Gennusa v. Canova

Citation748 F.3d 1103
Decision Date08 April 2014
Docket NumberNo. 12–13871.,12–13871.
PartiesAnne Marie GENNUSA, Joel Studivant, Plaintiffs–Appellees Cross Appellants, v. Brian CANOVA, individually, Thomas Marmo, individually, Defendants–Appellants Cross Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

OPINION TEXT STARTS HERE

Bryan E. Demaggio, Matthew R. Kachergus, William J. Sheppard, Elizabeth Louise White, Sheppard White & Kachergus, PA, Jacksonville, FL, for PlaintiffsAppellees.

John W. Jolly, Jr., Jolly & Peterson, PA, Tallahassee, FL, for DefendantsAppellants.

Appeals from the United States District Court for the Middle District of Florida. D.C. Docket No. 3:09–cv–01208–TJC–MCR.

Before JORDAN, COX, and DUBINA, Circuit Judges.

JORDAN, Circuit Judge:

While investigating an alleged misdemeanor violation of a domestic violence injunction, Detective Thomas Marmo and Sergeant Brian Canova monitored, intercepted, and listened to privileged conversations between their suspect, Joel Studivant, and his attorney, Anne Marie Gennusa, who were in an interview room at the St. Johns County Sheriff's Office. They did so without any notice to Mr. Studivant and Ms. Gennusa, and without a warrant. Det. Marmo also seized from Ms. Gennusa, on Sgt. Canova's order, a statement written by Mr. Studivant. This too was done without a warrant.

In a thorough and well-reasoned summary judgment order, see Gennusa v. Shoar, 879 F.Supp.2d 1337 (M.D.Fla.2012), the district court ruled that the surreptitious electronic eavesdropping violated the Fourth Amendment and the Federal Wiretap Act, 18 U.S.C. § 2510 et seq., and that the seizure of Mr. Studivant's written statement contravened the Fourth Amendment. The district court further concluded that Det. Marmo and Sgt. Canova were not protected by qualified immunity. Det. Marmo and Sgt. Canova appeal, asserting that they are entitled to qualified immunity on the Fourth Amendment claims.1

After review of the record, and with the benefit of oral argument, we affirm. First, it has long been clearly established that the warrantless interception of private conversations—like the privileged ones here—offends the Fourth Amendment. Second, Det. Marmo and Sgt. Canova did not properly assert in the district court that the seizure of Mr. Studivant's statement was permitted by the exigent circumstances exception to the Fourth Amendment's general warrant requirement.

I

We conduct plenary review of the district court's grant of summary judgment, viewing the facts in the light most favorable to the non-moving parties. Summary judgment is appropriate if there are no genuine issues of material fact and a party is entitled to judgment as a matter of law. SeeFed.R.Civ.P. 56(a); Bradley v. Franklin Collection Serv., Inc., 739 F.3d 606, 608 (11th Cir.2014). As the district court noted, see Gennusa, 879 F.Supp.2d at 1342–43, the relevant facts, which we set out below, are undisputed.

In the summer of 2009, Det. Marmo was investigating Mr. Studivant's possible misdemeanor violation of a domestic violence injunction. On June 8, 2009, in the course of that investigation, Det. Marmo conducted a non-custodial interview of Mr. Studivant at the St. Johns County Sheriff's Office. Ms. Gennusa was present during the interview as Mr. Studivant's attorney. The interview was conducted in an interview room at the Sheriff's Office that was 10 feet by 10 feet, contained a table, and had a small window on the door.

Unbeknownst to Mr. Studivant or Ms. Gennusa, all that took place in the interview room—including their privileged attorney-client conversations—was being recorded and actively monitored by members of the Sheriff's Office (including Det. Marmo and Sgt. Canova) through a concealed camera in the room. The camera was not obviously recognizable, no signs warned visitors of the possibility of electronic surveillance, and Mr. Studivant and Ms. Gennusa were not told that they were being recorded or monitored. See id. at 1342 n. 1.

When the interview began, Mr. Studivant agreed to prepare a sworn written statement. As Mr. Studivant began writing his statement, Det. Marmo left the interview room and closed the door. While they were alone in the room, Mr. Studivant and Ms. Gennusa discussed matters related to the investigation.

Ms. Gennusa then left the interview room and met with Det. Marmo in his office. When she returned to the interview room, Ms. Gennusa closed the door and informed Mr. Studivant that Det. Marmo was going to arrest him. Following a discussion with Ms. Gennusa, Mr. Studivant decided he no longer wanted to give Det. Marmo a written statement.

