SAN FRANCISCO – Defense lawyers have lost out on their bid to suppress wide swaths of evidence federal agents gained after planting recording devices outside the San Mateo County courthouse in 2009 and 2010.
U.S. District Judge Charles Breyer of the Northern District of California last year barred federal prosecutors from introducing more than 200 hours of recordings captured without a warrant as part of an investigation into bid-rigging at real estate auctions held outside the Redwood City building. But in a 13-page decision issued Tuesday, Breyer found defense lawyers failed to show the recordings netted any evidence investigators couldn’t have gotten by legal means. “That Agent X unlawfully obtained evidence on Date Y regarding Property Z does not put all evidence lawfully obtained by Agent X, on Date Y, or regarding Property Z off-limits for all time,” Breyer wrote. “It puts the offending evidence off-limits, along with other evidence discovered as a proximate result of the violation, but that’s it.”
Breyer pointed out in the order that federal investigators were using other lawful means to gather evidence during the wide-sweeping investigation, including confidential informants, body microphones, and video and photo surveillance. Breyer also found that cooperators for whom short snippets of the recordings had been played weren’t tainted. Breyer concluded that the cooperators either agreed to cooperate prior to hearing the recordings or had plenty of other reasons to do so.
“That an underlying violation contributed in some way to the discovery of challenged evidence is not enough,” Breyer wrote. “To the contrary, it must be that, but for the violation, the government would not have obtained the evidence at all.”
Jeffrey Bornstein of Rosen Bien Galvan & Grunfeld, one of the defense lawyers in the case, said Wednesday that nothing in Breyer’s latest decision “diminishes in any way the government’s illegal conduct in this case.”
Matthew Jacobs of Vinson & Elkins, another of the defense lawyers, concurred. “The court has already determined that the Department of Justice and FBI acted illegally in undertaking this secret wiretapping plan,” he said. “Nothing about the court’s decision changes that ruling.”