New and Improved “Get Smart” Federal Government Surveillance

In the 1960’s comedy television series “Get Smart”, Agent 13 was a Government agent whose job was to perform surveillance upon an evil international organization known as “KAOS.”  To spy on on  “KAOS”, Agent 13 would hide inside uncomfortable places, such as a cigarette machine, mailbox, locker, washing machine, trashcan, toilet, tree, or fire hydrant.

Get Smart’s Agent 13 disguises himself as potted plant.

Nowadays with advances in technology Government agents don’t have to hide themselves in unsuspecting places to perform surveillance.   An example of the Government’s current surveillance tactics can be seen in a recent case from the federal district court in San Francisco.

In U.S.A. v. Giraudo, five Defendants were accused of conspiring to restrain competition by rigging bids at public real estate auctions.

To understand this case, you need to know that when a person or business defaults on a mortgage, the property in question may be sold at a public auction.  The proceeds from the auction are used to pay off the bank that holds the mortgage, with the remaining proceeds, if any, paid to the person or business that defaulted on the loan.

However, in this case, the Government alleged that before the auctions, the five Defedants would pick the winning bidder for the property amongst themselves, and then the winning bidder would pay the losing bidders off for keeping their bids low.  This practice is illegal because it lowers the sale price of the property, which essentially steals money from the bank holding the mortgage, as well as the person or business being foreclosed upon.

During the Government’s investigation, FBI agents planted listening devices outside the entrance of a county courthouse where the auctions took place.    The FBI did not get a warrant (permission) from a judge to plant the listening devices – they just did it on their own.

The listening devices were hidden in a metal sprinkler box, a planter, and an automobile.  The FBI turned these devices on at least 31 times and captured over 200 hours of conversations.  The devices were so sensitive that they were able to capture not only the voices of people standing in front of the courthouse talking on their cellphones, but also the voices of the persons on the other side of the line.  The listening devices did in fact capture incriminating conversations amongst the Defendants, which supported the Government’s case.

The San Mateo County Courthouse in Redwood City, California

The Defendants’ attorneys filed motions to suppress the recordings, claiming that the FBI violated the Fourth Amendment of the United States Constitution when it failed to get a warrant before it eavesdropped on their conversations.

The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The United States Supreme Court has held that the Fourth Amendment not only protects places, but also a person’s communications.  However, the Fourth Amendment does not protect every communication a person makes.  In the San Francisco case, Federal District Court Judge Charles Breyer, whose brother is Supreme Court Judge Stephen Breyer, noted that the Fourth Amendment would protect the conversations that took place in front of the courthouse only if:

  1. The defendants had a “subjective expectation of privacy” in their conversations in front of the courthouse.In other words, the defendants had to have thought that their conversations were private.
  2. The defendants’ expectation that their conversations were private was “objectively reasonable.” In other words, the defendants’ beliefs that their conversations were private had to have been reasonable.

The Government’s lawyers argued that the FBI did not need to get a warrant from a judge because the recorded conversations took place in front of the courthouse – which is a public place.  Therefore, the Government argued that the defendants did not have a reasonable expectation of privacy and the Fourth Amendment does not apply.

The Defendants’ attorneys disagreed.  They argued that people often have a reasonable expectation of privacy in public places.   For example, people in public places often move off the side away from other people to talk in private, or they may lower their voices so other people won’t hear them.

After reviewing the facts of the case, Judge Breyer analyzed whether the Defendants had a “subjective expectation of privacy” and if so, whether or not that expectation was “objectively reasonable.”

Senior United States District Court Judge Charles R. Breyer

First,  Judge Breyer noted that the video and audio recordings showed that one of the defendants would keep a close eye on the people near him, speak in a lower voice or stop talking when strangers approached, and generally do everything possible to make sure nobody else heard his conversations. Therefore, Judge Breyer felt that the defendants had a subjective expectation of privacy in their conversations. In other words, the defendants thought what they were saying was private.

Second, to determine whether or not the defendants’ subjective expectations of privacy were objectively reasonable,  Judge Breyer considered a variety of factors, including: the location of the conversations; whether the conversations could be overheard with the naked ear; whether the conversations took place out in the open; whether the conversations involved business or private matters; the proximity of other individuals to overhear the conversations; the affirmative actions taken by the speakers to shield their privacy; the need for technological enhancements to hear the communications.  After considering all these factors,  Judge Breyer found that it was reasonable for the Defendants to have believed that their conversations were indeed private.

