Surreptitious recordings outside the San Mateo courthouse of persons talking amongst themselves were entitled to a reasonable expectation of privacy because they talked such that others could not overhear them except with planted recording devices. The court will conduct a hearing on remedy, and the Title III remedy is broader than the Fourth Amendment. United States v. Giraudo, 2016 U.S. Dist. LEXIS 176813 (N.D.Cal. Dec. 21, 2016), prior opinion, 2016 U.S. Dist. LEXIS 100486 (N.D. Cal. Aug. 1, 2016) (prior opinion posted here):
The Court, as is in vogue, begins with the statutory text. See Sebelius v. Cloer, 133 S. Ct. 1886, 1893, 185 L. Ed. 2d 1003 (2013). An “aggrieved person” under Title III includes not just “a party” to an intercepted communication, but also anyone “against whom the interception was directed.” 18 U.S.C. § 2510(11). So, for a start, Title III must accord standing to people other than those who were parties to unlawfully intercepted communications, lest Section 2510(11)’s second clause do no work. See Williams v. Taylor, 529 U.S. 362, 404, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000) (reminding courts to “give effect, if possible, to every clause and word of a statute”). For that reason, the Ninth Circuit has made clear that the “definition of aggrieved person is broader than any person whose … communication is intercepted.” Noel v. Hall, 568 F.3d 743, 748 n.7 (9th Cir. 2009). The question here, then, turns on whether Defendants were people “against whom the interception was directed.” 18 U.S.C. § 2510(11).
Because Title III elaborates no further, the Court should look to the “ordinary meaning” of those words. See, e.g., Schindler Elevator Corp. v. United States ex rel. Kirk, 563 U.S. 401, 407, 131 S. Ct. 1885, 179 L. Ed. 2d 825 (2011). It is hard to imagine the phrase “against whom the interception was directed” not covering “the target of the surveillance,” United States v. Oliva, 705 F.3d 390, 395 (9th Cir. 2012), even if that person were not a participant in the captured conversation or the owner of the premises where it occurred. Many courts agree. See, e.g., id.; United States v. Scurry, 821 F.3d 1, 7 (D.C. Cir. 2016); United States v. Terry, 572 F.3d 430, 431-32 & n.2 (7th Cir. 2009); United States v. Apple, 915 F.2d 899, 905 (4th Cir. 1990); United States v. Civella, 648 F.2d 1167, 1171 (8th Cir. 1981). Accordingly, the most natural reading of the statute suggests that a person has standing under Title III if (1) “he was a party to an intercepted communication,” (2) “the intercepted communications took place on his premises,” or (3) “the government’s efforts were directed at him,” Apple, 915 F.2d at 905. Accord Oliva, 705 F.3d at 395.
The government disagrees, citing forty-five year old dicta in Alderman. See Gov’t Br. at 2. That case noted that “Congress or state legislatures may extend the exclusionary rule” beyond the constitutional floor but, based on a Senate Committee Report, said that Title III had not done so. Alderman, 394 U.S. 165, 175, 89 S. Ct. 961, 22 L. Ed. 2d 176 & n.9 (1969); see also S. Rep. 90-1097 (provision defining “aggrieved person” was “intended to reflect existing law”). Alderman, however, was a Fourth Amendment case concerning events that happened before Congress passed Title III, see id. at 167-70 & n.4, and so its musings on the statute are just that.
Nonetheless, courts — including the Ninth Circuit — have opined that a defendant may suppress evidence under Title III only if, as under the Fourth Amendment, either (1) “he was a participant in an intercepted communication,” or (2) “if such conversation occurred on his premises,” United States v. King, 478 F.2d 494, 506 (9th Cir. 1973). Accord United States v. Gonzalez, Inc., 412 F.3d 1102, 1116 (9th Cir. 2005) (relying on Alderman to observe that the “Supreme Court has interpreted these provisions as limiting standing to challenge wiretaps to persons whose Fourth Amendment rights were violated by the interception.”); United States v. Taketa, 923 F.2d 665, 676 (9th Cir. 1991); United States v. Scasino, 513 F.2d 47, 50 (5th Cir. 1975); United States v. Bynum, 513 F.2d 533, 535 (2d Cir. 1975).
The Court is not bound to read the statute that way. United States v. King held that one defendant had standing as a party to an unlawfully intercepted communication, and that the government had not waived its standing arguments as to two other defendants who conceded that they had none. King, 478 F.2d at 506. United States v. Gonzalez, Inc. held that the defendants had standing under Title III because they owned and “had substantial control” over operations of an office that law enforcement had surveilled. Gonzalez, Inc., 412 F.3d at 1116. And United States v. Taketa held that a defendant had standing to suppress video surveillance because he himself was filmed. Taketa, 923 F.2d at 676-77. These cases thus had no occasion to pass on whether a mere “target of the surveillance,” Oliva, 705 F.3d at 395, has standing under Title III.
But United States v. Oliva did. There the defendant refused to admit whether his voice was captured on unlawful recordings or whether they took place on his premises. Oliva, 705 F.3d at 395. The Ninth Circuit nevertheless held that the defendant had standing under Title III because his conversations were “the target of the surveillance,” full stop. Id. And although officers “averred that the defendant ‘was using the individual cell phones at issue,'” Gov’t Br. at 2 n.1 (quoting Oliva, 705 F.3d at 395), that fact mattered because it proved that they were targeting the defendant — not because it somehow proved that he was indeed using those cell phones.10 Oliva controls.
10. A quick skim of the surrounding language delivers the knockout blow here:
“Irrespective of Oliva’s refusal to admit that the voices in the conversations intercepted included his own or that any of the intercepts took place on his premises, Oliva was one of the individuals ‘against whom the interception[s] w[ere] directed.’ § 2510(11). The affidavits in support of the surveillance orders included investigators’ statements certifying their beliefs that he was using the individual cellular phones at issue. Oliva’s conversations were the target of the surveillance. See [case]. We therefore hold that Oliva has standing.” Oliva, 705 F.3d at 395.
III. CONCLUSION
Defendants have standing, under Title III, to suppress all stationary audio recordings made after they became targets of the investigation, see Order on Mot. to Suppress at 11 (providing relevant dates), as well as any “evidence derived therefrom,” 18 U.S.C. § 2515. That is a broader remedy than the Fourth Amendment provides, but statutory text and binding precedent compel the result.
At the evidentiary hearing, the Court will determine what evidence (if any) is tainted by the stationary audio recordings, regardless of whether they captured a particular Defendant’s voice. The hearing will proceed as agreed: the agents will take the stand, testify as to what they did with the stationary audio recordings, and face cross-examination. See 11/21/16 Hr’g. Tr. (dkt. 187) at 30:7-32:23.
