Judges Split on Warrant to Tape

Does the FBI Need a Warrant to Tape Outside a Federal Courthouse?

In under two weeks, two California-based federal judges have come up with sharply different answers to the same question: does the Federal Bureau of Investigation (FBI) need a warrant to use hidden recording devices to make audio or videotapes outside federal courthouses?

Both decisions grew out of the same investigation into illegal bid-rigging at open auctions for foreclosed properties, held on courthouse steps. In the first decision, issued July 22, district court judge Phyllis Hamilton called the hidden taping “at the very least unsettling,” but allowed the recordings to be used as prosecution evidence, despite the FBI’s lack of a warrant authorizing it to tape secretly.

Criminal defendants in the first case had tried to keep prosecutors from using audio and video recordings of their conversations captured by FBI-hidden recorders outside entrances to courthouses in Alameda and Contra Costa Counties. The defendants cited a key 1967 Supreme Court decision (Katz v. United States), which held secretly taping conversations without a search warrant in places where those taped had a reasonable expectation of privacy violated the Fourth Amendment’s protections against unreasonable government searches and seizures.

Wanting to listen in as the suspects coordinated bids, the FBI had planted recording devices in lampposts, bus stops and parked cars outside the courthouse entrances. The main federal law on wiretapping follows the Katz decision in suppressing court use of conversations recorded in violation of that standard. So the accused bid-riggers asked the court to keep their recorded conversations from being used against them before a grand jury or at trial.

Judge Hamilton dismissed defendants’ argument their bid-rigging conversations showed they had a reasonable expectation of privacy. She noted the conversations, instead of being whispered and clandestine, were instead held in public places. She also noted that where videos of the conversations were available, the defendants did not seek out more remote or discreet locations and their behavior did not indicate they thought they were in private settings.

In addition, when the defendants spoke at normal volume, they were clearly audible when recorded by devices that did not amplify the conversations. In fact, at one point the recordings showed defendants shouting to one another to be heard over a jackhammer operating nearby.

The judge also noted that the defendants had been unable to cite a single case holding that the entrance to a federal courthouse was an area where persons had a reasonable expectation of privacy. She noted that that the presence of lawyers, court officers, and persons passing by, entering and exiting the area would make it unreasonable to expect their conversations might not be overheard.
But not too long after or far away, on August 1 another federal district court judge, Charles Breyer (the brother of Supreme Court Justice Stephen Breyer), ruled the FBI had in fact violated the Fourth Amendment by secretly taping outside the San Mateo County courthouse.

Accepting the arguments of other foreclosure bid-rigging defendants, he decided the FBI had “utterly failed” to justify its warrantless surveillance, and so could not use any of the 200 hours of taped conversations the agency had collected over nine months. In fact, Judge Breyer scheduled another hearing for arguments that the taping had so affected the case that prosecutors should not be allowed to go forward with their now-tapeless case.

The apparent moral: if you have criminal thoughts, don’t give voice to them on the courthouse steps. And if you do, make sure it’s in San Mateo County.

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