Mics on court steps not illegal

Courthouse News Service ^ | July 26, 2016 | MATTHEW RENDA

[Auntie Mame]

FBI Mics on Court Steps Not Illegal, Judge Rules

By MATTHEW RENDA 

     SAN FRANCISCO (CN) — A federal judge has ruled the practice of placing recording devices at the courthouse steps in two California counties is "unsettling" but does not run afoul of constitutional guarantees against warrantless searches.
     In a 17-page ruling issued July 22, U.S. District Judge Phyllis Hamilton acknowledged the practice of placing recording devices on the courthouse steps in Oakland and Martinez to capture the conversations of four defendants in a federal criminal fraud case was "unsettling," but said the four did not have a reasonable expectation of privacy when they engaged in discussions about the alleged fraud next to the FBI's microphones.
     "While the court agrees with defendants that it is at the very least unsettling that the government would plant listening devices on the courthouse steps given the personal nature of many of the conversations in which people exiting the courthouse might be engaged, it is equally unrealistic for anyone to believe that open public behavior including conversations can be private given that there are video cameras on many street corners, storefronts and front porches, and in the hand of nearly every person who owns a smartphone," Hamilton wrote in her ruling.
     The ruling is part of an ongoing case involving the four men, who stand accused of rigging bids to obtain hundreds of properties throughout Alameda and Contra Costa Counties.
     According to a federal indictment filed by the Justice Department in 2014, Michael Marr, Gregory Casorso, Javier Sanchez and Victor Marr conspired to restrain competition by agreeing not to compete with one another during auctions for foreclosed properties and then splitting the proceeds or taking place in private secondary auctions known as "rounds."
     As part of the case, the FBI placed recording devices in a light fixture along the steps of Alameda County Courthouse and just outside the Contra Costa County Courthouse, among other locations in proximity to both courthouses. The government then used the conversations they gathered from the devices during the grand jury proceedings.
     The defense argued that the recordings were gathered in violation of the Fourth Amendment provision that guards against illegal search and seizure, and asked for the recordings and other evidence tainted by the recordings to be suppressed.
     In her ruling, Hamilton agreed with prosecutors who argued that the men "did not have a reasonable expectation of privacy in their public oral communications outside the county courthouses."
     The defendants forfeited their reasonable expectation of privacy when they bragged about their scheme to the local press and talked about it in loud voices in public places, Hamilton wrote.
     The defense argued that the four men often huddled and talked in hushed tones, which showed they made significant efforts to keep their communications private — a necessary stipulation when asserting a reasonable expectation of privacy.
     But Hamilton noted the recording devices did not use amplification technology and instead, recorded all the sounds in proximity and the four men could often be heard discussing their scheme in normal voices. At one point they even shouted over a jackhammer, Hamilton wrote.
     "The sound quality of the audio recordings reflect that the recording devices only picked up voices in conversational or loud tones, and not hushed or whispered voices," Hamilton wrote.
     Privacy advocates are concerned the ruling could establish a precedent allowing law enforcement to eavesdrop on attorneys and clients discussing aspects of their cases outside the courtroom.
     Hamilton seems to anticipate this in her ruling.
     "It is unlikely, and certainly unreasonable, for attorneys to risk breaching their confidential communications with clients by discussing sensitive matters out in the open, in conversational tones, in front of a public forum such as a courthouse, where they could easily be overheard by other attorneys, prosecutors, law enforcement officers, security personnel, court staff, judges, and other bystanders," she writes. "As an aside, 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."
     Meanwhile, the trial against the four individuals will proceed. According to the government, the four defendants made use of the voluminous numbers of foreclosures from 2008 to 2011, in the thick of the national housing crisis.
     In California, foreclosed houses are often auctioned off on the courthouse steps. For this reason, government lawyers argued there was a need to place recording devices in proximity to the auctions to gather details on the alleged fraud.
     Martha Boersch, who represents the defendants, declined to comment.  

[Auntie Mame]

This judge's ruling is sobering. She says you have no expectation of privacy, standing out in the open. I know these guys are probably scumbags, but with this ruling, it's probably best for all to be concerned.

[glorgau]

So, unless you are in a cone of silence or on your own property (and your taxes are up to date) everything said is fair game.

