FBI Plants Audio Surveillance Outside Courthouse
The use of an audio surveillance device, such as a hidden microphone or wiretap (aka a “bug”) is typically limited to law enforcement who have procured a warrant. For an agent of the government to secretly record a conversation without a warrant is typically considered a violation of one’s 4th Amendment protection. Recently, several FBI agents are finding themselves in hot water for planting audio surveillance devices in at least three locations around the entrance of the San Mateo County courthouse, without any warrant or judicial approval. In a case such as this, it crucial to understand several concepts: 1) what are the laws related to usage of audio surveillance devices by police, 2) can these recordings be used in court (since they were essentially obtained unlawfully), and 3) what techniques might an audio forensic expert use to prepare audio evidence created by such an audio surveillance device for court or other proceedings?
What Did the FBI Do that Was So Wrong?
Back in 2009 and 2010, the FBI planted several audio surveillance devices. One of the devices was planted in a metal sprinkler box attached to a wall near the courthouse entrance, the second in a large planter box to the right of the courthouse entrance, and a third device near the vehicles parked on the street in front of the courthouse entrance. The purported goal of the FBI was to record several real estate investors whom they believed were bid rigging and colluding to deflate prices at public foreclosure auctions. The listening devices were activated by agents an hour before the auctions on at least 31 occasions between December 22, 2009 and September 15, 2010. FBI agents then would switch off the devices after some time when the auctions were concluded. The auctions were held on the courthouse steps. The defense lawyers in this case were asking the U.S. District judge to throw out more than 200 hours of recorded conversations by FBI agents.
During the proceedings, Senior District Judge Charles R. Breyer expressed what he described as a gut level discomfort with the notion of government agents listening at the courthouse door. The judge said, “Let’s say I was out of that courthouse that day, I used the staff entrance and I turned my [sic] law clerk. I wouldn’t know [about that recording], would I, unless the government turned it over?”
Judge Breyer said that the targets of the investigation— the real estate investors—likely believed that their side conversations at the public auctions were private. Whether or not that expectation of privacy was reasonable, he added, would determine whether the 200 plus hours of recordings, and all evidence arising from them, would be suppressed.
The real estate investor’s defense attorneys, at Latham & Watkins, argued that the FBI does not have a right to use audio surveillance devices without appropriate warrants and that their clients had a reasonable expectation of privacy, even though the conversations were held in public places. To support this position, their attorney argued precedence from many well known cases related to the issue.
Case Law on the 4th Amendment and Audio Surveillance
In Katz v. United States, 389 U.S. 347, 351-52 (1967), the seminal case on modern Fourth Amendment interpretation, the Supreme Court affirmed the right of individuals to be free from warrantless government eavesdropping in places accessible to the public. Speaking in a public place does not mean that the individual has no reasonable expectation of privacy (eg. a public telephone booth). In Wesley v. WISN Division-Hearst Corp., 806 F. Supp. 812, 814 (E.D. Wis. 1992) the court stated, “[W]e do not have to assume that as soon as we leave our homes we enter an Orwellian world of ubiquitous hidden microphones.” Therefore, a private communication in a public place qualifies as a protected “oral communication” under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. (“Title III”), and therefore may not be intercepted without judicial authorization (eg. a warrant).
Did the FBI Need a Warrant?
David J. War, the attorney representing the U.S. Department of Justice, argued that the defendants participated in a conspiracy to rig bids and commit mail fraud at public real estate foreclosure auctions in the San Francisco Bay Area. He argued that little about these auctions was private: they were attended by dozens of people. They were held in an open and public area outside of the rear, employee-only entrance to a county building that housed a courthouse and sheriff’s offices. They were conducted near a closed-circuit surveillance camera that was conspicuously placed above that entrance. And they were adjacent to a curbside that was marked as designated for law-enforcement vehicles. County employees, uniformed law enforcement, and any and all bidders who wished to attend the auctions regularly used the space where these auctions were held and where the defendants’ conversations and activities were recorded. Under these circumstances, War argued, the defendants’ cannot establish that they had a reasonable expectation of privacy, thus, their conversations and activities were exposed for the public to hear and see and are therefore not protected by the Fourth Amendment or Title III.
Little Girls and Their iPhones
Arguments for whether or not the audio evidence may be used in court were heard in April 2016. The judge has yet to make a ruling. It is unclear, therefore, whether or not the evidence will be allowed. Historically, there have been times when unlawfully obtained audio recordings have been admitted as permitted evidence. In a recent custody dispute coming out of a Los Angeles Family Court, the children in question secretly recorded conversations with their father using an iPhone as an audio surveillance device. Despite such a recording being considered wiretapping, and therefore unlawfully obtained, the judge still admitted the recordings and considered them as evidence in making a custody decision. The major difference here, however, is that the children were not acting as agents of the government (i.e. police). Therefore even though the recordings were unlawfully obtained, there is no 4th Amendment violation.
A case such as the Family Law example illustrates that even though evidence was unlawfully obtained, there are circumstances where the evidence may be admissible in court. But just because these iPhone recordings may be used in court, the people making the recordings may have opened themselves up to civil litigation, fines, penalties, or even imprisonment.
If the FBI is successful in getting their audio recordings admitted into evidence, it may be necessary for an audio forensic expert to enhance aspects of the recording to better understand what is being said. For instance, since the recordings were made outside, there may be noises such as cars or wind that interfere. Various enhancement techniques could be used to reduce such interference. Presumably there were also other people talking that had nothing to do with the case. It may be necessary to isolate and eliminate unrelated conversations, where possible. Likewise, the defense may also desire to enhance aspects of the audio in order to create a forensic transcript which may become vital in refuting claims made by the prosecution.