Anne Marie Gennusa v. Brian Canova, 748 F.3d 1103

In June 2009 Detective Thomas Marmo interviewed Joel Studivant at the St. Johns County Sheriff’s Office; Studivant’s attorney Anne Marie Gennusa was present and they discussed privileged matters in a 10x10 interview room.
Unbeknownst to them, sheriff’s personnel (including Marmo and Sergeant Brian Canova) were actively monitoring and recording audio (and video) from a concealed device in the room without notice or a warrant.
Studivant began a sworn written statement, then changed his mind after conferring with counsel; Gennusa covered the statement when officers demanded it. Marmo re-entered and forcibly grabbed the paper, then arrested Studivant.
Studivant and Gennusa sued Marmo and Canova in their individual capacities under 42 U.S.C. § 1983 (Fourth Amendment) and (for the recordings) under the Federal Wiretap Act.
The district court granted summary judgment for Studivant and Gennusa, holding the warrantless interception violated the Fourth Amendment and the Wiretap Act and that the seizure of the statement violated the Fourth Amendment; the officers were denied qualified immunity.
On appeal the Eleventh Circuit affirmed: it held the surreptitious recording of privileged attorney-client communications was a Fourth Amendment search and clearly established unlawful conduct, and the officers had not preserved (or proved) an exigent-circumstances justification for seizing the statement.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether warrantless electronic monitoring/recording of attorney-client conversation in a noncustodial interview room violated the Fourth Amendment	Recording of privileged attorney-client communications violated privacy and required a warrant	No reasonable expectation of privacy in that setting; monitoring lawful	Held: Recording was a Fourth Amendment search; the attorney-client privilege supplies an objectively reasonable expectation of privacy; warrant required
Whether officers were entitled to qualified immunity for the warrantless recording	Marmo/Canova violated clearly established rights; qualified immunity inapplicable	Officers reasonably (but mistakenly) believed conduct lawful; no clear precedent on these precise facts	Held: Qualified immunity denied — general Supreme Court precedent made illegality obvious to a reasonable officer in 2009
Whether seizure of Studivant’s written statement without a warrant was lawful (exigent circumstances)	Seizure of paper from under counsel’s hand was unreasonable absent a warrant or valid exception	Seizure justified by exigent circumstances (risk of destruction/tampering); minimal/no force used	Held: Officers failed to preserve or support an exigent-circumstances defense; seizure unreasonable and qualified immunity not shown

Berger v. New York, 388 U.S. 41 (invalidating warrantless electronic interception scheme) (establishes electronic interception as a Fourth Amendment search)
Katz v. United States, 389 U.S. 347 (warrantless wiretap of public phone booth violated Fourth Amendment) (reasonable expectation of privacy principle)
United States v. United States Dist. Court for the E. Dist. of Mich., 407 U.S. 297 (warrantless domestic security wiretap unlawful) (warrant requirement in sensitive contexts)
Mitchell v. Forsyth, 472 U.S. 511 (granting qualified immunity in limited circumstances but reiterating warrant requirement for wiretaps) (clarifies warrant requirement for ordinary criminal cases)
Upjohn Co. v. United States, 449 U.S. 383 (attorney-client privilege is a well-established privilege) (privilege as source of objectively reasonable expectation of privacy)
Illinois v. McArthur, 531 U.S. 326 (warrant required for most seizures of property) (warrant rule and limited exceptions)
Missouri v. McNeely, 569 U.S. 141 (assessing exigent-circumstances analysis under totality of circumstances) (standard for exigent-circumstances exception)
Hudson v. Palmer, 468 U.S. 517 (privacy expectations can be diminished in custodial settings) (context for diminished expectations)