[ThunderSleeps]

In this day and age of big-brother, nanny-state surveillance etc... I believe there are fascist wannabes out there in positions of power and authority that believe unless you are taking explicit and not insignificant steps to ensure your privacy, then you have no reasonable expectation of privacy.

In other words, there are lots of government types that feel if they can get at your information, then they are entitled to it without a warrant. "for your safety" "for the children" etc. etc. They can rationalize it however they want, but they just want to know what we're doing in case it might interest them and their dreams of power.

[bert]

-——She says you have no expectation of privacy——

in a public place..... she is right

collusion for illegal matters must take place in a secure location where there is in fact a right to privacy

[Hugh the Scot]

IOW: We are spying on everything you do already, don’t be surprised when it works...

[Cboldt]

-- This judge's ruling is sobering. She says you have no expectation of privacy, standing out in the open. --

Usually "reasonable" is decided by the jury. But when it comes to privacy, the government defines the reasonable expectation of privacy. Not many people know that SCOTUS first wiretapping decision concluded there is no reasonable expectation of privacy in any telephone call.

It is a mistake to think that the government will recognize any privacy that you don't deliberately and carefully create and guard.

[Real Cynic No More]

What’s sauce for the goose.....

Government conspirators better beware.

[circlecity]

I don’t have a problem with this ruling. It’s the same right that lets us record the public actions of police and authorities with cell phones and cameras. Besides, police have been using parabolic microphones to record public conversations of mob guys for years.

[Cboldt]

-- I believe there are fascist wannabes out there in positions of power and authority that believe unless you are taking explicit and not insignificant steps to ensure your privacy, then you have no reasonable expectation of privacy. --

Millions of them, and they are not just wannabe, they have the legal right to use force of violence to get their way.

[bert]

no, not at all. the FBI recorded conversations of miscreant conspirators. They never record me or you unless of course you are a miscreant.

[rfreedom4u]

BUT what if you are speaking with your attorney? Or spouse?

Attorney-client privilege?
Spousal privacy?

[rfreedom4u]

collusion for illegal matters must take place in a secure location where there is in fact a right to privacy

You mean like Congress or democrat’s emails?

[Spktyr]

That particular decision came about in a time where there were banks of human operators manually switching calls where they needed to go and they needed to be able to hear the caller and recipient to route the calls. Technically, that was a correct decision for the day as you *had* to have a third party listening in just to get many calls accomplished.

[Hugh the Scot]

That’s funny right there, I don’t care who ya’ are...

[CGASMIA68]

Looks like we all need a private jet

[originalbuckeye]

IIRC, didn’t Maxine Waters admit that this Admin is collecting mountains of data, from any and every source available, the likes of which no one has ever seen before? And it is all being stored at that massive facility in Nevada? With the 8 years of the Obama Admin, snooping into every dark and/or light corner of our lives, personal privacy is a thing of the past.

[drop 50 and fire for effect]

It is not the who is conversing, it is the where. They were on the exterior steps of a public building. Anyone can access those steps at any time.

Privilege extends to those locations, office, home, etc... where it is reasonable to expect privacy. Those places need a warrant.

[Cboldt]

The business protocol then, as now (any call can be listened in to by a human) was the operator was going to disconnect herself. The rationale in Olmstead was that "the listening equipment was installed outside the houses involved," which was true then and is true now.

SCOTUS shift was the typical "blow with the political winds." The public and even Congress rejected the decision.

The United States takes no such care of telegraph or telephone messages as of mailed sealed letters. The Amendment does not forbid what was done here. There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing, and that only. There was no entry of the houses or offices of the defendants.

By the invention of the telephone fifty years ago and its application for the purpose of extending communications, one can talk with another at a far distant place. The language of the Amendment cannot be extended and expanded to include telephone wires reaching to the whole world from the defendant's house or office. The intervening wires are not part of his house or office any more than are the highways along which they are stretched.

[JimRed]

...the four did not have a reasonable expectation of privacy...

She says you have no expectation of privacy, standing out in the open.

With all due respect, I believe the key word is "reasonable". Of course that word IS subject to interpretation...

[Boogieman]

This judge is an idiot, and the ruling should be reversed on appeal I hope. If four people whispering to each other can’t have any expectation of privacy, then this is 1984...