Mimesis Law
16 February 2019

Reasonably Eavesdropping On The Courthouse Steps

July 27, 2016 (Fault Lines) — Death can be tricky to diagnose. In medical circles, controversy raged for decades  as people wondered whether death came when a person stopped breathing, when the heart stopped, or when all meaningful brain activity ceased. Similarly, every year or so, someone says the 4th Amendment is dead. Often, people take it as an exaggeration. But after a historically terrible district court decision out of California, it is at the very least in a persistent vegetative state.

In United States v. Marr, several men waited at the front steps of a California county courthouse shortly after a public auction, the sort that bids off foreclosed properties in the most modern way available: by shouting loudly and at great speed. The men stepped away to engage in what the United States government called “bid-rigging”—agreeing with other participants not to go above a particular price or not to bid on particular properties so that the others can get a better price.

The problem is that the men didn’t bring a white noise machine with them. They didn’t whisper or speak in hushed tones. They didn’t bring a powerful magnet to disable all nearby electronic devices. And as a result, hidden microphones on vehicles in front of the courthouse intercepted their conversation, allowing the Feds to bring charges.

Still, the men argued in a motion to suppress, surely the government can’t simply eavesdrop on every conversation that’s not held inside someone’s home? But the court was unsympathetic, holding that it was unlikely the men even expected their conversation to be private since they didn’t know that bid rigging was illegal:

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.

This is a nice change of pace. For a long time, we thought that private citizens couldn’t use ignorance of the law as an excuse. But they totally can. Just not for themselves.

Just in case it was wrong on the first part, the court also held that a subjective expectation of privacy wouldn’t be reasonable. The microphone would not pick up the conversation where it was muffled or whispered, and as for the rest of what the men said, the court reasoned that it could be heard by anyone who walks by. There’s a subtle distinction here the court may not be picking up on—the men weren’t whispering because they assumed they could see someone creeping up on them to listen. They never thought there’d be microphones on the cars or tiny orphans in the bushes with tape recorders.

As for the lawyers and litigants who often discuss private matters by stepping away from the courthouse and then speaking at normal volume,  the court could only say that they weren’t being reasonable. That’s the great thing about a “reasonableness” test—it’s infinitely flexible.

Note the double standard.

When the government expects privacy, it is always reasonable. You can’t get access to investigative records, disciplinary histories of law enforcement officers, or anything made “secret” by some statute or agency. If you ask the government for one of these things, they can simply say no. If you persist, you can be labeled a “freedom of information act terrorist” and blackballed. And if you were to simply step in without permission and take them, you would end up in jail for a long, long time.

By contrast, you can hope that the government doesn’t eavesdrop on your calls with loved ones. Or that no one is reading your e-mails. Or that there isn’t a camera on a telephone pole staring at your front door day after day. But the worst thing that can happen to the government when they test those expectations of privacy is that they can’t use the evidence they find in court (unless you’re on probation or they want to take your stuff or some new exception pops up out of nowhere).

And as the government gets more and more intrusive, your expectations of privacy only get less reasonable:

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.

The last detail is great. Is the court referring to the risk that someone might take out their cell phone and walk by you to record your conversation? Or the far more unsettling notion that the government can turn anyone’s cell phone into a hot mic at any time, then recreate what they find out through parallel construction to secure a conviction?

There was a time when stepping into a telephone booth was enough to hope that what you said might be kept between you and the other guy you were talking to. Now, you have to meet a complicated balancing test not to have your personal conversations broadcast to law enforcement. In a country with permissive judges and little public pressure to make the government do the right thing, maybe no expectation of privacy is reasonable. And without a reasonable expectation of privacy, the 4th Amendment may not be exactly dead, but it surely isn’t alive and well.

2 Comments on this post.

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  • Chris
    27 July 2016 at 9:57 am - Reply

    I’m not seeing a strong tie in to the actual text and intent of the 4th when you are openly talking about doing something illegal in public. It would be the same as if a plain clothes agent with really good hearing was standing by.

    Unlike dropping a hot mic into someone’s effects. A search, a seizure, an intrusion.

    It is why I hate it when judicially constructed mushy balancing tests like “reasonable expectation” become more important than the actual bill of rights itself. It is why our rights are safer with rules of strict interpretation, and laws and amendments on point with privacy, instead of illegitimate constituional common law.

    Case in point, Eaves dropping on lawyer client communications is a 6th amendment issue as well. Plus statutorily privileged. I don’t think you can use it, even if the lawyer and client are being carelessly loud.

    • losingtrader
      27 July 2016 at 1:06 pm - Reply

      “even if the lawyer and client are being carelessly loud”

      Oh really? How about a similar example:
      What about the careless lawyer with a client in his office, who thinks he has muted his telephone conversation with the prosecutor but hasn’t. Are the client’s statements to the attorney admissible?
      They certainly were admissible for criminal prosecution where the telephone conversation was with opposing counsel in a civil case but the client made criminal admissions of wiretapping the opposing counsel’s client.

      I know , i know, the rights can only be asserted against the government