The FBI planted recording devices outside two courthouses in Northern California to catch conversations on the street between their targets. The devices were planted in a light fixture, a bus stop, and on a parked vehicle. The court finds no reasonable expectation of privacy in the conversations because the conversations were in normal volume that were loud enough to be caught by passersby, “whether at the courthouse entrance or at the bus stop, undermining the reasonableness of any subjective expectation of privacy.” It did not matter at all to the court that no one else did overhear; just that it was theoretically possible, suggesting a whisper might have shown a reasonable expectation of privacy because the eavesdropping device did not catch whispers. [This is wrong, but read it because, if this opinion survives appeal, the only place there may be a reasonable expectation of privacy is in one’s own home and one’s own mind.] United States v. Marr, 2016 U.S. Dist. LEXIS 96172 (N.D.Cal. July 22, 2016) [this will be in §§ 3.09, 3.11, 3.12 & 42.04 in 2016 supplement]:
The government contends that defendants did not have a reasonable expectation of privacy in their public oral communications outside the county courthouses, challenging both their subjective expectation of privacy and the reasonableness of that expectation. The parties agree that the applicable factors to consider in determining whether an individual can demonstrate a reasonable expectation of privacy are set forth in Kee v. City of Rowlett, 247 F.3d 206, 213-15 (5th Cir. 2001)):
(1) the volume of the communication or conversation;
(2) the proximity or potential of other individuals to overhear the conversation;
(3) the potential for communications to be reported;
(4) the affirmative actions taken by the speakers to shield their privacy;
(5) the need for technological enhancements to hear the communications; and
(6) the place or location of the oral communications as it relates to the subjective expectations of the individuals who are communicating.
See Reynolds v. City and County of San Francisco, 2012 U.S. Dist. LEXIS 47875, 2012 WL 1143830 at *5 (N.D. Cal. Mar. 30, 2012) (citing Kee).
1. Subjective Expectation of Privacy
Defendants contend that their subjective expectation that their conversations would remain private is demonstrated by the secretive and confidential nature of the secondary auctions, citing cases recognizing the subjective expectation of privacy by people attempting to conceal unlawful activity. See U.S. v. Nerber, 222 F.3d 597, 603 (9th Cir. 2000) (affirming finding of subjective expectation of privacy in the defendants’ hotel room where, “[i]n addition to closing the door, drawing the blinds, and exercising dominion over the room after the informants left at 10:00 a.m., defendants ingested cocaine and brandished weapons in a way they clearly would not have done had they thought outsiders might see them.”). The evidence in the record does not support an inference that defendants attempted to keep their conversations secret in order to conceal unlawful activity, in light of the evidence that they conducted their rounds in open, public areas and evidence suggesting that defendants did not expect that they could be prosecuted for bid-rigging. See Patchen Decl. (doc. no. 109-1), Ex. C at 15 (under seal) (indicating that Casorso did not believe his involvement in rounds amounted to bid-rigging). The government provided evidence that Casorso told the FBI, “If there are 30 bidders present at auction there are usually 12 bidders who are willing to work a deal.” Patchen Decl., Ex. C at 3 (under seal). The government also offered hearsay in the form of press articles quoting Casorso flagrantly admitting how the secondary rounds were conducted. While this evidence may not be admissible at trial on the issue of guilt, the court finds that these statements are consistent with Casorso’s statements to the FBI regarding his state of mind.
Defendants Sanchez and Casorso submitted self-serving declarations stating that they believed their conversations were private, but offer no facts to demonstrate their subjective beliefs. Defendants argue that they took steps to protect their conversations by moving away from other people, standing close together, covering their mouths and speaking in low volumes. See Defs’ Resp. to Surreply re Mot. Suppr. Recordings (doc. no. 112) at 3. Defendants offer no declaration attesting to these attempts to maintain privacy, but defense counsel argued at the hearing that defendants cannot be expected to remember what steps they took to protect the privacy of each conversation that was recorded without their knowledge six years ago.
The evidence in the record, including audio recordings of the intercepted communications, suggests that defendants communicated near the courthouse entrance openly with up to 12 people at a time to work out the secondary auction. These circumstances do not demonstrate a subjective expectation of privacy, even in light of defendants’ conclusory statements that they believed their conversations were private. In having these conversations, the “rounders” did not leave the vicinity of the public auctions, which were held outside the courthouse just prior to the secondary auction. The auctioneer would typically position himself at the top of the steps or midway on the landing of the steps of the courthouses to conduct the public auctions, which were held weekdays from 12 noon to 12:30 pm at the Alameda County courthouse, and at 10:00 am and 1:30 pm at the Contra Costa County courthouse. Wynar Decl. ¶¶ 8, 12. Defendants took part in the recorded conversations at or near the courthouse entrance or at the corner bus stop bearing a “County Court House” sign. Sambat Decl., Exs. G, H, I. Other than defendants’ own conclusory statements, there are no reliable facts in the record to support a finding that any defendants had a subjective expectation of privacy in the conversations at issue.
