Judge Rules FBI Violated Fourth Amendment By Recording 200+ Hours of Audio At A Courthouse (thenextweb.com)

An anonymous reader quotes a report from The Next Web: A federal judge in the Bay Area ruled that the FBI violated the fourth amendment by recording more than 200 hours of conversation at the entrance to a court house. Agents planted concealed microphones around the San Mateo County Courthouse in 2009 and 2010 as part of an investigation into bid-rigging at public auctions for foreclosed homes. In November, lawyers representing five defendants filed a motion that the recordings were unconstitutional on fourth amendment grounds (illegal search and seizure). U.S. District Judge Charles Breyer wrote in an order yesterday: [T]he government utterly failed to justify a warrantless electronic surveillance that recorded private conversations spoken in hushed tones by judges, attorneys, and court staff entering and exiting a courthouse. Even putting aside the sensitive nature of the location here, Defendants have established that they believed their conversations were private and they took reasonable steps to thwart eavesdroppers. The report continues: "The FBI originally used a cooperator wearing a wire to eavesdrop at auctions as well as an undercover agent posing as an investor. At some point though, the cooperating source 'soured' according to FBI testimony and it became 'typical behavior' for the accused to 'walk away from a larger group' and speak 'separate[ly] from [the] informant and undercover agent.' The FBI then adopted the new technique, bugging the courthouse and collecting more than 200 hours of audio over a nine month span. The problem, as pointed out by Judge Breyer, was: '[The FBI was] capturing the conversations of anyone who entered or exited the employee entrance of the courthouse... The FBI never sought judicial authorization for this program.'"

Comments

Re:Bad decission

[uncqual]

Stressman v. American Blackhawk Broadcasting is not relevant to this case. Stressman was a finding by a state (not Federal) court on a civil (not criminal) case between two private parties (not the government and a private party). It had absolutely nothing to do with law enforcement violating a defendant's rights enumerated in the Fourth Amendment of the United States Constitution.

In the San Mateo case, the opinion makes it clear that the defendants (as well as participants in other completely unrelated conversations that were recorded by the microphones) consciously were trying to keep their conversations private as evidenced by speaking in hushed tones, stopping talking when another party approached, etc. As there were no other people close enough to hear the defendant's conversations, they had an expectation of privacy -- an expectation which the microphones violated.

I don't know how this will go on appeal (if there is one), but Stressman won't be cited by either party in such appeals.

Note, for example, that the Supreme Court has held (Kyllo v. United States) that the police's use of FLIR from a public vantage point to "peer" through walls of a private home to determine if "grow lights" were being used inside constituted a "search" and that, without a warrant, it was a violation of the defendant's Fourth Amendment rights. Note, however, that Kyllo, in no way prohibits me from standing on the sidewalk in front of my neighbor's house and using FLIR to figure out what is going on inside (some state laws may do so however).

The lineup in Kyllo was somewhat interesting. It was 5-4 with Scalia, Souter, Thomas, Ginsburg, and Breyer finding the search violated the Fourth Amendment while Stevens, Rehnquist, O'Connor and Kennedy dissented. The common belief that the conservative members of the court are "anti-defendant" was once again dispelled in this case.