A federal judge has ruled a secret recording between a suspect and his attorney at the St. Johns County Sheriff’s Office violated his Fourth Amendment right against unreasonable search and seizure and a federal wiretap law.
Joel Keith Studivant’s Fourth Amendment rights were also violated when a detective snatched from his attorney a statement he’d written but didn’t want to turn over, ruled U.S. District Judge Timothy Corrigan.
The 2009 case involves Studivant, then 43, and his conversation in an interview room at the Sheriff’s Office with defense attorney Anne Marie Gennusa. The conversation occurred before Studivant, of St. Augustine, was charged with violating a domestic-violence injunction in June 2009.
Gennusa and Studivant filed a lawsuit saying the detective involved in the interview, a supervisor and Sheriff David Shoar, as head of the agency, violated the Fourth Amendment and the Federal Wiretap Act.
The lawsuit states that the plaintiffs were entitled to a reasonable expectation of privacy that was violated when detective Thomas Marmo left them in the interview room without telling them they were being secretly recorded. There were also no postings about such recordings. The lawsuit argues that the act violated attorney-client privilege.
It also accuses Shoar of knowingly allowing such secret interviews as a policy, practice and procedure of his agency. Shoar at the time called the lawsuit the “most frivolous” he’d ever seen.
The lawsuit also says that Marmo, at the direction of his supervisor, illegally and forcefully snatched from Gennusa a statement Studivant had written that neither she nor he wanted to give him. The seizure was unreasonable because the statement was taken without a warrant, according to the lawsuit.
Corrigan ruled Tuesday that Marmo and Sgt. Brian Canova were wrong for not telling the pair they were being recorded and for seizing the statement. It was noted in Corrigan’s order that the Fourth Amendment covered both instances because it governs not only the seizure of tangible items, but extends to the recording of oral statements.
Corrigan ruled the plaintiffs didn’t prove their case against Shoar.
While Gennusa and Studivant asked for actual and compensatory damages, punitive damages and payment for attorney’s fees and costs, Corrigan’s order said they could only seek the latter.
Attorney John Jolly Jr., representing the defendants, said an appeal is being considered. He declined to comment further.
Jacksonville civil rights attorney Bill Sheppard and his partners, Matt Kachergus and Bryan DeMaggio, filed the lawsuit. “This is an important case because it preserves the attorney-client privilege, which is essential to our system of justice,” Sheppard said.
One of several issues that came up as part of the interview and lawsuit involved Studivant’s voluntary written statement of his version of the charge against him. Studivant began writing the statement while Marmo and Gennusa were in the room and continued when Marmo left. At one point, Gennusa put the statement in her purse, left the room and returned to tell Studivant he was about to be arrested.
The video of the incident shows Marmo return to the room as Gennusa has taken the statement from her purse. They have a verbal exchange in which Marmo insisted the paper was Sheriff’s Office property. Marmo left the room again, returned a short time later and snatched the statement from Gennusa’s hand after being told to by his sergeant, according to the lawsuit. The snatching was done with such force it broke the fingernail on Gennusa’s left ring finger. After seizing the statement, Marmo arrested Studivant. The charges were later dismissed after Studivant entered a pre-trial intervention program.
A Sheriff’s Office internal affairs investigation sustained an administrative charge of “failure to use sound judgment” against Marmo involving the seizure of the statement, said Sgt. Chuck Mulligan, an agency spokesman. Mulligan said Marmo received a “consultation,” which is equivalent to a verbal counseling and not considered discipline.
Marmo filed a complaint with The Florida Bar, saying Gennusa “tampered with evidence, hindered a police investigation and acted outside the scope of her authority as an attorney for her client.” The Bar’s grievance committee found that Gennusa “remained professional ... and sought legitimate means to resolve the matter.”
Story published in The Florida Times-Union by Jim SchoettlerAlong with monetary damages, the lawsuit sought to have the Sheriff’s Office stop secret audio and video recordings of attorney-client conversations. The agency posted signs that recordings were being made after the suit was filed.