Kee v. City of Rowlett TX

Revised May 4, 2001

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-10555

_____________________

DARLIE KEE; DARIN ROUTIER

Plaintiffs - Appellants

v.

CITY OF ROWLETT TEXAS; JIMMY RAY PATTERSON; CHRIS FROSCH;

GREG DAVIS, Assistant District Attorney for Dallas County

Defendants - Appellees

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

_________________________________________________________________

March 28, 2001

Before KING, Chief Judge, and HIGGINBOTHAM and DUHÉ, Circuit

Judges.

KING, Chief Judge:

Plaintiffs-Appellants Darlie Kee and Darin Routier appeal

the district court’s grant of summary judgment in favor of

Defendants-Appellees the City of Rowlett, police officers Jimmy

Ray Patterson and Chris Frosch, and Assistant District Attorney

Greg Davis. The district court held that the placement of an

electronic surveillance microphone at an outdoor grave site

memorial service, which intercepted Kee and Routier’s

communications, did not violate constitutional or statutory

rights and therefore did not provide a predicate for their claims

under 42 U.S.C. § 1983 and 18 U.S.C. § 2511. The district court

reasoned that Kee and Routier failed to demonstrate that they

possessed a reasonable expectation of privacy regarding their

oral communications at the grave site memorial service. For the

following reasons, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

On June 14, 1996, Darlie Kee (“Kee”) and Darin Routier

(“Routier”) attended a grave site memorial service for Damon

Routier and Devon Routier, two minor children who were murdered

on June 6, 1996 in Rowlett, Texas. Kee was the grandmother of

the deceased children. Routier was the father of the deceased

children. Darlie Routier, the children’s mother, was convicted

of capital murder for the children’s deaths.

Jimmy Ray Patterson and Chris Frosch, police officers in the

City of Rowlett (the “City”), were assigned to investigate the

murders. As part of the investigation, an electronic

surveillance wiretap was placed1 in a funeral urn in close

1

There is some discrepancy in the record regarding

whether Patterson and Frosch were directly responsible for the

actual placing of the wiretap in this location. Both Patterson

and Frosch state, in their affidavits submitted in support of

their summary judgment motion, that they were aware of the

investigation into the Routier children’s murder. Both claim,

2

proximity to the children’s graves. The officers did not obtain

a judicial warrant or court order, nor did they obtain the

family’s consent before placing the surveillance device at the

grave site. However, the officers did obtain permission from the

owners of the cemetery to enter and conduct their surveillance.

The grave site at issue was a privately owned plot of land

situated in an outdoor and publicly accessible cemetery. The

electronic surveillance device consisted of a microphone planted

in an urn, which recorded sounds and conversations at the grave

site. The microphone recorded the surrounding sounds of the

grave site for approximately fourteen hours. Police also

videotaped the activities at the grave site.

Due to the notoriety of the murders and the subsequent

investigation, the news media and public were aware of the

planned memorial service. News reporters from local television

stations and newspapers attended and observed portions of the

activity at the grave site. Family members, including Kee and

however, that they had circumscribed roles in the direct

surveillance activities. In contrast, Kee and Routier allege

that Patterson admitted under oath in the state criminal trial of

Darlie Kee that he was the lead investigator on the case and that

he was involved in planning the surveillance. Furthermore, Kee

and Routier point to Frosch’s affidavit in which he admitted to

obtaining an urn from the cemetery owners, which he understood

would be used in the surveillance. Frosch also admitted to

discussing the surveillance with the owners of the cemetery.

The district court did not determine the extent of Patterson

and Frosch’s involvement, finding that even if Patterson and

Frosch were involved in the surveillance, no constitutionally

significant expectation of privacy was violated. We proceed in

similar fashion.

3

Routier, and other invited guests participated in services,

prayers, and conversations at the grave site. The summary

judgment evidence fails to detail exactly how many people

attended the grave site, who was in attendance, whether there was

more than one memorial service during the day, when the media

observers were present, and what conversations were recorded.2

The existence of the surveillance recordings was first

discovered by Kee and Routier during the capital murder trial of

Darlie Routier. At the trial, Patterson testified to the

placement of the microphone surveillance device at the grave

site. Patterson also testified that the device was placed in the

urn beside the grave site “[i]n case someone went up there and

made a confession about what happened.” Upon learning about the

existence of the surveillance recordings, Kee and Routier brought

suit against those individuals and entities allegedly involved in

the taping of their conversations.

