Why Did the FBI Bug an Oakland Courthouse?

By Christopher Coble, Esq. on May 16, 2016 | Last updated on March 21, 2019

Last week, the East Bay Express broke news that federal agents placed an array of audio and video surveillances devices in and around the Rene C. Davidson Courthouse in Alameda County, California. The extent of the surveillance was only revealed after evidence gleaned from recordings was used against a criminal defendant.

While it seems clear that the FBI did not have a warrant for the surveillance, what's less clear is how many people were recorded, how many conversations were taped, and whether any of this was legal.

You Wearing a Wire?

The alleged targets of the surveillance were landlords and property buyers who've been suspected or charged with rigging bids at foreclosure auctions. According to his attorneys, evidence from the surveillance was part of the case against Michael Marr, an East Bay landlord charged with conspiring to rig possibly hundreds of auctions.

So how did the feds get this info? According the Express, the Department of Justice conceded:

At the Rene C. Davidson Courthouse in Oakland, the FBI planted hidden microphones inside light fixtures on the courthouse's exterior steps to capture the conversations of people attending the foreclosure auctions. Cameras and microphones were installed in parked Alameda County vehicles next to the courthouse. The FBI even hid a microphone in the AC Transit bus stop on Fallon Street, and dropped a bugged backpack next to a statue inside the courthouse.

The surveillance allegedly took place from March 2010 to January 2011. But this wasn't the only courthouse the FBI had wired: they also bugged the Contra Costa County courthouse in Martinez, including "microphones in bushes, at a bus stop, on a pole, and inside parked and roving vehicles near the auction site."

The Law of Taping

The Fourth Amendment covers warrantless surveillance, as there are some exceptions to search warrant requirements. Those exceptions don't appear to apply in this case, and recording private conversations, even in public places normally requires a warrant. (Which is why you can have video surveillance cameras, but they may not record audio.)

The feds may have known these recordings were out of bounds -- in a letter to Mann's attorneys, the Justice Department said it would not use any of the unmanned recordings in its case against him, possibly acknowledging they would be inadmissible anyway. The DOJ also said it wouldn't use "audio material [recorded] without an agent or confidential source in possession of the device at the time of the recording." I'm sure the FBI doesn't need reminding that California is a two-party consent state, meaning it's illegal conversations without the consent of all parties.

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