An order received by Historic City News, dated April 8th, confirmed that two St Johns County deputy sheriffs, Sergeant Brian Canova and Detective Thomas Marmo, failed to convince the US Court of Appeals, to overturn the judgment of the US District Court for the Middle District of Florida in a lawsuit brought against them by a St Johns County attorney and her client.
Anne Marie Gennusa and Joel Studivant prevailed in their action against Canova and Marmo, individually, when the District Court ruled that the officers were not protected by “qualified immunity” when they eavesdropped, without a warrant, into a constitutionally protected attorney-client communication.
In the summer of 2009, Marmo was investigating Studivant’s possible misdemeanor violation of a domestic violence injunction. On June 8, 2009, in the course of that investigation, Marmo conducted a non-custodial interview of Studivant at the St. Johns County Sheriff’s Office. Gennusa was present during the interview as 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 Studivant or 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 Marmo and 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 Studivant and Gennusa were not told that they were being recorded or monitored.
When the interview began, Studivant agreed to prepare a sworn written statement. As Studivant began writing his statement, Marmo left the interview room and closed the door. While they were alone in the room, Studivant and Gennusa discussed matters related to the investigation.
Gennusa then left the interview room and met with Marmo in his office. When she returned to the interview room, Gennusa closed the door and informed Studivant that Marmo was going to arrest him. Following a discussion with Gennusa, Studivant decided he no longer wanted to give Marmo a written statement.
Marmo came back to the interview room and demanded Studivant’s written statement. After a somewhat heated discussion, Studivant and Gennusa refused to turn over the statement. Marmo left the room again and went to see his supervisor, Sgt. Canova. During their conversation, Marmo and Canova actively monitored Studivant and Gennusa in the interview room, and saw Gennusa place the written statement on the table. Canova instructed Marmo to return to the interview room and retrieve the statement.
As he came back into the room, Marmo forcibly grabbed the statement from underneath Gennusa’s hand. He then arrested Studivant for violation of the domestic violence injunction, and later attached the written statement to his arrest report. Studivant ultimately entered into a deferred prosecution agreement, and the criminal charge against him was dismissed.
The Appeals Court ruled that Studivant and Gennusa had a reasonable expectation of privacy for their privileged attorney-client conversations in the interview room of the St. Johns County Sheriff’s Office. The surreptitious recording and monitoring of those attorney-client conversations, without notice to Studivant or Gennusa, and without a warrant, violated the Fourth Amendment.
The District Court’s grant of summary judgment in favor of Studivant and Gennusa was affirmed, and the case was remanded for further proceedings.
© 2014, St Augustine. All rights reserved.