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Wiretaps at burial not considered invasion of privacy

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  1. Libel and Privacy

    NMU         FIFTH CIRCUIT         Privacy         Apr 2, 2001    

Wiretaps at burial not considered invasion of privacy

  • A couple who attended a grave site ceremony do not have an expectation of privacy in their conversation at a publicly accessible cemetery, a federal appeals court ruled.

Police wiretaps placed at a burial site to record conversations did not violate the privacy of the grandmother and father at the ceremony, the U.S. Court of Appeals in New Orleans (5th Cir.) ruled on March 28.

The court ruled that the two plaintiffs had no expectation of privacy in a publicly accessible cemetery. In 1996, Darlier Kee and Darin Routier, the grandmother and father respectively, attended a grave site memorial service for Damon and Devon Routier, two boys murdered in Rowlett, Texas.

As part of the official investigation of the murders, police placed an electronic surveillance wiretap in an urn near the graves in case the killer made a coffin-side confession. Police recorded both audio and video at the grave site.

Upon learning of the bugs, Kee and Routier sued the City of Rowlett for search and seizure violations and invasion of privacy. They also sought damages under the federal wiretap act, which prohibits intercepting oral communications without a warrant.

The federal district court granted summary judgement for the city and ruled that Kee and Routier had no expectation of privacy when they spoke at the funeral. The district court also ruled that the police had qualified immunity for their actions.

In determining whether Kee and Routier had an expectation of privacy while at the grave site, the Fifth Circuit examined such factors as how loudly they spoke, the proximity or potential of others to overhear them, the potential for their conversation to be reported, and anything Kee and Routier had done to keep their conversation private.

The appellate court ruled that Kee and Routier failed to come forward with sufficient specific evidence that they expected their communications to be private.

“Kee and Routier adduced no evidence regarding the context of the communications that they now seek to characterize as private,” Judge Carolyn King said in the opinion. “They do not argue that the prayers were hushed or that their voices were modulated to protect their conversations from ‘uninvited ears,’ and they have provided no information about the tone, volume, or audibility of the private communications directed toward the graves.”

The court was also concerned that Kee and Routier failed to take affirmative steps to preserve their privacy, such as making the service private or excluding people.

(Kee v. City of Rowlett) DB

© 2001 The Reporters Committee for Freedom of the Press

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