D.Ariz.: Wiretap seizure of telephone calls with defense counsel was unreasonable and violated the Fourth Amendment

Wiretap seizure of telephone calls with defense counsel was unreasonable and violated the Fourth Amendment. United States v. Renzi, 722 F. Supp. 2d 1100 (D. Ariz. 2010):

Section 2518(10)(a)(i), however, provides that a defendant may move to suppress the contents of communications intercepted under that chapter on the grounds that “the communication was unlawfully intercepted.” The Supreme Court has opined that section (i) “must include some constitutional violations. Suppression for lack of probable cause, for example, is not provided for in so many words and must fall within paragraph (i) unless, as is most unlikely, the statutory suppression procedures were not intended to reach constitutional violations at all.” United States v. Giordano, 416 U.S. 505, 525-26, 94 S. Ct. 1820, 40 L. Ed. 2d 341 (1974). The Court finds that the privileged communications were unlawfully intercepted, under § 2518(10)(a)(I), in violation of Renzi’s Fourth Amendment protections.

The Fourth Amendment guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. CONST. AMND. IV. Because our society recognizes a person’s legitimate expectation of privacy when consulting with counsel, see DeMassa v. Nunez, 770 F.2d 1505, 1506-07 (9th Cir. 1985), the seizure of potentially privileged communications raises serious Fourth Amendment issues. See, e.g., Klitzman, Klitzman and Gallagher v. Krut, 744 F.2d 955, 960-62 (3d Cir. 1984) (requiring special procedures to protect the attorney-client privilege during the search of a law firm).

A search is unreasonable, and thus violates the Fourth Amendment, when it is performed without proper judicial authorization, Groh v. Ramirez, 540 U.S. 551, 562-63, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004), when the government seizes evidence beyond that which is authorized in the warrant, United States v. Mittelman, 999 F.2d 440, 445 (9th Cir. 1993), or when the government executes the search in an unreasonable manner. See San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 971 (9th Cir. 2005). Although the Wiretap Order did not address specifically the monitoring of privileged conversations between Congressman Renzi and his attorneys, Agent Odom specifically represented to the Supervising Court in his affidavit in support of the application for the interception of wire communications, that the government would minimize privileged calls and carefully train the monitors to recognize calls between lawyers and clients. By knowingly recording privileged calls, the government violated the Wiretap Order and seized evidence beyond that which was authorized. For these reasons, the government’s seizure of privileged calls violated the Fourth Amendment.