Egregious Eavesdropping Wins Police No Favors

     (CN) - Florida police who unlawfully recorded conversations between an attorney and her client were properly denied immunity, the 11th Circuit ruled.
     The Tuesday decision stems from a 2009 investigation into a possible misdemeanor violation of a domestic violence injunction.
     It is undisputed that, during the course of this investigation, Detective Thomas Marmo conducted a noncustodial interview with the suspect Joel Studivant at the St. Johns County Sheriff's Office.
     Anne Marie Gennusa, Studivant's attorney, was present during the interview.
     During the interview, Studivant agreed to prepare a sworn written statement. Marmo left the room and closed the door after Studivant began writing. Neither Studivant nor Gennusa knew that Marmo and Sgt. Brian Canova had continued to monitor their conversation via a closed-circuit camera.
     The camera was not obviously recognizable, no signs warned visitors of the possibility of electronic surveillance, and neither Studivant nor Gennusa had been told that they were being recorded or monitored.
     During their time alone, the attorney and her client discussed matters related to the investigation.
     Marmo then returned to the interview room and told Studivant he was under arrest. At this point, Studivant changed his mind about handing in his written statement.
     As Studivant and Gennusa explained themselves, Marmo forcibly grabbed the statement from the table, which Gennusa was holding down with her hand.
     He then arrested Studivant for violation of the domestic violence injunction, and later attached the written statement to his arrest report.
     Studivant ultimately entered into a deferred prosecution agreement, and the criminal charge against him was dismissed.
     Studivant and Gennusa both sued Marmo and Canova in their individual capacities, and U.S. District Judge Timothy J. Corrigan in Jacksonville ruled against the police at summary judgment.
     That ruling found that the surreptitious electronic eavesdropping violated the Fourth Amendment and the Federal Wiretap Act, and that the seizure of Mr. Studivant's written statement also contravened the Fourth Amendment.
     In affirming that the defendants lacked qualified immunity, the Atlanta-based 11th Circuit said "it has long been clearly established that the warrantless interception of private conversations - like the privileged ones here - offends the Fourth Amendment."
     "The only question, then, is whether the subjective expectation of privacy held by Mr. Studivant and Ms. Gennusa about their privileged attorney-client conversations is one that society recognizes as reasonable, and we easily conclude that it is," Judge Adalberto Jordan wrote for a three-judge panel. "An expectation of privacy is deemed reasonable, the Supreme Court has said, if it 'has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property or to understandings that are recognized and permitted by society.'"
     Supreme Court precedent also holds that whether an expectation of privacy is "legitimate" or "reasonable" necessarily entails a "balancing of interests."
     "Under this formulation, we come to the same conclusion. Here the competing interests are the interest of society in monitoring attorney-client conversations in a non-custodial setting at a sheriff's office and the interest of the attorney and client in keeping their privileged conversations in such a setting private," the judge wrote.
     "Given these interests, we readily strike the balance in favor of privacy," he added. "The government has no weighty law-enforcement, security, or penological interest in recording, without a warrant, the attorney-client conversations of a person who has not been arrested, even if those conversations take place in an interview room at a sheriff's office."
     In addition "Det. Marmo and Sgt. Canova did not properly assert in the district court that the seizure of Mr. Studivant's statement was permitted by the exigent circumstances exception to the Fourth Amendment's general warrant requirement," the 24-page ruling states.
     Absence such a rationale for their actions, Jordan said neither officer is entitled to qualified immunity.
     "In sum, Mr. Studivant and Ms. Gennusa had a reasonable expectation of privacy for their privileged attorney-client conversations in the interview room of the St. Johns County Sheriff's Office," Jordan wrote. "The surreptitious recording and monitoring of those attorney-client conversations, without notice to Mr. Studivant or Ms. Gennusa, and without a warrant, violated the Fourth Amendment."