Wednesday, August 6, 2008

Law and Argument: Analysis Under California Law

V. Law and Argument: Analysis Under California Law

In the event this Court decides that California law controls the analysis of the question presented, the tapes and/or transcripts should still be suppressed because Grant Roy’s consent was invalid and/or there was an expectation of privacy in the conversations.

As discussed above, in California an electronic eavesdrop of a confidential communication can be conducted where one party voluntarily consents and is acting at the direction of an enumerated law enforcement officer. See Cailfornia Penal Code § 632 and 633; People v. Towery, 174 Cal.App.3rd 1114, 220 Cal.Rptr. 475 (1985). Grant Roy’s Consent Was Not Voluntary.

California Courts state that factors to consider in assessing whether the informant’s consent is voluntary include whether the informant approached the police or the police approached the informant, whether the informant is motivated by his own present or potential legal problems, whether immunity or other promises have been made by authorities and whether promises or pressure were applied by the police. See Towery at 1124.

Grant Roy was sought out by Pennsylvania law enforcement shortly after Bryan Kocis’ death because Grant Roy was involved in a lawsuit against Bryan Kocis. According to filed legal papers, Grant Roy’s company LSG Media, LLC, was involved in a lawsuit initiated by Bryan Kocis and his company Cobra Video regarding, inter alia, the trademark of Sean Lockhart’s (aka Brent Corrigan’s) name in the gay porn industry. Such lawsuit was ongoing at the time of Bryan Kocis’ death. Complaint Caption Cobra v. Lockhart et al attached hereto as “Exhibit 3.” Pennsylvania law enforcement considered Grant Roy a “known enemy” of Bryan Kocis. Excerpt of Victim Checklist attached hereto as “Exhibit 4.” Grant Roy was interviewed several times regarding his knowledge about the death of Bryan Kocis and his prior business dealings with Bryan Kocis by Pennsylvania law enforcement officials prior to acting as an informant in this matter. Such interviews were conducted in the presence of Grant Roy’s counsel and at least one interview was recorded by Grant Roy’s attorney. Grant Roy was solicited by Pennsylvania law enforcement officials to act as an Informant.

Grant Roy had a blog spot and email address titled, “Cobra Killer.” Transcript of 4/27/07 Intercept at Crabcatcher’s previously filed of record to this docket by the Commonwealth at p. 123-124.

Grant Roy never gave written consent to the recording of the conversations of April 27 or 28, 2007 to authorities, Grant Roy never gave oral consent previous to or during any taped intercept.

From these facts, an inference can be drawn that Grant Roy was initially a person of interest in the homicide of Bryan Kocis. In fact, as Grant Roy himself stated, he thought Bryan Kocis to be “a demon or a pervert,” who he “fuck[ed] with... all the time.” Transcript of 4/27/07 Intercept at Crabcatcher’s previously filed of record to this docket by the Commonwealth at p. 122. Further, Grant Roy recalls that when, “the mother fucker [ Kocis] ends up dead. . . whose got a Cobra Killer blog spot and a Cobra Killer URL?" When Mr. Kerekes states, “You?” Grant Roy replies, “Yeah.” Transcript of 4/27/07 Intercept at Crabcatcher’s previously filed of record to this docket by the Commonwealth at p. 124.

Clearly, Grant Roy perceived that he would be investigated regarding the murder of Bryan Kocis. Grant Roy harbored bad feelings and ill will toward Bryan Kocis. Grant Roy was involved in an intense legal battle with Bryan Kocis during the time of his death. Amidst these circumstances, neither the Commonwealth nor the state of California did anything to document or assure that Grant Roy’s “consent” to wear a wire was voluntary.

If the Court finds that the consent of Grant Roy was involuntary, the Court must also decide whether the communications recorded were “confidential” before it can suppress.

The Conversations Were Confidential and Kerekes Had an Expectation of Privacy

The Commonwealth cites Lieberman v. KCOP Television, Inc., 1 Cal.Rptr.3d 536 (Cal 2003) to explain the parameters of the definition of “confidential communication” contained in California Penal Code §632(c):

The statute defines “confidential communication” as including “any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded... The concept of privacy is relative. (Sanders, supra, 20 Cal4th at p. 916). Whether a person’s expectation of privacy is reasonable may depend on the identity of the person who has been able to observe or hear the subject interaction. ( at p. 923; Shulman, supra, 18 Cal.4th at pp. 233-235). The presence of others does not necessarily make an expectation of prsvacy objectively unreasonable, but presents a question of fact for the jury to resolve,

(Emphasis supplied.)

During both intercepts, Grant Roy, Sean Lockhart (aka Brent Corrigan), Joseph Kerekes and Harlow Cuadra were present.

The Commonwealth suggests that because the intercepts occurred at a restaurant and on a beach that, per se, there can be no reasonable expectation of privacy. This argument must fail.

Corporal Hannon states in his report following discussion with Grant Roy regarding the Crabcatcher intercept that during a portion of the conversation, Harlow Cuadra leaned towards Sean Lockhart and silently responded to a question asked of him. This evidences that, at least for portions of the Crabcatcher conversation, the speakers had an expectation of privacy. See Report of Cpl. Hannon attached hereto as “Exhibit 5.” Further, according to the Commonwealth, the second intercept took place at Black’s Beach—a nude beach in California specifically chosen as a meeting location by Cuadra and Kerekes where they would answer any questions because they did not expect either Grant Roy or Sean Lockhart to wear a body wire on a nude beach. See “Exhibit 5’:

Exhibit 5

Simply because a conversation takes place in a location open to the public does not prove that the speaker intends for his words to be made public, overheard or recorded. The law is clear that it is a factual determination to be made after examining all of the circumstances.

7 In furtherance of this argument, the Commonwealth makes quantum assumptive leaps such as “one can be easily overheard” at the restaurant and that ‘one’s voice can be projected and carried by wind” on the beach. These assertions are wholly speculative and are the unsupported creation of counsel.