Det. Marmo came back to the interview room and demanded Mr. Studivant's written statement. After a somewhat heated discussion, Mr. Studivant and Ms. Gennusa refused to turn over the statement. Det. Marmo left the room again and went to see his supervisor, Sgt. Canova. During their conversation, Det. Marmo and Sgt. Canova actively monitored Mr. Studivant and Ms. Gennusa in the interview room, and saw Ms. Gennusa place the written statement on the table. Sgt. Canova instructed Det. Marmo to return to the interview room and retrieve the statement.

As he came back into the room, Det. Marmo forcibly grabbed the statement from underneath Ms. Gennusa's hand. He then arrested Mr. Studivant for violation of the domestic violence injunction, and later attached the written statement to his arrest report. Mr. Studivant ultimately entered into a deferred prosecution agreement, and the criminal charge against him was dismissed.

Mr. Studivant and Ms. Gennusa filed suit in federal district court against Det. Marmo and Sgt. Canova in their individual capacities. They asserted claims under 42 U.S.C. § 1983 for violations of the Fourth Amendment (based on the warrantless recording of their privileged conversations and the seizure of the written statement), and under 18 U.S.C. § 2520(a) for violations of the Federal Wiretap Act (based on the warrantless recording). 2

II

“The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments, and protects all but the plainly incompetent or those who knowingly violate the law.” Stanton v. Sims, ––– U.S. ––––, 134 S.Ct. 3, 4–5, 187 L.Ed.2d 341 (2013) (internal citations and quotation marks omitted).

Because it is undisputed that Det. Marmo and Sgt. Canova were acting within the scope of their discretionary authority, Mr. Studivant and Ms. Gennusa bear the burden of establishing that qualified immunity is not appropriate. See Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.2002). To satisfy this burden, they must show two things—first, that Det. Marmo and Sgt. Canova violated the Fourth Amendment, and second, that at the time of the incidents in question it was clearly established that the challenged conduct was unconstitutional. See, e.g., McCullough v. Antolini, 559 F.3d 1201, 1205 (11th Cir.2009).

III

We begin with the warrantless monitoring and recording of the attorney-client conversations of Mr. Studivant and Ms. Gennusa. The district court held that Det. Marmo and Sgt. Canova violated the Fourth Amendment because Mr. Studivant and Ms. Gennusa had a “subjective expectation[ ] that their conversations were private” and because this expectation, given the confidential attorney-client nature of the conversations, was “objectively reasonable.” See Gennusa, 879 F.Supp.2d at 1346–49. The district court also denied qualified immunity to Det. Marmo and Sgt. Canova. Acknowledging that there was “no case precisely on point,” the district court explained that since the late 1960s “it has been clearly established that the Fourth Amendment prohibits the police from electronically intercepting communications without a warrant when the speakers have a reasonable expectation of privacy.” See id. at 1349–50.

On appeal, Det. Marmo and Sgt. Canova challenge the district court's qualified immunity ruling on two grounds. They argue that neither Mr. Studivant nor Ms. Gennusa had a reasonable expectation that their attorney-client conversations in the interview room would be private, and that, as a result, there was no constitutional violation. See Br. for Appellants at 15–16. They also contend that it was not obvious to a reasonable officer in June of 2009 that monitoring and recording those conversations without a warrant violated the Fourth Amendment. See id. at 16–18. As we explain, neither argument carries the day.

A

The Fourth Amendment, as applied to the states by way of the Fourteenth Amendment, see Mapp v. Ohio, 367 U.S. 643, 646–47, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), protects [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. For our purposes, a Fourth Amendment search occurs “when the government violates a subjective expectation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001).

Almost 50 years ago, the Supreme Court held that a “ ‘conversation [is] within the Fourth Amendment's protections,” and that “the use of electronic devices to capture it [is] a ‘search’ within the meaning of the Amendment.” See Berger v. New York, 388 U.S. 41, 51, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967) (invalidating a New York statute that authorized the electronic interception of private conversations by the police (through recording devices installed in various offices) pursuant to a court order, on the ground that the procedures for obtaining the order were insufficient to comply with the Warrants Clause of the Fourth Amendment). In a number of cases following Berger, the Supreme Court similarly ruled that the warrantless electronic interception of private...

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