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“No, we did not,” Bosch said. “Our purpose was to record what was said at the grave.”
“Are you saying that it never occurred to you that the bugged flowers might end up in the defendant’s car or home?” Garland said.
“No, it did not,” Bosch said.
“Detective Bosch, are you — strike that. Mr. Bosch, are you familiar with the Fourth Amendment to the US Constitution?”
“Very familiar with it.”
“In your words, what does it say?”
“It protects citizens from search and seizure without probable cause.”
“And who determines whether there is probable cause?”
“A judge signs off on it.”
“And you say there was never any discussion between you and the LAPD about making sure you had probable cause to plant a bug in Mr. Talbot’s private vehicle?”
“That was not our intention. We were bugging the grave, which was not a private vehicle.”
“Did you know that the land, the plot where Jennifer Talbot is buried, was bought and therefore owned by Gregory Talbot?”
Bosch paused for a moment. Winston had not covered this question during the prep for the hearing. Bosch glanced at her and saw that she had just opened a laptop and was typing. That told him she was looking for prior rulings or precedent in regard to ownership of a grave site. Mention of this had not been part of Garland’s motion to suppress.
“The witness will answer the question,” Leibowitz prompted.
“No, I did not know that,” Bosch said.
Bosch looked past Winston to the first row of the gallery. He saw a concerned look on Ballard’s face.
“Mr. Bosch, did you understand at the time of this operation that the Fourth Amendment specifically protects citizens from unreasonable government intrusion into their private lives, homes, and property?”
“Yes, I did,” Bosch said.
“And yet you and your LAPD pals took no action to secure a search warrant in this matter?”
“Like I said before, we did not believe it was required. We had no idea at that time that Talbot would take the flowers with him.”
“Are you familiar with the common-law tort regarding intrusion upon seclusion?”
“Uh — ”
Winston objected.
“Your Honor, the potential of a civil liability should not be considered in this criminal matter,” she said. “These were actions taken under the color of law.”
“Your Honor,” Garland countered, “we have established through testimony that Mr. Bosch had no badge and no authority under the color of law. He was a private citizen who planted a recording device without warrant or probable cause in the vehicle belonging to a citizen who had the reasonable expectation of privacy. The proceeds of such an illegal intrusion should be excluded.”
“Your Honor, may I respond?” Winston said.
“No need,” Leibowitz said. “The matter before the court falls under criminal law. I am not going to go down the crooked path of entwining civil and criminal. If Mr. Talbot wishes to pursue a civil complaint against Mr. Bosch or the LAPD, that is his business. But it is not this court’s business. The objection is sustained. Do you have anything else for this witness, Mr. Garland?”
“Thank you, Your Honor,” Garland said. “Nothing further at this time.”
The judge asked Ross if he wanted a turn with Bosch but first admonished him not to repeat questions already asked by Garland. With that warning, Ross passed.
“Does the state wish to cross-examine?” Leibowitz asked.
