Sneaky Feds On Planting Warrantless 'Bugs' Outside Courthouse In Effort To Bag Alleged Foreclosure Sale Bid-Riggers: They Have No Expectation Of Privacy - "The Public Auctions Were, Unsurprisingly, Public!"

In Oakland, California, The Recorder reports:

• Defense lawyers for a group of five Bay Area real estate investors made waves last month when they claimed their clients' privacy rights were violated when FBI agents planted recording devices outside an entrance to the San Mateo County Courthouse without getting a warrant.
  
  The bugs captured more than 200 hours of audio in 2009 and 2010 as part of the government's sweeping investigation into bid-rigging at public foreclosure auctions, according to defense filings.
  
  But federal prosecutors contend in court papers filed on Monday that the defendants didn't have a reasonable expectation of privacy during the captured conversations, which were held as bidders gathered for auctions.
  
  "In sum, the public auctions were, unsurprisingly, public," wrote David Ward, a lawyer in the DOJ's antitrust division.
  
  The case tests just how far the government can go to capture private conversations held in a public space without judicial sign off. Rory Little, a law professor at UC-Hastings College of the Law, said that underlying issues could catch the attention of U.S. District Judge Charles Breyer, who is overseeing the case. "It just seems to me that you're likely to see further proceedings on these issues. This is the kind of motion that might push off a trial date," said Little, the former appellate chief in the Northern District's U.S. attorney's office. "This is definitely going to be a motion that Judge Breyer finds interesting and it's hard to predict what's going to happen."
  
  Prosecutors concede that FBI agents did not request a warrant before placing one audio recording device in a sprinkler box attached to the building and another in a planter box near where the auctions were typically held—just outside an employee entrance to the courthouse. Federal agents did, however, get the blessing of the San Mateo County Sheriff's Office, which consulted with county counsel before giving permission, the government's new filing says. Agents placed additional devices that could record both video and audio in an unmarked car parked at a curb designated for police vehicles, but prosecutors point out that defendants aren't challenging the video surveillance.
  
  In their motion to suppress the recordings, defense lawyers made repeated reference to the potential for the devices to capture privileged conversations between lawyers and clients entering and exiting the building.
  
  But federal prosecutors say the auctions were conducted on the opposite side of the building from entrances litigants would use. "Moreover," Ward wrote, "attorneys and clients do not have private conversations at public auctions attended by dozens of people."
  
  Ward also says the defense motion should be found moot since the government doesn't intend to use any of the recordings at trial.
  
  "The stationary audio recordings are of low quality, contain mostly irrelevant conversations, and did not advance the investigation," he wrote.
  
  Arguments on the motion are set for January.
  
  The concession by the government "is a welcome first step but does not moot this hearing," said defense lawyer Jeffrey Bornstein. "There was no judicial authorization for these recordings, nor was there any notice given to anyone that their private conversations would be recorded."

Source: Feds Defend Courthouse Bugging.