Federal judge tosses audio evidence picked up on warrantless FBI bugs outside courthouse
A federal judge in San Francisco has refused to admit as evidence more than 200 hours of audio recordings collected by FBI bugging devices placed outside the courthouse in San Mateo County, California, without a warrant.
In a decision (PDF) on Monday, U.S. District Judge Charles Breyer said the government “has utterly failed to justify a warrantless electronic surveillance program that recorded private conversations spoken in hushed tones” by speakers that included judges and lawyers.
Breyer said the recordings violated the Fourth Amendment, report Ars Technica and the Recorder (sub. req.)
“With continuing advances in technology, private conversations may become anachronistic rituals reducing intimate encounters to silent exchanges of notes,” Breyer wrote. “But that day has not arrived. Until it does, our Fourth Amendment protections should be defined by traditional circumstances.”
Breyer ruled in a case alleging a conspiracy to manipulate public real estate auctions. The bugs were planted in a sprinkler box, in a planter box, in unmarked police vehicles parked on the street in front of the courthouse, and in a backpack.
Breyer said the recording devices picked up conversations that could not have been overheard except by a participant in the conversation, and words that would not have been spoken had another person been nearby.
One microphone picked up a conversation between a judge and prosecutor discussing “caseloads, the quality of attorneys appearing before the judge, and a request from the judge that the prosecutor not blame his deputies for certain events,” Breyer said. Another picked up a conversation between two women discussing details of their personal lives “that ranged from the private to the salacious.”
Breyer elaborated in a footnote. “Although slightly blue for the pages of the Federal Supplement,” he wrote, “the general details of the conversation are as follows: A woman discussed physical intimacy with a boyfriend, a person stuffing a dollar bill down her bra, and her relationship insecurities—including references to an ultimatum planned for Valentine’s Day. … The record is silent as to whether the threatened ultimatum was issued.”
A different federal judge reached a contrary conclusion last month in an alleged auction rigging case involving secret FBI bugs outside courthouses in California’s Alameda and Contra Costa counties.
In that case, U.S. District Chief Judge Phyllis Hamilton of Oakland said the defendants had no reasonable expectation of privacy in the conversations, which were recorded in 2010 by devices placed by the courthouse steps, on nearby vehicles and by a courthouse bus stop.
