room was

improper, the second and third entries were fully and independently justified. When law

enforcement entered the hotel room to remove Wright, that was fully permissible

(irrespective of any justification for the initial entry) based on exigent circumstances.

See Hammond, 996 F.3d at 384 ("One well-recognized exception [to the search warrant

requirement] applies when 'the exigencies of the situation make the needs of law

enforcement so compelling that a warrantless search is objectively reasonable under

the Fourth Amendment.'" (quoting Kentucky v. King, 563 U.S. 452, 460 (2011)).

Specifically, the need for emergency aid for Wright, an injured occupant of the room,

amounted to an exigent circumstance that permitted entry without a warrant. See King,

563 U.S. at 460. And when law enforcement then reentered the room (or expanded the

scope of its initial entry), that was a justified "protective sweep"—"a quick and limited

search of the premises, incident to an arrest," in order to conduct "a cursory visual

inspection of those places in which a person might be hiding." Maryland v. Buie, 494

U.S. 325, 327 (1990).

Brown does not challenge the proposition that exigent circumstances existed

allowing law enforcement to enter the hotel room without a warrant to remove Wright

and conduct a protective sweep. Rather, he argues only that "the third entry into the

room by Rockford Police was illegal and thus, violated the defendant's Fourth

Amendment rights." Def.'s Reply to Gov't's Resp. to § 2255 Mot. at 10. This argument

fails. Brown concedes that "the items [in the hotel room] were finally seized pursuant to

a warrant." Id. at 11. Law enforcement initially identified the items later recovered from

the hotel room because they were in plain view during the protective sweep. "The

Fourth Amendment protection of the home has never been extended to require law

enforcement officers to shield their eyes" and ignore evidence in plain view. California

v. Ciraolo, 476 U.S. 207, 213 (1986). And law enforcement did not simply take the

items then; rather it obtained a search warrant allowing their seizure.

For these reasons, Brown has identified no viable basis for suppression of any

material that was seized from the hotel room. Any motion to suppress would have

lacked merit.

3. Claimed "seizure" of cell phone

As a final matter, Brown contends that law enforcement illegally seized his phone

when it "commandeered [his] cell phone to reveal his GPS location." Def.'s § 2255 Mot.

at 36. According to Brown, "[l]aw enforcement thus converted [his] cell phone into a

tracking device, much like the tracking device in [United States v. Jones], by trespassing

onto his cell phone." Id. This argument is unpersuasive for several reasons, the most

obvious being that in United States v. Jones, 565 U.S. 400 (2012), the Supreme Court

based its holding on the fact that "[t]he Government physically occupied private property

for the purpose of obtaining information." Id. at 404 (emphasis added). The Court in

Jones noted the history of Fourth Amendment jurisprudence, relying on principles based

in common law trespass, when it found that there would be "no doubt that such a

physical intrusion would have been considered a 'search' within the meaning of the

Fourth Amendment." Id. at 404–05 (emphasis added) (citation omitted). The Court

explained that "for most of our history the Fourth Amendment was understood to

embody a particular concern for government trespass upon the areas ('persons,

houses, papers, and effects') it enumerates." Id. at 406. Accordingly, the fact that law

enforcement physically attached a tracking device to Jones's car—one of his effects—

was central to the Court's finding that a search had occurred. Id. at 404 ("It is beyond

dispute that a vehicle is an 'effect' as that term is used in the [Fourth] Amendment.").

The Court in Jones expressly did not consider the argument raised by Brown: "It may

be that [tracking a suspect's movement for an extended period of time] through

electronic means, without an accompanying trespass, is an unconstitutional invasion of

privacy, but the present case does not require us to answer that question." Id. at 412.

Brown's argument that law enforcement seized his cell phone when it began

tracking his CSLI data is unpersuasive for another reason: it did not meaningfully

interfere with Brown's possessory interest in his cell phone. See United States v.

Jacobsen, 466 U.S. 109, 113 (1984). Brown does not contend that he was unable to

use his cell phone or that law enforcement otherwise limited the cell phone's

functionality. Accordingly, the Court finds that law enforcement did not seize Brown's

phone within the meaning of the Fourth Amendment when it used CLSI data from the

phone to track and locate Brown in Rockford.

In sum, Brown has failed to show that any motion to suppress evidence based on

alleged Fourth Amendment violations would have had a reasonable chance of

succeeding. Therefore, it is unnecessary to determine whether his lawyers' failure to file

such a motion fell below an objective standard of reasonableness. See Dunn, 981 F.3d

at 591.

B. State law claim

In his reply, Brown contends for the first time that the government violated Illinois

state law when it sought location information for the -9123 phone. According to Brown,

law enforcement was under the belief that the -9123 phone belonged to Wright at the

time it applied for the search warrant. Brown contends that law enforcement violated

the Illinois Freedom from Location Surveillance Act, 725 ILCS 168/10, by obtaining

location information for the -9123 phone. This provision states, in relevant part:

[A] law enforcement agency shall not obtain location information pertaining

to a person or his or her effects without first obtaining a court order . . .

based on probable cause to believe that the person whose location

information is sought has committed, is committing, or is about to commit a

crime or the effect if evidence of a crime, or if the location information is

authorized under an arrest warrant . . . to aid in the apprehension or the

arrest of the person named in the arrest warrant.

725 ILCS 168/10. According to Brown, police did not have probable cause to believe

that Wright—who, based on the information from Amtrak, appeared to be the registered

owner of the -9123 phone—was suspected of committing any crime or that the phone

was evidence of a crime. As noted, Brown makes this claim for the first time in his

reply. Therefore, the Court finds that Brown has waived the claim. See Palmer, 327

F.3d at 597-98 (collecting cases).

Waiver aside, a state-law violation would not entitle Brown to relief under section

2255 in any event. Section 2255, by its terms, requires a showing that the defendant's

conviction was procured or his sentence was imposed "in violation of the Constitution or

laws of the United States." 28 U.S.C. § 2255(a); see also United States v. Addonizio,

442 U.S. 178, 186 (finding that a motion brought under section 2255 must allege either

a constitutional violation, that the sentence imposed was beyond the statutory limit, or

that the proceeding was infected in an "error of fact or law of the ‘fundamental’ character

that renders the entire proceeding irregular and invalid"). Brown's contention that law

enforcement allegedly violated an Illinois statute is not cognizable under section 2255.

Conclusion

For the reasons stated above, the Court denies Brown's motion under 28 U.S.C.

§ 2255 [dkt. 1]. Brown's earlier-filed motions for extension of time were ruled upon and

are terminated as moot [dkt. 21, 22]. The Clerk is directed to enter judgment stating:

Floyd Brown's motion under 28 U.S.C. § 2255 is denied. The Court also declines to

issue a certificate of appealability, as the Court can find nothing to suggest that the

merits of the claims that were rejected are debatable, capable of different resolution, or

deserving of further consideration. See 28 U.S.C. § 2253(c)(2); Barefoot v. Estelle, 463

U.S. 880, 893 n.4 (1983); Porter v. Gramley, 121 F.3d 1308, 1312 (7th Cir. 1997).

Date: July 15, 2025

United States District Judge

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