CA11: Warrantless recording and monitoring of private attorney-client conversations in a police station interview room clearly violated 4A

Warrantless recording and monitoring of private attorney-client conversations in a police station interview room violated clearly established Fourth Amendment law, so no qualified immunity. [Talk about “clearly established law” …] Gennusa v. Canova, 748 F.3d 1103 (11th Cir. 2014):

We begin with the warrantless monitoring and recording of the attorney-client conversations of Mr. Studivant and Ms. Gennusa. The district court held that Det. Marmo and Sgt. Canova violated the Fourth Amendment because Mr. Studivant and Ms. Gennusa had a “subjective expectation[ ] that their conversations were private” and because this expectation, given the confidential attorney-client nature of the conversations, was “objectively reasonable.” See Gennusa, 879 F. Supp. 2d at 1346-49. The district court also denied qualified immunity to Det. Marmo and Sgt. Canova. Acknowledging that there was “no case precisely on point,” the district court explained that since the late 1960s “it has been clearly established that the Fourth Amendment prohibits the police from electronically intercepting communications without a warrant when the speakers have a reasonable expectation of privacy.” See id. at 1349-50.

On appeal, Det. Marmo and Sgt. Canova challenge the district court’s qualified immunity ruling on two grounds. They argue that neither Mr. Studivant nor Ms. Gennusa had a reasonable expectation that their attorney-client conversations in the interview room would be private, and that, as a result, there was no constitutional violation. See Br. for Appellants at 15-16. They also contend that it was not obvious to a reasonable officer in June of 2009 that monitoring and recording those conversations without a warrant violated the Fourth Amendment. See id. at 16-18. As we explain, neither argument carries the day.