United States v. Florida

          PRETRIAL ORDER NO. 2 RE: DOC. NO. 141

          PHYLLIS J. HAMILTON UNITED STATES DISTRICT JUDGE

         Before the court is defendants’ motion to suppress warrantless audio recordings (doc. no. 141). 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 Alvin Florida, Jr. (“Al Florida”), Robert Rasheed, John Lee Berry, Refugio Diaz, and Stephan Alexander Florida (“Stephan Florida”) are charged in Count One with participating in a conspiracy to rig bids to obtain properties offered at Alameda County public foreclosure auctions from May 2008 to December 2010, and in Counts Two through Nine with mail fraud. Defendants challenge the warrantless use of audio recording devices to capture private conversations at or near the public entrance to the Alameda County courthouse, on the ground that they had a reasonable expectation of privacy in their communications. 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.

         II. LEGAL STANDARD

         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).

         III. DISCUSSION

         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. 154) at 4-5 (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 Al Florida, Rasheed, Berry and Stephan Florida asserting an expectation of privacy in their conversations on the steps of the Alameda County courthouse and at the nearby bus stop, with Al Florida and Berry stating that they recognized their voices on some of the recordings. Doc. nos. 167, 168, 171, 180. FBI Special Agent Bond clarified that at least one of the stationary recordings involved a conversation between Al Florida and an undercover agent. Bond Decl. (doc. no. 181-1) ¶ 8.

         The government has identified Al Florida, Rasheed and Berry on stationary recordings captured by recording devices at two locations: (1) a vehicle parked in front of the courthouse steps of the Alameda County Courthouse at 1225 Fallon Street, Oakland, and (2) a bus stop near the courthouse on the corner of Fallon Street and 12th Street. Wynar Decl. (doc. no. 154-1) ¶¶ 16-24; Kumar Decl. (doc. no. 181-3), Ex. A. Having identified specific recordings of their conversations in the record, defendants Al Florida, Rasheed and Berry have demonstrated standing under the Fourth Amendment and the wiretap statute to challenge those recordings.

         However, with respect to Stephan Florida and Diaz, defendants do not dispute the government’s representation that these defendants’ conversations were not recorded with the stationary devices, but argue generally that they were identified as a subject of the investigation. 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. See United States v. Oliva, 705 F.3d 390, 395 (9th Cir. 2012) (holding 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); United States v. King, 478 F.2d 494, 506 (9th Cir. 1973) (“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.

         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. The Ninth Circuit has held that standing under the wiretap statute is not broader than Fourth Amendment standing. See United States v. Gonzalez, Inc., 412 F.3d 1102, 1116 (2005) (“[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”), amended by 437 F.3d 854 (9th Cir. 2006). “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.” King, 478 F.2d at 506 (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). 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 Diaz and Stephan Florida have not demonstrated that they have standing to challenge the warrantless audio recordings.

         Under the weight of authority discussed here, the Fourth Amendment standing of defendants Al Florida, Rasheed and Berry 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. Stephan Florida and Diaz ...