The complaint sought damages, attorneys’ fees, and a

declaratory judgment against Patterson and Frosch; Greg Davis,

the Assistant District Attorney assigned to the case; and the

City (collectively, the “defendants”). The focus of the

complaint was limited to those communications and prayers

directed toward the deceased children. Specifically, Kee and

2

Because the district court stayed discovery until the

qualified immunity issues were determined, the factual record is

limited.

4

Routier sought damages from Patterson, Frosch, and Davis under 42

U.S.C. § 1983, alleging violations of rights under the Fourth and

Fourteenth Amendments to be free from unreasonable searches and

seizures, and alleging violations of the constitutional right to

privacy emanating from the general protections of the First,

Third, Fourth, Fifth, Ninth, and Fourteenth Amendments. Kee and

Routier also sought damages under 18 U.S.C. §§ 2510-25223 for

violation of the federal statutory law that prohibits illegally

intercepting oral communications4 without a warrant. Kee and

Routier sought damages from the City under 42 U.S.C. § 1983,

alleging that the City failed to properly supervise and train the

officers as to the applicable law, and that this failure was a

deliberate and intentional act of indifference. Finally, Kee and

3

Kee and Routier claimed a violation of 18 U.S.C. § 2511.

Section 2511 provides in relevant part: “(1) Except as otherwise

specifically provided in this chapter any person who[:] (a)

intentionally intercepts, endeavors to intercept, or procures any

other person to intercept or endeavor to intercept, any wire,

oral, or electronic communication . . . shall be punished . . .

or shall be subject to suit.” 18 U.S.C. § 2511(1)(a) (2000).

In general, Title III of the Omnibus Crime Control and Safe

Streets Act of 1968, as amended by the Electronic Communications

Privacy Act of 1986 (“Federal Wiretap Act”), “has as its dual

purpose (1) protecting the privacy of wire and oral

communications, and (2) delineating on a uniform basis the

circumstances and conditions under which the interception of wire

and oral communications may be authorized.” Forsyth v. Barr, 19

F.3d 1527, 1534 (5th Cir. 1994) (quoting Gelbard v. United

States, 408 U.S. 41, 48 (1972)).

4

Section 2510 defines “oral communication” as “any oral

communication uttered by a person exhibiting an expectation that

such communication is not subject to interception under

circumstances justifying such expectation, but such term does not

include any electronic communication.” 18 U.S.C. § 2510(2).

5

Routier sought declaratory relief requesting that the actions of

the defendants be declared unconstitutional.

In three separate motions, the defendants moved for summary

judgment.5 The district court held that Kee and Routier had not

demonstrated that they had a subjective expectation of privacy in

their conversations and prayers at the grave site. Further, the

district court held that even if Kee and Routier could establish

a subjective expectation of privacy, the district court was not

prepared to recognize this expectation as objectively reasonable.

Finally, the district court found that even if Kee and Routier

could demonstrate a subjective and objectively reasonable

expectation of privacy, defendants were entitled to qualified

immunity on the claims. Because the predicate constitutional

violation could not be demonstrated, the district court dismissed

5

Patterson and Frosch moved for summary judgment on the

ground that Kee and Routier had failed to demonstrate that a

constitutional right had been violated. In the alternative,

Patterson and Frosch invoked qualified immunity, arguing that no

reasonable police officer would have believed that the officers’

actions would have violated the constitutional rights of Kee and

Routier.

Davis moved for summary judgment on the ground that Kee and

Routier could not allege an actionable federal claim against him

personally, because they could not directly connect him to

supervising or administering the electronic surveillance. Davis

also invoked absolute and qualified immunity because he alleged

his actions were taken pursuant to his prosecutorial duties.

The City moved for summary judgment on the ground that Kee

and Routier could not demonstrate that they had a

constitutionally protected reasonable expectation of privacy and

that Kee and Routier could not demonstrate that the City

maintained a policy, practice, or custom that authorized its

police officers to violate the reasonable expectation of privacy

of its citizens.

6

all of the constitutional and statutory claims against the

defendants.

Kee and Routier timely appeal the grants of summary

judgment.

