In a July 28th post, I reported that United States District Judge Phyllis J. Hamilton ruled that the FBI did not conduct a warrantless search by placing electronic eavesdropping devices outside two courthouses in the San Francisco area to capture conversations of bidders at real estate foreclosure auctions.  See, Cartel Capers, FBI Bugging on Courthouse Steps (Not Very Nice) But Not a Warrantless Search). But, as noted in that post, the same issue was also before a second judge in another upcoming real estate foreclosure auction trial in the same district.  Ten days later US District Judge Charles R. Breyer (brother of Supreme Court Justice Stephen G. Breyer) found that, “The government has utterly failed to justify a warrantless electronic surveillance  program that recorded private conversations spoken in hushed tones by judges, attorneys and court staff.”  The full story by Bob Egelko of the SF Gate can be found here.

The difficulty for the government will now come in establishing that none of the evidence that they will seek to use at trial is the “fruit of the poisonous tree.”  It is simple for the government to agree not to use any of the recordings at trial (as they had already agreed to in the case before Judge Hamilton), but now the prosecution must establish that the evidence that they do seek to use at trial was derived independently from and is “untainted” by any information learned from the recordings. The judge scheduled a status conference for Aug. 10 regarding a taint hearing concerning the recordings.

Warrantless or not, and two judges disagreed on the issue, the bugging of the courthouse steps was clearly overkill and has created an enormous amount of extra work for the resource strained San Francisco office.  This reminds me of a saying of one of my former bosses at DOJ when staff (and/or myself) would plead to be authorized to bring a small case: “There are no small cases.”

More to follow.  Thanks for reading.