Court Says Bugs The FBI Planted Around California Courthouses Did Not Violate Anyone's Expectation Of Privacy

The FBI's surreptitious recording devices -- scattered around three California courthouses -- raised a few eyebrows when the recordings were submitted as evidence. The defense lawyers wondered whether the devices violated the conversants' expectation of privacy, admittedly a high bar to reach considering their location near the courthouse steps -- by every definition a public area.

The defense team cited a Supreme Court decision involving phone booths, hoping to equate their clients' "hushed tones" with closing a phone booth door. Small steps like these -- used by everyone -- are attempts to create privacy in public areas, but courts are very hesitant to join defendants in erecting privacy expectations in public places.

A judge presiding over one the cases (involving alleged bid rigging for auctioned property) thought there might be something a bit off about the location of the FBI's devices.

Although Breyer held off on ruling, he expressed at least gut-level discomfort with the notion of government agents listening at the courthouse door.

"Let's say I was out of that courthouse that day, I used the staff entrance and I turned my law clerk," the judge said. "I wouldn't know [about that recording], would I, unless the government turned it over?"

Judge Phyllis Hamilton, in her denial [PDF] of a motion to suppress the recordings, is similarly hesitant to condone the FBI's eavesdropping, but can't find enough of a reasonable expectation of privacy to prevent the recordings from being admitted as evidence. (via FourthAmendment.com)

First off, the conversations captured during these particular recordings showed the defendants made very little effort to speak in the "hushed tones" suggested by their defense team.

The recordings at issue intercepted defendants' communications that were made at a normal conversational volume level, not in hushed or whispering tones. Many conversations were conducted by participants in loud voices, sometimes laughing out loud. In particular, the audio recording of a conversation among a group of about eight to ten men on August 17, 2010, at the Fallon Street bus stop, which was played for the grand jury during the indictment presentation in United States v. Florida, et al., CR 14- 582 PJH, reflects that the participants had to project their voices and yell to be heard over the sound of a nearby jackhammer"

In the video footage accompanying many of the audio recordings, including the video clip that was played for Witness 1 and the grand jury, the participants are not seen appearing to whisper or covering their mouths when having audible conversations that can be heard on the recording.

The judge goes on to point out that these conversations could be overheard by many passersby, including the steady traffic of law enforcement personnel to and from the building. And when efforts were made to speak in quieter tones, the FBI's microphones were apparently unable to obtain audible recordings of these discussions.

However, the judge agrees that the location of the devices is somewhat questionable.

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 smart phone.

Given the facts of this case -- that the defendants apparently made little to no effort to prevent their conversations from being overhead -- this conclusion is likely the right one. But it goes on to suggest that no private conversation held in a public place can be considered to have an expectation of privacy, no matter what steps conversants might take to prevent being overheard. If even a slim possibility exists that someone other than those engaged in the conversation might be able to hear it, then there is no expectation of privacy.