Judge Wants To Know More About FBI's Secret Recordings Of Conversations Near Courthouse Steps

Last November, lawyers defending five real estate investors against auction price-rigging allegations discovered the FBI had planted bugs to capture conversations during real estate auctions on the San Mateo (CA) Courthouse steps. The lawyers questioned whether these surreptitious recordings violated wiretap laws, despite them taking place in a public area. As they noted, investors often huddled away from the steps to discuss bidding strategies in "hushed tones" in order to prevent competitors from overhearing them. According to these lawyers, the "hushed tones" were not unlike the closing of a phone booth door -- a key element in the Supreme Court's 1967 Katz decision, which found an expectation of privacy could be found in public areas, provided the person being targeted by recording devices performed certain actions.

Here, the Government targeted conversations that an informant and an undercover agent with full access to the public place were apparently unable to overhear. The evidence will show that Defendants often took affirmative steps to create a zone of privacy for their communications, such as moving away from others, standing close together, covering their mouths, and speaking in low volumes.

Now, the judge presiding over the case has a few questions of his own. (non-reg/paywall link)

On Thursday at a hearing before U.S. District Judge Charles Breyer, prosecutors and defense lawyers clashed over whether the tactic crossed a constitutional line. Government lawyers, who used the microphones to investigate a federal bid-rigging case, contend that individuals picked up on the recordings were speaking in a public place and thus had no reasonable expectation of privacy. Defense lawyers insist that the surveillance, conducted without judicial approval, amounted to unlawful government eavesdropping and want Breyer to suppress all evidence derived from the devices. Although Breyer held off on ruling, he expressed at least gut-level discomfort with the notion of government agents listening at the courthouse door. "Let's say I was out of that courthouse that day, I used the staff entrance and I turned my law clerk," the judge said. "I wouldn't know [about that recording], would I, unless the government turned it over?"

The government must have its own doubts about the legitimacy of the recordings, despite arguing that there's no expectation of privacy in public places. The FBI collected more than 200 hours of recordings during its price-fixing investigation, and the government has stated it won't be trying to enter any of it into evidence. In fact, it would like the whole thing to just go away and has asked Judge Breyer to declare the defense's motion moot. Judge Breyer hasn't been swayed by the prosecution's offer to sweep its possibly illicit bugs under the rug.

"I have to be satisfied that there's no taint from the recordings on the rest of the evidence in the case," Breyer said. "The answer is, I'm not satisfied."

Hopefully, Breyer will continue to dig into this. The government's assertions about public places and their lack of privacy may be correct, but efforts made by those recorded to keep their conversations from being overheard by others makes it clear members of the public will try to carve out privacy where none is expected from a legal standpoint. This is an issue that needs to be examined further in light of the Katz decision. On top of that, the FBI's handling of the recordings was lackadaisical at best, and shady at worst.

[FBI agent] Wynar said that most times he manually turned the devices on about a half-hour prior to the auctions and turned them off afterward. He said that he didn't remember any instances of the devices recording attorney-client conversations or the discussions of employees entering and exiting the building.

All well and good, but without a third party examining the recordings, it's a little tough to take someone at their word when they're trying to preserve both a surreptitious recording method and submitted evidence. The defense team has already poked holes in the agent's selective memory, pointing out a 14-minute recording between two courthouse employees that contained a very personal discussion about money, lingerie and a third party's "lack of intelligence" was captured along with more relevant conversations. The agent stated he "did not remember" listening to this conversation. And it'