On April 8, 2014, the Eleventh Circuit Court of Appeals decided the Gennusa and Studivant v. Canova et al. [i], which is instructive regarding the Fourth Amendment implications of recording attorney-client conversations. The relevant facts of Gennusa, taken directly from the case, are as follows:
In the summer of 2009, Det. Marmo was investigating Mr. Studivant’s possible misdemeanor violation of a domestic violence injunction. On June 8, 2009, in the course of that investigation, Det. Marmo conducted a non-custodial interview of Mr. Studivant at the St. Johns County Sheriff’s Office. Ms. Gennusa was present during the interview as Mr. Studivant’s attorney. The interview was conducted in an interview room at the Sheriff’s Office that was 10 feet by 10 feet, contained a table, and had a small window on the door.
Unbeknownst to Mr. Studivant or Ms. Gennusa, all that took place in the interview room – including their privileged attorney-client conversations – was being recorded and actively monitored by members of the Sheriff’s Office (including Det. Marmo and Sgt. Canova) through a concealed camera in the room. The camera was not obviously recognizable, no signs warned visitors of the possibility of electronic surveillance, and Mr. Studivant and Ms. Gennusa were not told that they were being recorded or monitored.
When the interview began, Mr. Studivant agreed to prepare a sworn written statement. As Mr. Studivant began writing his statement, Det. Marmo left the interview room and closed the door. While they were alone in the room, Mr. Studivant and Ms. Gennusa discussed matters related to the investigation.
Ms. Gennusa then left the interview room and met with Det. Marmo in his office. When she returned to the interview room, Ms. Gennusa closed the door and informed Mr. Studivant that Det. Marmo was going to arrest him. Following a discussion with Ms. Gennusa, Mr. Studivant decided he no longer wanted to give Det. Marmo a written statement.
Det. Marmo came back to the interview room and demanded Mr. Studivant’s written statement. After a somewhat heated discussion, Mr. Studivant and Ms. Gennusa refused to turn over the statement. Det. Marmo left the room again and went to see his supervisor, Sgt. Canova. During their conversation, Det. Marmo and Sgt. Canova actively monitored Mr. Studivant and Ms. Gennusa in the interview room, and saw Ms. Gennusa place the written statement on the table. Sgt. Canova instructed Det. Marmo to return to the interview room and retrieve the statement.
As he came back into the room, Det. Marmo forcibly grabbed the statement from underneath Ms. Gennusa’s hand. He then arrested Mr. Studivant for violation of the domestic violence injunction, and later attached the written statement to his arrest report. Mr. Studivant ultimately entered into a deferred prosecution agreement, and the criminal charge against him was dismissed. [ii]
Studivant and Gennusa filed suit in federal district court against the officers and argued that the officers violated their Fourth Amendment rights by recording their privileged conversation in the interview room and by seizing the written statement from Ms. Gunnusa. The district court held that the officers did violate the Fourth Amendment when they recorded the attorney-client conversation and further, that the law was clearly established and, as such, the officers were not entitled to qualified immunity. Secondly, the district court held that the officer violated the Fourth Amendment when he seized the written statement and, as such, was not entitled to qualified immunity. The officers appealed the denial of qualified immunity to the Eleventh Circuit Court of Appeals.
The first issue the court had to resolve was whether Studivant and Gennusa possessed a reasonable expectation of privacy in the interview room where they had a conversation regarding the investigation at a time when Studivant was not under arrest.
The officers argued that Studivant and Gennusa did not have a reasonable expectation of privacy in the interview room and, as such, there was no Fourth Amendment violation. They also argue that, if the court does hold that they possessed a reasonable expectation of privacy, there was no clearly established law to put them on notice of this; therefore, they would still be entitled to qualified immunity.
As the outset, the court of appeals stated:
Almost 50 years ago, the Supreme Court held that a “‘conversation [is] within the Fourth Amendment’s protections,” and that “the use of electronic devices to capture it [is] a ‘search’ within the meaning of the Amendment.” See Berger v. New York, 388 U.S. 41, 51 (1967) (invalidating a New York statute that authorized the electronic interception of private conversations by the police (through recording devices installed in various offices) pursuant to a court order, on the ground that the procedures for obtaining the order were insufficient to comply with the Warrants Clause of the Fourth Amendment). In a number of cases following Berger, the Supreme Court similarly ruled that the warrantless electronic interception of private conversations by the government violates the Fourth Amendment. See Katz v. United States, 389 U.S. 347, 353-59 (1967) (warrantless interception of conversation conducted from public phone booth in case involving use of wires to make bets or wagers); United States v. U.S. Dist. Court for the E. Dist. of Mich., 407 U.S. 297, 318-21 (1972) (warrantless interception of calls in case involving domestic threat to national security – a plot to bomb the office of the Central Intelligence Agency); Mitchell v. Forsyth, 472 U.S. 511, 531-34 (1985) (warrantless wiretap of anti-war group which had made plans to blow up heating tunnels connecting office buildings in Washington, D.C.). Mitchell, while granting qualified immunity to the Attorney General because the warrantless wiretapping at issue there had been authorized prior to Katz, explained that Katz “held that no recognized exception to [the Fourth Amendment’s] warrant requirement could justify warrantless wiretapping in an ordinary criminal case.” Mitchell, 472 U.S. at 531. These cases stand for the now-unremarkable proposition that, because society recognizes as reasonable an expectation of privacy for confidential conversations between individuals, the government needs a warrant to intercept or record such conversations. [iii] [emphasis added]
