Federal Judge To FBI: OK To Plant Warrantless Audio Recording Devices Outside Courthouse In Effort To Bust Real Estate Investors Suspected Of Bid Rigging At Public Foreclosure Sales; Bugs Called "Unsettling" But Not Illegal

In Oakland, California, The Recorder reports:

• A federal judge in Oakland has ruled that government agents didn't violate the Fourth Amendment when they planted audio recording devices outside courthouses in Alameda and Contra Costa counties without a warrant.
  
  U.S. District Chief Judge Phyllis Hamilton wrote that while it was "unsettling" for the devices to be planted near courthouse entrances in Oakland and Martinez, it wasn't illegal.
  
  "Having listened to the recordings at issue, the court finds that defendants did not take steps to protect the privacy of the conversations that were audibly recorded," wrote Hamilton in a 17-page order handed down [last week].
  
  Hamilton's decision comes in a criminal antitrust case targeting investors alleged to have conspired to manipulate public real estate auctions held outside the courthouses during the height of the foreclosure crisis. Prosecutors from the Department of Justice's Antitrust Division have secured more than 50 guilty pleas in related cases as part of a sweeping probe of auctions across the Bay Area.
  
  In Friday's decision, Hamilton wrote that the investors couldn't reasonably expect that conversations held at audible levels in public would remain private.
  
  While she agreed with the defendants that "it is at the very least unsettling that the government would plant listening devices on the courthouse steps," she wrote that it is "equally unrealistic" for anyone to believe that conversations held in public can remain private, given the prevalence of cameras in storefronts, front porches "and in the hand of nearly every person who owns a smartphone.
  
  "There are no cases which establish a bright line rule one way or the other," she wrote.
  
  In making their argument to suppress evidence, defense lawyers argued that the courthouse steps are a regular site for attorneys to have private conversations with clients. But Hamilton dismissed that argument, finding that it was "unlikely, and certainly unreasonable" for attorneys to discuss sensitive matters "where they could easily be overheard by other attorneys, prosecutors, law enforcement officers, security personnel, court staff, judges and other bystanders."
  
  "As an aside," she wrote, "it has been the court's observation that conversations near the courthouse entrance are frequently overheard by unintended and unseen listeners, even from inside the courthouse."
  
  ***
  The motion to suppress was largely modeled off a similar motion filed last year challenging courthouse recordings in a case involving auctions held outside the San Mateo County courthouse. U.S. District Judge Charles Breyer in San Francisco, who is overseeing the San Mateo case, has yet to rule whether those recordings were legal or not.

For more, see Courthouse Steps Listening Devices Not Illegal, Hamilton Says (may require subscription; if no subscription, GO HERE, then click the appropriate link).

For the court ruling, see U.S. v. Marr, et al.