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United States v. Marr

United States District Court, N.D. California

July 22, 2016


          PRETRIAL ORDER NO. 3

          PHYLLIS J. HAMILTON United States District Judge.

         Before the court is defendants’ motion to suppress warrantless audio recordings (doc. no. 68). The parties have filed supplemental post-hearing briefs, declarations and exhibits, and the matter is submitted. Having reviewed the relevant legal authority, the parties’ papers, argument of counsel, and evidence in the record, the court DENIES the motion to suppress for the reasons set forth below.

         I. BACKGROUND

         Defendants challenge the warrantless use of audio recording devices to capture private conversations at the public entrance to the Alameda and Contra Costa County courthouses, on the ground that they had a reasonable expectation of privacy in their communications. Doc. no. 68. As conceded by defense counsel, defendants do not assert a reasonable expectation of privacy as to the video recordings. Defendants also seek suppression of evidence tainted by the unlawful recordings. Accordingly, the government’s concession that it will not use the courthouse recordings in its case-in-chief does not moot the motion to suppress the recordings.


         The United States Constitution protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. “The Fourth Amendment protects people rather than places, but ‘the extent to which the Fourth Amendment protects people may depend upon where those people are.’” United States v. Nerber, 222 F.3d 597, 599 (9th Cir. 2000) (quoting Minnesota v. Carter, 525 U.S. 83, 88 (1998)). To invoke the protections of the Fourth Amendment, a person must show he had a “legitimate expectation of privacy.” Katz v. United States, 389 U.S. 347 (1967). In Katz, the Supreme Court held that as long as the target has a legitimate expectation of privacy, a warrant is required for the government to conduct electronic surveillance. To establish a “legitimate” expectation of privacy, he must demonstrate a subjective expectation that his activities would be private, and he must show that his expectation was “‘one that society is prepared to recognize as reasonable.’” Nerber, 222 F.3d 597, 599 (quoting Bond v. United States, 529 U.S. 334, 338 (2000)).

         Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2522, prescribes the procedure for securing judicial authority to intercept wire communications in the investigation of specified serious offenses, and provides for suppression of unlawfully intercepted communications.

Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court . . . if the disclosure of that information would be in violation of this chapter.

18 U.S.C. § 2515. Section 2510(2) defines “oral communication” as “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.” The Ninth Circuit has recognized that “the legislative history behind § 2510(2) reflects Congress’s intent that [the Katz inquiry] serve as a guide to define communications that are uttered under circumstances justifying an expectation of privacy, ” that is, whether the communications were made by a person (1) who has a subjective expectation of privacy, and (2) whose expectation was objectively reasonable. United States v. McIntyre, 582 F.2d 1221, 1223 (9th Cir. 1978) (citations omitted). See United States v. Chavez, 416 U.S. 562, 575 (1974) (“suppression is not mandated for every violation of Title III, but only if ‘disclosure’ of the contents of intercepted communications, or derivative evidence, would be in violation of Title III”); United States v. Duran, 189 F.3d 1071, 1084 (9th Cir. 1999) (“Suppression is required: (i) if the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval.”) (citing 18 U.S.C. § 2518(10)(a)).

         The district court in the exercise of its discretion may choose to hear live testimony at a suppression hearing rather than rely on the written materials submitted by the parties. See United States v. Batiste, 868 F.2d 1089, 1091 (9th Cir. 1989) (district court properly exercised discretion to hold an evidentiary hearing on probable cause to arrest even though evidentiary hearing was not required where the defendant failed to dispute any material fact in the government’s proffer). If affidavits show as a matter of law that defendant is or is not entitled to relief, no evidentiary hearing is required. United States v. Irwin, 612 F.2d 1182, 1187 (9th Cir. 1980).


         A. Standing

         As an initial matter, the government contends that defendants lack standing to challenge all the stationary recordings under either the Fourth Amendment or under Title III, which only allows an “aggrieved person” to move to suppress wiretap evidence. Opp. Mot. Suppr. Recordings (doc. no. 86) at 5 (citing Rakas v. Illinois, 439 U.S. 128 (1978) and 18 U.S.C. § 2518(10(a)). See 18 U.S.C. § 2510(11) (an “aggrieved person” means a person “who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed.”). Defendants have submitted declarations by Casorso and Sanchez, in which they assert that they recognize their voices on specific recordings. The government has also identified 16 recordings of Victor Marr, Sanchez and/or Casorso. Wynar Decl. (doc. no. 86-1) ¶ 19; Sambat Decl. (doc. no. 128-1) ¶ 2 and Ex. A. Having identified specific recordings of their conversations in the record, defendants Victor Marr, Casorso and Sanchez have demonstrated standing under the Fourth Amendment and the wiretap statute to challenge those recordings.

