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David Vitter's Investigator Could Face Wiretapping Charges. The Case Will Go Nowhere

 Jefferson Parish Sheriff Newell Normand held an afternoon press conference to elaborate more on the incident that he and his cronies created at the Royal Blend Coffee Shop on Metairie Road on October 23rd. Normand was having a "coffee klatch" at the establishment with several associates when they realized they were being filmed by Robert Frenzel an investigator employed by David Vitter. From The Advocate

On Oct. 23, a regular coffee klatch that includes Normand convened at the Royal Blend cafe in Old Metairie. At some point, the group noticed a man seated at a nearby table filming the group.

The alleged spy was later identified as Robert J. Frenzel, a private investigator from Dallas who had been doing research for U.S. Sen. David Vitter’s campaign.

There seems to be some confusion as to whether Frenzel could legally film Normand. Mainly, this comes from Normand himself, who has head scratchingly suggested since the incident that Frenzel could be arrested for violating the state wire tapping statute, LA RS 15:1303.

You can read the wiretapping law at your leisure, but as has been pointed out by folks, Louisiana is one party consent state. Meaning that one party to a conversation has to agree or have knowledge that it is being recorded. As such, Normand and others have posited that because Frenzel was not a party to the conversation at the Royal Blend, he violated the statute and thus should be arrested. But as Lee Corso would say "Not so fast, my friend."

The key question is what is Normand's reasonable expectation of privacy. The only case on point in Louisiana is the case of State v. Smith. In Smith, an investigator for the New Orleans public defender was in a hallway at the New Orleans jail and overheard an ADA interviewing a potential witness. Smith, the investigator, recorded the conversation and the recording was brought to light when the witness committed perjury at trial. Smith was later indicted for violating LA R.S. 15:1303. The indictment was quashed (thrown out) and the State appealed. 

In Smith, the court outlined the relevant line of inquiry. 

For purposes of offense of interception and disclosure of wire, electronic, or oral communications, it must be decided whether the expectation of privacy afforded to victim, viewed objectively, was justifiable under the circumstances, as expectation must be one that society is prepared to recognize as reasonable. 

The court upheld the motion to quash based on the fact that Smith was lawfully in the hallway. The conversation was audible to the human ear and Smith used no enhancement to his recording device. 

The case can easily be applied to this situation and Frenzel has a stronger case than the defendants in Smith. Normand is in a public place. He is a public figure in elected office and regularly speaks on matters of great public importance, such as the upcoming election. It is not unreasonable for people to photograph him and record him while he is in public. Frenzel was using a recording device with no enhancements and was only recording what was audible to the human ear. He was sitting a few tables away. The Royal Blend has an open floor plan and Normand does not suggest he was in a secluded or private area of the store. The location is open to the general public and it is not unusual for people to gather there. Further, Normand has many places where he could go and have a private conversation, his office, his squad car, etc.  He knows he has no expectation of privacy while in the Royal Blend and it is ridiculous for him to suggest otherwise. 

Applying the Smith, standard, a court will rule that Normand did not have a reasonable objective expectation of privacy and any criminal case against Frenzell for violating the wire tapping law will go nowhere. 

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