II. STANDARD OF REVIEW

This court reviews a grant of summary judgment de novo,

viewing the evidence in the light most favorable to the

nonmovant. Smith v. Brenoettsy, 158 F.3d 908, 911 (5th Cir.

1998); see also Tolson v. Avondale Indus., Inc., 141 F.3d 604,

608 (5th Cir. 1998). “Summary judgment is proper ‘if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law.’”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting FED.

R. CIV. P. 56(c)). The moving party bears the burden of showing

the district court that there is an absence of evidence to

support the nonmoving party’s case. See id. at 325. “If the

moving party fails to meet this initial burden, the motion must

be denied, regardless of the nonmovant’s response. If the movant

does, however, meet this burden, the nonmovant must go beyond the

pleadings and designate specific facts showing that there is a

genuine issue for trial.” Tubacex, Inc. v. M/V Risan, 45 F.3d

951, 954 (5th Cir. 1995). “A dispute over a material fact is

7

genuine ‘if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.’” Smith, 158 F.3d at

911 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)). The substantive law determines which facts are

material. See Anderson, 477 U.S. at 248.

III. REASONABLE EXPECTATION OF PRIVACY

The dispositive issue in Kee and Routier’s complaint is

whether the secret electronic recording of their private prayers

and conversations directed at their deceased relatives violated

their reasonable expectation of privacy. Their Fourth Amendment

and “right to privacy” claims rest on the assumption that they

had a constitutionally protected reasonable expectation of

privacy regarding their oral communications at the outdoor grave

site.6 Their statutory claims, arising under 18 U.S.C. § 2511,

6

Specifically, Kee and Routier’s complaint alleges

violations of the Fourth and Fourteenth Amendments: “The Fourth

and Fourteenth Amendments protect Plaintiffs from Defendants’

unlawful search and seizure. The conduct of Defendants infringes

upon the Plaintiffs’ personal liberty and privacy rights.”

In addition, they allege infringement of their right to

privacy under the First, Third, Fourth, Fifth, Ninth, and

Fourteenth Amendments: “The Constitution of the United States

protects the Plaintiffs from the Defendants indiscriminate

invasion in both their conduct and in their speech. The rights

of Plaintiffs to grieve and mourn the loss [of] their close

relatives at a grave site service raises very dear and close

personal matters which are private and which involve family

relationships and are thus protected. The Plaintiffs had a

reasonable expectation of privacy during the private grave site

funeral and prayer services for Damon and Devon Routier which was

violated, without warrant or court order, by the Defendants’

conduct described herein.”

8

also are predicated on enjoying a reasonable expectation of

privacy in these oral communications.7 In similar fashion, the

defendants’ motions for summary judgment and defenses of

qualified immunity are based on the fact that Kee and Routier

cannot demonstrate that they ever possessed a reasonable

expectation of privacy at the grave site upon which to base their

constitutional and statutory claims. We approach both the

constitutional and statutory claims under essentially the same

analysis, asking whether Kee and Routier can demonstrate a

reasonable expectation of privacy. Accordingly, our analysis

necessarily focuses on this precise question.8

7

Kee and Routier’s complaint alleges “the conduct of the

Defendants as described [in the complaint] constitutes a

violation of 18 U.S.C.A. § 2511, et. seq., chapter 119—Wire and

Electronic Communications Interception and Interception of Oral

Communications as set forth in Title 119 of the United States

Code Annotated. The Defendants’ conduct as described herein is

an unlawful interception and/or disclosure of an oral

communication as prohibited by 18 U.S.C.A. § 2511, et. seq.” We

note that the district court did not specifically address Kee and

Routier’s § 2511 claims.

8

In the instant case, the Fourth Amendment determination

of a reasonable expectation of privacy and the federal wiretap

analysis overlap. 18 U.S.C. § 2510(2) protects oral

communications “uttered by a person exhibiting an expectation

that such communication is not subject to interception under

circumstances justifying such expectation.” 18 U.S.C. § 2510(2).

The legislative history of this section demonstrates that

Congress intended this definition of oral communication to

parallel the reasonable expectation of privacy test set out in

Katz v. United States, 389 U.S. 347 (1967). See S. REP. NO. 90-

1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2178; United

States v. Turner, 209 F.3d 1198, 1200 (10th Cir. 2000); United

States v. McKinnon, 985 F.2d 525, 527 (11th Cir. 1993).

