A federal judge in California ruled that the FBI acted lawfully when it placed recording devices around the steps of two county courthouses.
District Judge Phyllis Hamilton said, however, that the surveillance scheme was “unsettling.”
According to filings, the government bugged light fixtures along the steps and in nearby proximity to courthouses in Alameda County and Contra Costa County, in hopes of acquiring incriminating evidence on four defendants accused of real estate fraud.
Lawyers for the defense had attempted to suppress the recorded conversations, saying they were collected in violation of the Fourth Amendment.
In her decision issued last week, Hamilton was sympathetic to the concerns of the defense, but decided to allow the tapes to be admitted as Grand Jury evidence. She said the accused had no reasonable expectation to privacy.
“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,” Judge Hamilton wrote.
She added, however, that 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.”
The defense said that their clients did, indeed, have an expectation of privacy, since they huddled together and spoke in “hushed tones.” Hamilton noted, however, that the men also spoke at a conversational volume on the tapes, and, at one point, could be heard attempting to shout over the noise of nearby construction.
Hamilton also claimed that her ruling shouldn’t establish a precedent that could erode attorney-client privileges, by allowing the feds to eavesdrop on sensitive conversations around a courthouse.
“It is unlikely, and certainly unreasonable, for attorneys to risk breaching their confidential communications with clients by discussing sensitive matters out in the open,” she stated. “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.”
Grand Jury proceedings against the defendants Michael Marr, Gregory Casorso, Javier Sanchez and Victor Marr are set to move forward. The four are accused of rigging bids at foreclosure auctions during the height of the housing crisis, between 2008 and 2011.