Thus, the court emphasized that recording private conversations clearly implicates the Fourth Amendment. Additionally, the court balanced the government’s interest in monitoring the private conversations between and attorney and client who was not in custody against the government’s interest. The court noted that since Studivant was not in custody, the government could not point to any relevant law enforcement, security, or penological interest in monitoring and recording the conversation. Further, the court noted that communications between and attorney and a client regarding a criminal case are of the “oldest of the privileges for confidential communications known to the common law.” [iv]
This leaves the issue as to whether Studivant and Gennusa had a reasonable expectation of privacy in the interview room where they had the conversation when Studivant was not in custody. The officers cite several cases where various courts have held there was no reasonable expectation of privacy in interview rooms at police stations and jails; however, the court of appeals noted that these cases are distinguishable because those cases involved people had been arrested, were in police custody, or where there were indications to the people that they were in fact being monitored. [v] Specifically, the court stated:
The status of the persons being recorded matters because, as the Supreme Court has said on various occasions, “the expectations of privacy of an individual taken into police custody ‘necessarily [are] of a diminished scope.'” Maryland v. King, 133 S. Ct. 1958, 1978 (2013) (citation omitted). Unlike the individuals in Delibro, Johnson, and Deegan, Mr. Studivant was not under arrest at the time of his privileged conversations with Ms. Gennusa, and his interview with Det. Marmo was non-custodial. And, unlike certain of the individuals in those cases, who had some indication that they were being surveilled and monitored, Mr. Studivant and Ms. Gennusa had no idea that Det. Marmo, Sgt. Canova, and other members of the St. Johns Sheriff’s Office were eavesdropping on them. Indeed, as the district court put it, they were “given no indication of this fact.” See Gennusa, 879 F. Supp. 2d at 1341 & n.1. [vi]
As such, the court held that Studivant and Gennusa did have a reasonable expectation of privacy in the interview room; therefore, it was a violation of their Fourth Amendment rights to monitor and record their conversation without a warrant.
The court, having established that a Fourth Amendment violation did occur, next had to determine if the law was clearly established such that a reasonable law enforcement officer should have known his conduct was illegal. If the law was not clearly established, then the officers are still entitled to qualified immunity. The court noted that there does not have to be a case with identical facts to clearly establish the law. There can be a situation when the law may be known based upon “obvious clarity.”
The court then stated:
That the attorney-client conversations here took place inside an interview room at a sheriff’s office does not mean that Det. Marmo and Sgt. Canova lacked clear notice that their warrantless electronic surveillance was illegal. As the Supreme Court has explained, “[o]fficials can still be on notice that their conduct violates established law even in novel factual circumstances,” as long as the “state of the law [at the relevant time] gave [them] fair notice that their [actions] w[ere] unconstitutional,” Hope, 536 U.S. at 741, and that is the case here. Although locale can matter, see, e.g., McKinnon, 985 F.2d at 527-28 (holding that a suspect does not have a reasonable expectation of privacy in the back seat of a police car), it is not dispositive. We held more than 20 years ago that the “location of the conversations that [are] intercepted is not determinative; the proper inquiry is whether the government’s activities in electronically listening to and recording the conversations violated privacy upon which [the participants] justifiably relied.” United States v. Shields, 675 F.2d 1152, 1158 (11th Cir. 1982). Here Mr. Studivant had not been arrested, and his liberty had not been curtailed in any way. His status therefore did not result in a diminished expectation of privacy. [vii]
Based upon the above principals, the court held that the law was clearly established and the officers were not entitled to qualified immunity for the monitoring and recording the conversations.
The final issue we will examine is whether the officer violated the Fourth Amendment when he seized Studivant’s written statement that was on a table under the Gennusa’s hand in the interview room. The court noted that
[T]he Fourth Amendment protects the “right of the people to be secure in their “papers[ ] and effects[ ] against unreasonable searches and seizures.” U.S. Const. amend. IV. [viii]
On appeal, the officers argue that the statement was seized based upon the exigency of preventing the statement from later being destroyed, which is a recognized exception to the warrant requirement. However, the court noted that there was no indication that the statement was about to be destroyed and nothing prevented the officers, since the statement was in the custody of the attorney, from telling her to preserve the statement because they were going to seek a warrant to obtain it. Thus, the court held there was no sufficient exigency to justify the warrantless seizure of the statement. As such, the officers violated the Fourth Amendment by seizing the statement.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 12-13871 (11th Cir. Decided April 8, 2014)
[ii] Id. at 3-5
[iii] Id. at 8-9
[iv] Id. at 10 (quoting Upjohn Co. v. United States, 448 U.S. 383 (1981))
[v] Id. at 11-12 (See United States v. Delibro, No. 09-11995, 2009 WL 3059064, 347 Fed. App’x 474, 475 (11th Cir. Sept. 25, 2009) (arrestee and his mother did not have a reasonable expectation of privacy in an actively-monitored police interview room, as arrestee was “well aware” that police could be monitoring his conversations, and as a result there was no basis to suppress conversations between them that the police had recorded without a warrant); Johnson v. State, 730 So. 2d 368, 370 (Fla. Dist. Ct. App. 1999) (police did not violate the Fourth Amendment by recording, without a warrant, conversations between a husband, who had been arrested, and his wife in an interview room at a police station because no reasonable expectation of privacy existed and wife admitted that she did not know if they were being surveilled or recorded); Deegan v. Rudman, Civil Action No. 3:10-cv-00016, 2011 WL 251226, at *3-*4 (W.D. Va. Jan. 26, 2011) (arrestee did not have a reasonable expectation of privacy in an interrogation room at a police station, where video and audio monitoring was “routine,” and therefore police did not violate the Fourth Amendment by recording his side of a conversation with his attorney on an officer’s cell phone).
[vi] Id. at 13
[vii] Id. at 16-17
[viii] Id. at 18