The Case of the Uninvited Ear

By James J. Kilpatrick

Universal Press Syndicated
2001

Five years ago two little boys, Damon and Devon Routier, were found stabbed to death in the living room of their home near Dallas.  Some months later their mother, Darlie Routier, was found guilty of their murder and sentenced to death.

Now the Routier case is pending in the Supreme Court on a petition for review, but the appeal does not involve her crime and punishment.  It might well be called the Case of the Uninvited Ear.

The murder occurred on June 6, 1996.  On June 14, the surviving family held a private prayer service at the gravesite.  This was a public, non-sectarian cemetery, in which Darin Routier, the children’s father, had purchased a burial plot.  Only family members and close friends were invited.  The press was not invited, but at least on TV station reported that a service would be held.

Then someone at the Rowlett Police Department had a bright idea.  It may have been Jimmy Ray Patterson, who served as lead detective, or it come have been detective Chris Frosch.  Frosch would borrow an urn from the cemetery.  The urn would be placed next to the graves, and the officers would put a microphone in it.  As people came to pray and mourn, the cops would listen in.

Without bothering to obtain a warrant, the officers put their bright idea in motion.  The tape rolled for 14 hours.  As it turned out, none of the tape was offered in evidence.

At the mother’s trial in January 1997, Patterson said they installed the bug “in case someone went up there and made a confession about what happened.”  Defense counsel pursued the matter:

Q:  But you are here telling the jury that you folks put microphones there at the gravesite to monitor the conversations of the people who had gone there to pray and to grieve at the passing of these two children?

A: Yes, sir.

Q: And this was hidden, so that people couldn’t find them – I mean, it was designed to be done surreptitiously, was it not?

A: So that they didn’t see it, that’s right.

Q:  And you would record those private moments, is that right?

A:  Yes, we did.

After the criminal trial ended, the children’s father and grandmother filed a civil suit.  They charged that the police and prosecutor had violated their Fourth Amendment rights by intentionally intruding upon their most personal and private moments.

The amendment guarantees that we will be secure in our “person” against unreasonable search.  The defendants moved for dismissal on summary judgment.

Incredibly – at least it seems incredible to me – the district court granted the motion to dismiss.  This was the judge’s bizarre reasoning: The children’s father and grandmother had no rightful expectation of privacy at their private service – a service held at their own burial plot.  Even if they did have such an expectation, “the expectation is not one which society is prepared to regard as reasonable.”

The 5^th Circuit agreed.  Perhaps most damaging to the plaintiffs’ case, said Chief Judge Carolyn Dineen King, is that they could not point to any affirmative steps they had taken to preserve their privacy.  The court ruled, in substance, that if their privacy had been invaded, it was their own fault.  Before saying their prayers, they should have checked the funerary urn.

I hope the Supreme Court takes the case, but I doubt that it will.  It’s hard to see how the father and grandmother were significantly damaged.  They are understandably sore at the cops, who behaved outrageously, but they suffered no public humiliation, and they had no financial loss.

But you never know for sure.  In a landmark case in 1967, the Supreme Court upheld the privacy claims of a gambler named Katz who plied his trade in a sidewalk telephone booth.

The cops bugged the booth, but the high court ruled that evidence so obtained could not be admitted.

Like the graveyard in Texas, the booth was “accessible to the public,” but in his little private place Katz had a right “to exclude the uninvited ear.”

It’s a constitutional right that cops should be told once again to observe.

Readers can reach Mr. Kilpatrick at klpatjj@aol.com.