9

A. Reasonable Expectation of Privacy in Oral Communications

“The touchstone of Fourth Amendment analysis is whether a

person has a ‘constitutionally protected reasonable expectation

of privacy.’” California v. Ciraolo, 476 U.S. 207, 211 (1986)

(quoting Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan,

J., concurring)); see also Smith v. Maryland, 442 U.S. 735, 740

(1979) (“Consistently with Katz, this Court uniformly has held

that the application of the Fourth Amendment depends on whether

the person invoking its protection can claim a ‘justifiable,’ a

‘reasonable,’ or a ‘legitimate expectation of privacy’ that has

been invaded by government action.”). Following the Katz

standard,9 “[o]ur Fourth Amendment analysis embraces two

questions. First, we ask whether the individual, by his conduct,

has exhibited an actual expectation of privacy; that is, whether

he has shown that he [sought] to preserve [something] as private.

. . . Second, we inquire whether the individual’s expectation of

privacy is one that society is prepared to recognize as

reasonable.” Bond v. United States, 529 U.S. 334, 338 (2000)

(citations and internal quotations omitted). Therefore, in order

to establish a constitutionally protected reasonable expectation

of privacy, Kee and Routier must demonstrate both that they had

an actual expectation of privacy, based on a showing that they

9

Katz involved a factual situation in which government

agents eavesdropped on conversations in a telephone booth by

means of an electronic listening device attached to the top of

the booth. See 389 U.S. 347, 351 (1967).

10

sought to preserve something as private (which we call a

subjective expectation of privacy), and that their expectation of

privacy is one that society recognizes as reasonable (which we

call an objective expectation of privacy).

The district court relied on United States v. Cardoza-

Hinojosa, 140 F.3d 610, 615 (5th Cir. 1998), to find that Kee and

Routier did not demonstrate a subjective expectation of privacy

in their public oral communications. Cardoza-Hinojosa addressed

whether an individual who owned a free-standing shed, which he

claimed was used to operate a part-time welding business, had a

reasonable expectation of privacy in that structure sufficient to

support Fourth Amendment standing to object to the search of the

structure. The court effectively focused on the subjective

expectation of privacy component of the test and determined that,

under the facts of the case, the defendant did not have a

subjective expectation of privacy in the shed and, thus, lacked

standing to raise a Fourth Amendment challenge.

Despite the differing, non-real property context of the

instant case, the district court adopted the five-factor test set

out in Cardoza-Hinojosa and applied it to the prayers and

conversations at the public grave site. The Cardoza-Hinojosa

factors to determine an expectation of privacy include: (1)

“whether the defendant has a [property or] possessory interest in

the thing seized or the place searched,” (2) “whether he has a

right to exclude others from that place,” (3) “whether he has

11

exhibited a subjective expectation of privacy that it would

remain free from governmental intrusion,” (4) “whether he took

normal precautions to maintain privacy,” and (5) “whether he was

legitimately on the premises.” Id. (quoting United States v.

Ibarra, 948 F.2d 903, 905 (5th Cir. 1991)).10 While we find

these factors informative, we ultimately conclude that they

provide an imprecise framework to judge an individual’s

subjective expectation of privacy in the context of oral

communications.

Our difficulty in applying the Cardoza-Hinojosa factors to

oral communications is that a subjective expectation of privacy

in oral communications may, but does not necessarily, turn on the

physical characteristics of the place or property in which the

speech takes place. In fact, Katz clearly shifts the

constitutional protection beyond conceptions based on property to

focus on the individual’s privacy interests. See Katz, 389 U.S.

at 351 (“[T]he Fourth Amendment protects people, not places.

What a person knowingly exposes to the public, even in his own

home or office, is not a subject of Fourth Amendment protection.

But what he seeks to preserve as private, even in an area

accessible to the public, may be constitutionally protected.”

(citations omitted)); see also United States v. Jackson, 588 F.2d

10

Like Cardoza-Hinojosa, Ibarra involved the question

whether defendants had standing to contest the search of a

physical structure, specifically a house. See Ibarra, 948 F.2d

at 906.

