United States District Court, N.D. California
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 ...