Having determined that the Defendants had a subjective expectation of privacy in their conversations in front of the courthouse and that that expectation was objectively reasonable,  Judge Breyer ruled that the FBI had violated the Fourth Amendment’s prohibition against unreasonable searches when it recorded the Defendants’ conversations without a warrant.  Therefore,  Judge Breyer suppressed the recordings.  The effect of Judge Breyer’s order was that the Government could not use the recordings as evidence at the Defendants’ trial.

However, it appears that even without these recordings, the Government had enough evidence to convict the Defendants, and all 5 Defendants ended up pleading guilty.  Their sentences ranged from probation, to 15 months of incarceration.

If you would like to learn more about what happens when police use investigative methods that violate the U.S. Constitution, click here: http://www.thehardylawfirm.com/unconstitutional-police-conduct-tampa-florida/

 

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Florida Double Jeopardy

Double Jeopardy and Hollywood

 

In 1999, a Hollywood movie called “Double Jeopardy” came out.

The film begins with a woman waking up at sea on her family’s yacht in a storm. When the Coast Guard arrives, she has blood all over her, a knife in her hand, and her husband, who had been the only person onboard the yacht with her, is missing. The husband’s body is never found. The wife is eventually arrested, tried, and convicted for her husband’s murder.

While the wife is serving time in prison, she begins to suspect that her husband faked his own murder and framed her in a scheme to get rich. Another inmate tells the wife that because she has already been convicted of her husband’s murder, that under the 5th Amendment’s double jeopardy clause, she can now kill her husband for real and not face criminal prosecution. Though it’s never a good idea to take legal advice from a prison inmate, the wife believes she can now legally kill her husband. When the wife gets paroled, she starts looking for her husband. When she finds him alive and well, she points a gun at him and says: “I learned a few things in prison.  I could shoot you in the middle of mardi gras and they can’t touch me.

According to the Merriam-Webster Dictionary, Double Jeopardy is defined as the act of causing a person to be put on trial two times for the same crime.

The protection against double jeopardy can be found in the Fifth Amendment to the United States Constitution, which states that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” The Florida Constitution also has a double jeopardy protection as part of Florida’s Declaration of Rights, which states, “No person shall…be twice put in jeopardy for the same offense.”

In 1957, in a case called Green v. United States, the United States Supreme Court explained the rationale for the double jeopardy clause, stating that:

The constitutional prohibition against “double jeopardy” was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense…. The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

The double jeopardy protection does not apply until jeopardy has “attached.” With a jury trial, jeopardy attaches when a jury has been selected and sworn (taken an oath). With a bench trial (a trial in which a judge decides the case rather than a jury), jeopardy attaches when the first witness has been sworn.

It’s important to remember that there are times when the government can try a defendant more than once for the same offense. For example, if a defendant goes to trial, is convicted, but then gets the verdict overturned on appeal, the double jeopardy clause normally does not prevent the government from retrying the defendant. That’s what happened in the famous case of Miranda v. Arizona. In that case, Mr. Miranda was convicted for the kidnapping and rape of an eighteen-year-old woman, but because police had not informed Mr. Miranda of his rights to obtain an attorney and remain silent during his custodial interrogation, the United States Supreme Court overturned his conviction. Because the double jeopardy clause did not prevent the State of Arizona from retrying Mr. Miranda, the prosecutor filed the charges again. At the second trial, the prosecutor was not allowed to present evidence from Mr. Miranda’s confession. However, the victim was able to testify against Mr. Miranda, the jury found him guilty, and the judge sentenced him to prison.

With respect to the “Double Jeopardy” movie, the wife’s problem is this. When a grand jury or prosecutor accuses a person of murder, they charge that the murder took place at a particular location and time, and double jeopardy applies only to the murder that took place at that particular location and time. So, if the wife in “Double Jeopardy” were to kill her husband at a different location and time, then double jeopardy would not apply. Therefore, the inmate that told the wife that if she found her husband alive, that she could kill him with impunity, was wrong.

As far as what happened to the husband and wife in “Double Jeopardy”, the wife does eventually shoot and kill the husband in a shoot out. However, it would have been the law of self-defense, rather than the law of double jeopardy, that would have determined whether or not she would have been convicted of murder.

To learn more about the law of self defense in Florida as well as the Florida Stand Your Ground Law, click here.  http://www.thehardylawfirm.com/standing-your-ground-in-florida-tampa-florida/

 

 

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