In San Francisco, California, The Recorder
- A federal judge has barred prosecutors from introducing evidence picked up by recording devices planted outside the San Mateo County courthouse without a warrant.
In a 19-page decision issued [last week], U.S. District Judge Charles Breyer found that federal investigators had "utterly failed to justify" a warrantless surveillance program which picked up more than 200 hours of recordings, including at least one private conversation between a judge and a prosecutor.
"Even putting aside the sensitive nature of the location here, defendants have established that they believed their conversations were private and that they took reasonable steps to thwart eavesdroppers," wrote Breyer, finding that the recordings violated the defendant's Fourth Amendment rights.
Breyer's decision comes in a criminal antitrust case targeting investors alleged to have conspired to manipulate public real estate auctions held outside the Redwood City courthouse in 2009 and 2010. 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 during the foreclosure crisis.
A spokesman for DOJ declined to comment on Breyer's decision.
Latham & Watkins partner Daniel Wall, one of the lead defense lawyers in the case, said Breyer's decision highlights how the intrusion beyond the defendants.
"[The case] illustrates what a danger this is to everybody's privacy rights" when the government is allowed to turn recording devices on in public and keep them on for long periods without judicial oversight, Wall said.
Between December 2009 and September 2010, the FBI used hidden microphones in four locations outside the San Mateo County Courthouse in Redwood City to collect more than 200 hours of audio recordings near the auctions site. Breyer noted that the microphones picked up conversations "regardless of whether that person was a defendant, a county employee, an attorney, a judge, or a member of the public."
Breyer wrote that among the notable conversations picked up was one between an unnamed San Mateo Superior Court judge and a county prosecutor discussing case loads, attorneys that appeared before the judge, and "a request from the judge that the prosecutor not blame his deputies for certain events." Another recording captured two women discussing intimate relationship issues, including one telling the other about someone stuffing a dollar bill down her bra, something Breyer noted might be "slightly blue for the pages of the Federal Supplement."
Breyer wrote that "the FBI's electronic surveillance program recorded conversations that speakers would not have participated in had FBI agents or members of the public, rather than hidden microphones, been in close physical proximity to them."
His decision runs counter to an opinion last month from his colleague, U.S. District Chief Judge Phyllis Hamilton, who declined to suppress recordings picked up by devices placed outside courthouses in Alameda and Contra Costa counties.(1) Although Hamilton found the placement of the devices "unsettling," she wrote that defendants hadn't taken steps to protect the privacy of the conversations that were recorded.
In the San Mateo case, Breyer held three days of evidentiary hearings, including a prolonged examination of the agent who placed devices in four locations near the Redwood City auction site. Breyer found that the defendants had taken steps to make sure their conversations weren't overheard. The judge noted that techniques that don't require judicial sign off, including body microphone recordings by a cooperator and an undercover agent posing as an investor, had failed to pick up the group's conversations.
For more, see Breyer: Courthouse Bugs Violate Fourth Amendment
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See 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