12

1046, 1052 (5th Cir. 1979) (“No matter where an individual is,

whether in his home, a motel room, or a public park, he is

entitled to a ‘reasonable’ expectation of privacy.” (citing Katz,

389 U.S. at 359) (Douglas, J., concurring)).

Thus, while appropriate to determine the expectation of

privacy in the context of searches of physical real property, the

Cardoza-Hinojosa factors fail to engage the more difficult

questions arising from oral communications, especially those

communications that occur in areas accessible to the public. See

Katz, 389 U.S. at 352 (“[W]hat [Katz] sought to exclude when he

entered the booth was not the intruding eye — it was the

uninvited ear. He did not shed his right to do so simply because

he made his calls from a place where he might be seen.”); see

also United States v. Smith, 978 F.2d 171, 179 (5th Cir. 1992)

(“Courts should bear in mind that the issue is not whether it is

conceivable that someone could eavesdrop on a conversation but

whether it is reasonable to expect privacy.”). To be clear, our

concern with the district court’s determination is simply one of

emphasis; we find that the third and fourth factors, namely

whether Kee and Routier “exhibited a subjective expectation of

privacy that [their communications] would remain free from

governmental intrusion” and whether they “took normal precautions

to maintain privacy” are the dispositive considerations in the

13

context of the public conversations and prayers at issue in this

case.11

In explicating these two factors, we are guided by analogous

cases involving the reasonable expectation of privacy afforded to

oral communications in the eavesdropping and wiretap contexts.

Primarily, courts have looked to considerations such as (1) the

volume of the communication or conversation12; (2) the proximity

11

Applying the Cardoza-Hinojosa factors to the factual

situation in Katz demonstrates the appropriateness of this shift

in emphasis. For example, Katz had a negligible property or

possessory interest in the telephone booth; did not have an

enforceable right to exclude others from the property; and while

legitimately on the premises, did not gain an expectation of

privacy from that position. Instead, the constitutional

protections stemmed from the fact that he subjectively expected

his conversations to be private and that he took the normal

precautions available to him to call from inside a booth.

12

See, e.g., United States v. Smith, 978 F.2d 171, 177

(5th Cir. 1992) (citing United States v. Burns, 624 F.2d 95, 100

(10th Cir. 1980), for the proposition that a loud conversation in

hotel room that could be heard in adjoining rooms precluded a

finding of a reasonable expectation of privacy); Walker v. Darby,

911 F.2d 1573, 1579 (11th Cir. 1990) (finding a question of fact,

sufficient to defeat summary judgment, in whether defendant’s

conversations were electronically intercepted in a manner that

invaded a reasonable expectation of privacy); United States v.

Agapito, 620 F.2d 324, 329 (2d Cir. 1980) (finding that

conversations loud enough to be heard by others in an adjoining

room to undermine a reasonable expectation of privacy); Wesley v.

WISN Div.– Hearst Corp., 806 F. Supp. 812, 814 (E.D. Wis. 1992)

(finding evidence that plaintiffs talked in “hushed voices” or

“ceased speaking altogether, to avoid being overheard” relevant

to determine reasonable expectation of privacy); Kemp v. Block,

607 F. Supp. 1262, 1264 (D. Nev. 1985) (finding no reasonable

expectation of privacy because plaintiff argued in a loud voice

that could be overheard by coworkers).

14

or potential of other individuals to overhear the conversation13;

(3) the potential for communications to be reported14; (4) the

affirmative actions taken by the speakers to shield their

privacy15; (5) the need for technological enhancements to hear

13

See, e.g., In re John Doe Trader Number One, 894 F.2d

240, 243 (7th Cir. 1990) (finding no reasonable expectation of

privacy for comments made on the trading floor of the Chicago

Mercantile Exchange because of the large number of people

present); Kemp, 607 F. Supp. at 1264 (finding that the presence

of coworkers undermined any reasonable expectation of privacy);

But see Burns, 624 F.2d at 100 (reasoning that Katz could

reasonably assume that “uninvited ears” were not listening . . .

“because the unimpaired vision that attends use of a transparent

phone booth afforded him the reasonable conclusion that no

listener was in the vicinity”); United States v. McIntyre, 582

F.2d 1221, 1224 (9th Cir. 1978) (finding reasonable expectation

of privacy in conversations that took place in an office, even

though the door to the office was open and coworkers were

present).

