A federal judge has ruled the FBI took an investigation of real estate bid-rigging too far, by secretly recording 200 hours of conversations outside the San Mateo County Courthouse, and he barred use of the recordings.
“The government has utterly failed to justify a warrantless electronic surveillance program that recorded private conversations spoken in hushed tones by judges, attorneys, and court staff entering and exiting the courthouse,” wrote U.S. District Judge Charles Breyer on Monday.
He ordered the audio tapes suppressed in the case against Joseph Giraudo, Raymond Grinsell, Kevin Cullinane, James Appenrodt and Abraham Farag.
The five men were charged in 2014 with a scheme to drive down the price of foreclosed properties during public auctions outside the Redwood City courthouse.
Breyer said that even putting aside the sensitive nature of the courthouse location, the defendants showed that they believed their conversations were private and took steps to thwart eavesdroppers.
The Fourth Amendment prohibits the use of evidence gathered in violation of a defendant’s constitutional rights, Breyer said.
The FBI planted microphones on a bench, next to a sprinkler box, against the courthouse wall and near a planter box, all areas where auctioneers generally stood for the foreclosure sales.
In 2009, an undercover FBI agent posed as an investor during some auctions but when the subjects became suspicious and stopped talking to him the agents moved to use of secretly recording conversations on the steps of the courthouse.
In addition, the agents had two unmarked cars parked 30 feet away from the auction concealed two recording devices, one capturing audio and video and the other recording only audio.
This is not the first time a tactic of recording in a public spot has caused controversy. Back in 1995, the FBI bugged North Beach sidewalks outside two popular cafes to capture conversations in a cocaine investigation that eventually resulted in 27 indictments.
Breyer warned in this case, “With continuing advances inn technology, private conversations may become anachronistic rituals reducing intimate encounters to silent exchanges of notes. But that day has not arrived. Until it does, our Fourth Amendment protections should be defined by traditional circumstances.”
Case: U.S. v. Giraudo, No. 14-CR-534