Privacy Law

Audio recorded by warrantless FBI bugs outside courthouse didn't violate Constitution, judge rules

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A federal judge in California has refused to suppress conversations recorded by the FBI without a warrant on secret devices outside courthouses in Alameda and Contra Costa counties.

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. As a result, Hamilton said, there was no violation of the defendants’ Fourth Amendment rights. The Recorder (sub. req.) and covered the July 22 opinion (PDF).

Hamilton said the conversations were “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 one conversation near the bus stop, she wrote, the participants “had to project their voices and yell to be heard over the sound of a nearby jackhammer.”

“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,” she wrote, “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.”

Hamilton ruled in a case involving allegations that investors conspired to manipulate real estate auctions. Defense lawyers in a case involving other defendants are also seeking to suppress the audio recordings.

The case is United States v. Marr.

Hat tip to @OrinKerr.

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