14

See, e.g., United States v. White, 401 U.S. 745, 749

(1971) (finding that individuals take the risk that their

conversations will be reported to authorities); Hoffa v. United

States, 385 U.S. 293, 302 (1966) (“The risk of being overheard by

an eavesdropper or betrayed by an informer or deceived as to the

identity of one with whom one deals is probably inherent in the

conditions of human society.” (internal quotations and citations

omitted)); United States v. Longoria, 177 F.3d 1179, 1183 (10th

Cir. 1999) (concluding that defendant “had no reasonable

expectation that the person in whose presence he conducts

conversations will not reveal those conversations to others. He

assumed the risk that the informant would reveal his

incriminating statements to law enforcement.”); see also John Doe

Trader Number One, 894 F.2d at 243; McIntyre, 582 F.2d at 1224.

15

See, e.g., Katz, 389 U.S. at 363, n* (White, J.,

concurring) (“[A]s the Court emphasizes the petitioner ‘sought to

exclude the uninvited ear.’”); Smith, 978 F.2d at 177 (“While it

is true that the right to privacy in a personal conversation is

generally a reasonable expectation, the actions of the parties to

the conversation may reduce this expectation to the point that it

is no longer ‘reasonable’”); see also, e.g., Dorris v. Absher,

179 F.3d 420, 424 (6th Cir. 1999) (“The conversations took place

only when no one else was present, and stopped when the telephone

15

the communications16; and (6) the place or location of the oral

communications as it relates to the subjective expectations of

was being used or anyone turned onto the gravel road that was the

only entrance to the office. The record thus indicates that the

employees took great care to ensure that their conversations

remained private.”); Kemp, 607 F. Supp. at 1264 (“The subjective

expectation of privacy may be tested by any outward

manifestations by the plaintiff that he expected his discussion

with Mr. Roy in the instrument shop to be free from

eavesdroppers. A comparison of what precautions he took to

safeguard his privacy interest with the precautions he might

reasonably have taken, is appropriate.”).

16

Compare Jackson, 588 F.2d at 1051 (“Employing the

privacy interest analysis approved in Katz, we hold that these

appellants had no justifiable expectations of privacy with

respect to their motel room conversations which were audible to

the unaided ears of the government agents lawfully occupying an

adjoining room.”); John Doe Trader Number One, 894 F.2d at 244

(“The Supreme Court has long held that an agent can record those

conversations which he can hear with his unaided ear.”), and

Kemp, 607 F. Supp. at 1264 (“One of the tests used is to

ascertain whether the defendant overheard the communication with

the naked ear under uncontrived circumstances.”), with Agapito,

620 F.2d at 330 n.7 (“The absence of electronic eavesdropping of

course is significant. As Justice Brennan has pointed out: There

is a qualitative difference between electronic surveillance . . .

and conventional police strategems such as eavesdropping.”

(citations and internal quotations omitted)), United States v.

Eschweiler, 745 F.2d 435, 437-38 (7th Cir. 1984) (interpreting

Agapito to “suggest that an undercover agent who uses amplifying

equipment to overhear conversations in other rooms that would

have been inaudible to his naked ear invades interests protected

by the Fourth Amendment”), and United States v. Mankani, 738 F.2d

538, 543 (2d Cir. 1984) (“[T]he Fourth Amendment protects

conversations that cannot be heard except by means of artificial

enhancement.”).

The Court in Katz recognized this tension. On one hand

Justice Harlan explained that persons having “conversations in

the open could not be protected from being overheard,” but that

same person holding a conversation in a telephone booth did have

a reasonable expectation not to have that conversation

electronically “intercepted.” See Katz, 389 U.S. at 361

(emphasis added).

16

the individuals who are communicating.17 We agree that these

considerations help us develop, but do not define, a set of

nonexclusive factors to evaluate the subjective expectation of

privacy in oral communications in publicly accessible spaces.18

See O’Connor v. Ortega, 480 U.S. 709, 718 (1987) (recognizing in

the context of work environments that determinations of a

“reasonable expectation of privacy must be addressed on a case-

by-case basis”); United States v. Smith, 978 F.2d 171, 180 (5th

17

See, e.g., Minnesota v. Carter, 525 U.S. 83, 88 (1998)

(“The Fourth Amendment protects people, not places. But the

extent to which the Fourth Amendment protects people may depend

upon where those people are.” (citations and internal quotations

omitted)); Mankani, 738 F.2d at 542 (“Of course, the fact that

people are protected does not mean that place has no bearing on

one’s reasonable expectation of privacy. Plainly it does. Those

who claim their privacy has been unlawfully invaded do not live

in a vacuum.”); Burns, 624 F.2d at 100 (“Legitimate privacy

expectations cannot be separated from a conversation’s context.

