Giraudo

CLARIFYING ORDER

While investigating Defendants, federal agents decided to bug a courthouse. They also decided that they didn’t need a warrant to, yes, bug a courthouse. There can be no doubt that these decisions flouted constitutional and statutory protections alike. But in this criminal case, questions remain about who may suppress what as a result.

I. BACKGROUND

A. Legal Backdrop

Two legal regimes are in play here: one constitutional, one statutory.

1. Fourth Amendment

The government conducts a search under the Fourth Amendment when an effort to obtain information either (1) “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) (citing Katz v. United States, 389 U.S. 347, 361 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (Harlan, J., concurring) (1967)), or (2) involves a “physical intrusion [into] a constitutionally protected area.” United States v. Jones, 565 U.S. 400 , 132 S.Ct. 945, 951 , 181 L.Ed.2d 911 (2012) (citation omitted). When the government does either without a warrant, it usually violates the Fourth Amendment. But see, e.g., Chambers v. Maroney, 399 U.S. 42,…