         However, with respect to Michael Marr, defendants do not dispute the government’s representation that Michael Marr was never recorded, but argue that he was identified as a subject of the investigation. Defendants cite United States v. Oliva, 705 F.3d 390, 395 (9th Cir. 2012), where the court held that the defendant was one of the individuals “against whom the interception was directed, ” even though his voice was not verified to be on any of the recordings, where the affidavits in support of the surveillance orders included investigators’ statements certifying their beliefs that he was using the individual cellular phones at issue, showing that the defendant’s conversations were the target of the surveillance. Defendants rely on Oliva to support their argument that an “aggrieved person” with standing under the wiretap statute is one whose conversations were the target of the surveillance. Reply Mot. Suppr. Recordings (doc. no. 104) at 2. Although the government did not address Michael Marr’s standing argument in its surreply, the court determines that Oliva does not expressly recognize a defendant’s standing to bring a motion to suppress where he was not actually recorded or was not named in a wiretap application. Unlike Oliva, Michael Marr was not named in a wiretap application, since the government did not seek a wiretap order.

         Defendants also cite an unpublished opinion, United States v. Luis, 537 Fed.Appx. 752, 753 (9th Cir. 2013), which does not support their standing argument for Michael Marr. There, the defendant moved to suppress recorded conversations with an informant that were recorded with the informant’s consent without judicial authorization and by the government’s use of wiretaps. The court held that all of the defendant’s conversations were properly intercepted without judicial authorization pursuant to the informant’s consent. With respect to the wiretaps, the court in Luis held that the defendant lacked standing to challenge the interceptions because he was not named in any of the applications and none of his phone calls were intercepted pursuant to a Title III authorization. The court in Luis cited United States v. Gonzalez, Inc., 412 F.3d 1102, 1116 (2005), amended by 437 F.3d 854 (9th Cir. 2006), where the court recognized that “[t]he Supreme Court has interpreted these provisions as limiting standing to challenge wiretaps to persons whose Fourth Amendment rights were violated by the interception, ” and held that the defendants had standing to challenge all conversations intercepted by a wiretap on their business premises, not only their own intercepted conversations, where the defendants owned and leased the building to their family-run business. In Alderman v. United States, 394 U.S. 165, 171-72 (1969), the Supreme Court rejected an expansive view of Fourth Amendment standing urged by the defendants there who argued that “if evidence is inadmissible against one defendant or conspirator, because tainted by electronic surveillance illegal as to him, it is also inadmissible against his codefendant or coconspirator.” The Supreme Court recognized that “[t]he established principle is that suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. Coconspirators and codefendants have been accorded no special standing.” Id.

         Notwithstanding the court’s statement at the hearing, now that the court has had the opportunity to read the cases cited by defendant, in the absence of authority broadly recognizing that a defendant who was under investigation, but was neither intercepted nor named in a wiretap application, qualifies as an “aggrieved person” under the wiretap statute, the court finds that Michael Marr has not demonstrated that he has standing to challenge the warrantless recordings. Defendants cite no authority broadly construing “a person against whom the interception was directed” to include someone who was under surveillance but had no communications intercepted, was not an owner of the premises where the warrantless interceptions were made, and was not named in a wiretap application. The court further notes that the record indicates that the government agents were informed that Michael Marr never personally attended the rounds but had people representing him; thus he was not even an intended target of the interception. Wynar Decl., Ex. C at 4-5 (under seal). The Ninth Circuit has held that standing under the wiretap statute is not broader than Fourth Amendment standing. “Both the language of the statute and its legislative history make it clear that it does not broaden the rule of standing provided for in [former] Rule 41(e), F.R.Crim.P., relating to Fourth Amendment motions to suppress.” United States v. King, 478 F.2d 494, 506 (9th Cir. 1973) (citing 18 U.S.C. § 2510(11); S. Rep. No. 1097, 90th Cong. 2d Sess., quoted in 1968 U.S. Code Cong. & Admin. News at 2179). The court in King concluded that “a defendant may move to suppress the fruits of a wire-tap only if his privacy was actually invaded; that is, if he was a participant in an intercepted conversation, or if such conversation occurred on his premises.” Id.

         Under the weight of authority discussed here, the Fourth Amendment standing of defendants Victor Marr, Casorso and Sanchez is limited to challenging the interception of conversations in which they participated, and not all the warrantless recordings made in the course of the investigation. Michael Marr has not demonstrated standing to move for suppression of any of the warrantless recordings.

         B. Expectation of Privacy

         Defendants contend that they had a reasonable expectation of privacy in their communications outside the courthouses, citing cases recognizing a privacy right in communications made in a public place. None of the cases are directly on point, to hold that one has a ...

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