Even if defendants’ conclusory assertions of their subjective expectations were supported by facts, the Kee factors render those expectations objectively unreasonable, particularly the factors: proximity or potential of other individuals to overhear the conversation, potential for communications to be reported, and location of the communications, as it relates to their subjective expectations. Having listened to the recordings at issue, the court finds that defendants did not take steps to protect the privacy of the conversations that were audibly recorded.
a. The volume of the communication or conversation
. . .
b. The proximity or potential of other individuals to overhear the conversation
The fact that the rounds were conducted in open, public areas close to the courthouse entrance, where the public auctions had just been held, and where various members of the public, including law enforcement officers and attorneys, come and go, does not support a reasonable expectation of privacy under the second Kee factor. Defendants suggest that private affairs are routinely discussed outside courthouses, including attorney-client communications. Mot. Suppr. Recordings (doc. no. 68) at 7. It is unlikely, and certainly unreasonable, for attorneys to risk breaching their confidential communications with clients by discussing sensitive matters out in the open, in conversational tones, in front of a public forum such as a courthouse, where they could easily be overheard by other attorneys, prosecutors, law enforcement officers, security personnel, court staff, judges, and other bystanders. 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. Defendants cite no authority recognizing an objectively reasonable expectation of privacy in the space immediately outside a courthouse entrance.
c. The potential for communications to be reported
. . .
d. Affirmative actions taken by the speakers to shield their privacy
Defendants have not offered evidence to show affirmative actions taken to protect their privacy, other than suggesting in their brief that they tried moving away from other people, standing close together, covering their mouths and speaking in low volumes. Having listened to the recordings at issue, many of which were accompanied by video images, the court determines that when a speaker spoke in a quiet voice or leaned in to whisper to the listener, the communication was not audibly intercepted by the recording device. Based on the recorded communications that are audible or intelligible, it is clear that defendants did not take measures to keep their conversations private. Unlike Katz, where the defendant went into a phone booth and closed a glass door to protect his privacy, defendants did not enter an enclosed space but stayed in an open, public area. The photos of the Fallon Street bus stop show that the bus shelter was not closed, but opened to the street, and was located at a busy corner with pedestrian traffic and street traffic. Sambat Decl., Exs. G, H, I.
e. The need for technological enhancements to hear the communications
. . .
f. The place or location of the oral communications in relation to the subjective expectations of the individuals who are communicating
Given the proximity of defendants to the courthouse entrance, which was the site of the public auction, when they conducted communications about the secondary auctions, the context of the conversations does not support a legitimate expectation of privacy.
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. There are no cases which establish a bright line rule one way or the other. Instead, the court is required to apply the Kee factors to the evidence of record. Based upon a review of that evidence, the court cannot find that any subjective expectation of privacy held by defendants was objectively reasonable. Accordingly, the court finds that the warrantless recording of defendants’ conversations did not violate their rights under the Fourth Amendment or under the wiretap statute. The court need not reach the taint issue and defendants are not entitled to an evidentiary hearing. The motion to suppress is therefore DENIED.
Remember the movie The Conversation with Gene Hackman, directed by Francis Ford Coppola? Also think of the idiom “you and me and the fence post”? Should you assume the fence post is bugged?
Under the rationale of this case, the fact you look around to make sure no one can hear you before you talk, and you do in a normal tone of voice, completely assured that no one nearby can hear you, you still have no reasonable expectation of privacy if there was merely a theoretical possibility somebody could have overheard you, even if no one ever did (but for the eavesdropping). Even Charles Katz would have had no reasonable expectation of privacy in his own end of the telephone conversation if there was a mere chance somebody could have overheard it. Reality doesn’t matter; mere chance does. And that’s not objective reasonableness.
1984 was not just a book — it’s here.
An actual, subjective expectation of privacy obviously has no place in a statement of what Katz held or in a theory of what the Fourth amendment protects. It can neither add to, nor can its absence detract from, an individual’s claim to Fourth amendment protection. If it could, the government could diminish each person’s subjective expectation of privacy merely by announcing half-hourly on television that 1984 was being advanced by a decade and that we were all forthwith being placed under comprehensive electronic surveillance.
Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 384-85 (1974) (footnotes omitted).