Bedroom whispers in the middle of a large house on a large,

private tract of land carry quite different expectations of

privacy, reasonably speaking, than does a boisterous conversation

occurring in a crowded supermarket or subway.”); McIntyre, 582

F.2d at 1224 (finding “[a] business office need not be sealed to

offer its occupant a reasonable degree of privacy”); see also,

e.g., United States v. Harrelson, 754 F.2d 1153, 1169-70 (5th

Cir. 1985) (finding no legitimate expectation of privacy for

conversations held in a prison setting); United States v.

McKinnon, 985 F.2d 525, 528 (11th Cir. 1993) (holding that

defendant did not have a reasonable expectation of privacy for

communications initiated in the back seat of a police car).

18

Therefore, as was discussed in oral argument, while two

federal judges may have a reasonable expectation of privacy in a

hushed conversation on the courthouse steps, they might lose that

expectation of privacy if they spoke loudly, if they were

surrounded by people who could eavesdrop, if one of the judges

reported the conversation to authorities, if either party

otherwise took actions that would expose the confidentiality of

their communications, or if they failed to take any affirmative

steps to shield their privacy.

17

Cir. 1992) (“Any determination of the reasonableness of an

individual’s expectation of privacy is necessarily fact

intensive.”). Having determined a more appropriate framework to

analyze the facts before us, we turn to the instant case.

B. The Failure to Demonstrate Sufficient Facts to Establish a

Subjective Expectation of Privacy

Under the summary judgment standard, Kee and Routier must

demonstrate that a genuine issue of material fact exists as to

their reasonable expectation of privacy in their oral

communications. “Although we consider the evidence and all

reasonable inferences to be drawn therefrom in the light most

favorable to the nonmovant, the nonmoving party may not rest on

the mere allegations or denials of its pleadings, but must

respond by setting forth specific facts indicating a genuine

issue for trial.” Rushing v. Kansas City S. Ry. Co., 185 F.3d

496, 505 (5th Cir. 1999). Applying the nonexclusive framework

set out in Part III.A, we find that Kee and Routier have failed

to meet this burden, because they have provided insufficient

evidence in their affidavits and pleadings to show that they had

a subjective expectation of privacy.

In their affidavits, Kee and Routier assert that their

“grieving conversations and statements” and “oral prayers and

communications to ourselves and our God” should be private and

not subject to government wiretaps. These statements, alone,

18

cannot sustain the weight of Kee and Routier’s burden in

establishing that they had a subjective expectation of privacy.

See Lawrence v. Univ. of Tex. Med. Branch, 163 F.3d 309, 311-12

(5th Cir. 1999) (“[T]he non-moving party must go beyond the

pleadings and designate specific facts in the record showing that

there is a genuine issue for trial. Neither unsubstantiated

assertions nor conclusory allegations can satisfy the non-moving

party’s burden.” (citations, footnote, and internal quotations

omitted)).

For example, Kee and Routier adduced no evidence regarding

the context of the communications that they now seek to

characterize as private. 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. They do not specify

which conversations were conducted in a manner inaudible to

others and provide no information about who was present and to

whom their conversations were directed. As knowledge of these

important facts is well within the control of Kee and Routier,

the failure to include this information in their affidavits

undermines any claim of an expectancy of privacy.

In similar fashion, Kee and Routier do not assert that their

oral statements were communicated free from the possibility of

eavesdroppers who might have been in close proximity to the grave

19

site. In fact, the defendants have submitted evidence to

demonstrate that the grave site services were attended by

representatives of the media and that third parties were in close

proximity to the grave site. Kee and Routier simply fail to

respond to this argument that potentially would eviscerate a

subjective expectation of privacy. Furthermore, they provide us

with no particularized information regarding their activities

vis-à-vis the other people known to be at the cemetery and, thus,

fail to provide information necessary to find that they had a

subjective expectation of privacy.19

Perhaps most damaging to Kee and Routier’s argument is that

they failed to present evidence demonstrating any affirmative

steps taken to preserve their privacy. While it is apparent from

their affidavits that they did not expect government agents

surreptitiously to be recording their prayers, they also were

aware that the service was being conducted in an outdoor setting.

