Can Police Record And Actively Monitor The Conversation Of A Non-Custodial Suspect With His Attorney In The County Sheriff’s Office Without Notice Or A Search Warrant?
This issue was raised by both the attorney and her client in a 42 U.S.C., Section 1983 action, Gennusa and Studivant v. Canova and Marmo. The plaintiffs alleged a violation of both the attorney and her client’s civil rights in that the action of the police violated both the Fourth Amendment and the Federal Wiretap Act, 18 U.S.C., Section 2510.
In addition to the officers surreptitious electronic eavesdropping of the attorney-client conversations, the main detective noticed that the client had written out a statement and given it to his attorney. The detective went into the interview room and demanded the attorney hand over the client’s written statement. The attorney refused to tender the written statement causing the main detective to forcibly grab the statement from the lawyer’s hand.
The Eleventh Circuit Court of Appeals found that “the warrantless monitoring and recording of the attorney-client communications violated the plaintiff’s subjective expectation of privacy that society recognizes as reasonable.” (The necessity of privacy during an attorney-client privileged conversation.) Furthermore, the court found that the parties’ conversations were protected under the Fourth Amendment and “that the use of electronic devices to capture it [is] a ‘search within the meaning of the Amendment.’”
The Eleventh Circuit Court of Appeals summed up its ruling as follows: “The greatest dangers to liberty lurk in insidious encroachment by men of zell, well-meaning but without understanding. Olmstead v. United States, 277 U.S. 438, 479 (1928) (Brandeis, J., descenting). The monitoring and recording of the privileged attorney-client conversations between Mr. Studivant and Ms. Gennusa, without notice and without a warrant, violated their clearly established Fourth Amendment rights. So too, on this record, did the warrantless seizure of Mr. Studivant’s written statement from Ms. Gennusa.”