Kee and Routier fail to allege that they took any steps to ensure

that unwanted individuals were excluded or that they did anything

to preserve the private nature of the service. They point to no

reasonable safeguards or common-sense precautions taken to

preserve their expectation of privacy.

19

Following the nonexclusive factors set out in Part

III.A, we note that there is no allegation that anyone at the

grave site service reported the incident to authorities. This

consideration is, therefore, irrelevant to our analysis.

20

The strongest argument presented by Kee and Routier is that

the surveillance was accomplished through the use of

technological enhancements. This is a case in which the

information possibly was not audible to the “unaided ear.” See

United States v. Jackson, 588 F.2d 1046, 1052 (5th Cir. 1979).20

This is also a case in which the use of technological

enhancements potentially could reveal “intimate details.” See

United States v. Ishmael, 48 F.3d 850, 855 (5th Cir. 1995) (“The

crucial inquiry, as in any search and seizure analysis, is

whether the technology reveals ‘intimate details.’” (quoting Dow

Chem. v. United States, 476 U.S. 227, 238 (1986))). Despite

these factors, however, for Kee and Routier to meet the burden at

the summary judgment stage they must demonstrate more than the

fact that technology was used for surveillance purposes. They

also must show that a factual question exists as to a violation

of their subjective expectation of privacy due to that

technology. While this possibility may be increased when

technological enhancements such as wiretaps are used, the vague

affidavits put forth in support of this contention are

insufficient in the case at hand.

Finally, Kee and Routier provide almost no information

regarding the physical layout or location of the grave site where

the prayers or conversations took place. For example, no

20

See supra note 16.

21

information is provided about the privately owned burial plot in

relation to the rest of the cemetery. Kee and Routier have

presented no information regarding the grave site’s proximity to

the entrance of the cemetery, or regarding whether the public was

prevented from accessing the grave site or whether the grave site

was secluded by other graves or natural objects, such as trees or

bushes. In contrast, the defendants assert that the

conversations took place in the open air of a publicly accessible

cemetery and that there were no barriers to prevent individuals,

such as the assembled media and onlookers, from observing the

activities.21 Again, Kee and Routier have failed to meet their

summary judgment burden to demonstrate that an issue of material

21

The fact that the prayers and conversations took place

in an outdoor publicly accessible space is a difficult hurdle for

Kee and Routier to overcome. While neither party briefed the

issue, we note a possible overlap between the “open fields”

doctrine, which is well-established in Fourth Amendment

jurisprudence and the instant case. However, the open fields

doctrine has not been expanded beyond observational searches.

See Husband v. Bryan, 946 F.2d 27, 29 (5th Cir. 1991) (“Neither

this court nor the Supreme Court have extended the open fields

doctrine to anything beyond observation searches.”); Allinder v.

Ohio, 808 F.2d 1180, 1184 (6th Cir. 1987); but see United States

v. Ishmael, 48 F.3d 850, 855 (5th Cir. 1995) (applying open

fields doctrine to observation based on thermal imaging

technology). We decline to engage the issue without briefing,

but simply note that Katz supports an argument that the fact of

visual observation does not necessarily control the

reasonableness of the privacy expected for oral communications.

In short, the open fields approach cannot automatically be

adopted for use in the oral communications context. The openness

of the place where the oral communications are spoken, however,

may be a significant factor countenancing against finding a

reasonable expectation of privacy.

22

fact exists as to whether their subjective expectation of privacy

was violated.

Because we agree with the district court that no subjective

expectation of privacy was established on the facts presented, we

affirm the grants of summary judgment. As such, we do not reach

the question whether individuals such as Kee or Routier could

have an objectively reasonable expectation of privacy at a grave

site burial service under different facts or whether the

individual defendants would have qualified immunity in such a

situation. Further, because our holding rests on Kee and

Routier’s failure to demonstrate their subjective expectation of

privacy, we do not reach the question whether, in other

circumstances, officers would be required to obtain judicial

approval for a wiretap pursuant to 18 U.S.C. § 2511.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment in favor

of all defendants.

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