The Fourth Amendment and Robert Durst’s alleged confession

HBO’s documentary about real estate scion Robert Durst ended with a possible murder confession caught on tape after an interview with producers. But will the audio hold up in court against Fourth Amendment challenges?

In the days after the series ended, many – but not all – legal experts were saying the audio was likely or probably admissible in court. But there are doubters and a sense that Durst’s defense lawyers will have a lot to say about the evidence. (The same lawyers helped Durst gain an acquittal on murder charges in 2003, after he claimed self-defense after killing a neighbor in Texas.)

The sequence of events and the timeline that led to the audio will likely be debated over the next several months, with questions about how and when Durst agreed to a second interview with producers Andrew Jarecki and Marc Smerling.

Jarecki also directed the documentary, and after initially talking about the timeline of acquiring the audio, he stopped doing interviews with the media this week. The producers had researched Durst’s story for a decade, which included three possible murders committed by Durst against his first wife, a friend and the neighbor in Galveston, Texas.

Jarecki did two extended interview sessions with Durst and in the second session he confronted Durst with evidence that indicated Durst possibly wrote a note to police about a body in a Los Angeles home that turned out to be his friend, Susan Berman.

With the interview apparently concluded and the interview crew packing up their equipment, Durst went into a bathroom while still wearing his live microphone and started talking to himself, concluding with the statement, “What the hell did I do? Killed them all, of course.”

Durst now faces charges in California related to Berman’s killing, with the extradition request coming a day before the HBO series ended on Sunday – and possibly as long as three years after the unguarded moment was recorded by producers.

In an interview with the New York Times, Jarecki said the producers found the audio on June 12, 2014. The Times believed the audio was recorded in April 2012, based on information provided by people involved with the series. Smerling also told the Times that the first Durst interview took place in November 2010 and the second happened about two years later. But in a later interview with CBS News, Jarecki said the audio was found “many months” after it was recorded.

Now, legal commentators are looking at several constitutional issues related to how the audio was obtained.

The biggest question is related to Durst’s Fourth Amendment rights and his expectation of privacy when he entered the bathroom wearing the live microphone.

Ashby Jones from The Wall Street Journal framed the basic argument related to this situation.

“It’s hard to answer definitively whether Mr. Durst’s rights were violated, without knowing more of the facts,” Jones said. “But the Fourth Amendment, which bans ‘unreasonable searches and seizures’ probably isn’t in play because the government likely isn’t involved. Unless Mr. Durst and his lawyers can show that the government was somehow actually behind or involved in the film, something one legal observer called ‘possible, but not likely,’ the utterance would likely not be excluded by Fourth Amendment concerns.”

But one possible issue would be how Durst gave his consent to be interviewed by the producers and if the recording violated the 1968 Wire Tap Act.

“The question is whether [Mr. Durst] gave prior consent to interception of everything the wireless mic picked up while he was wearing it, or whether he consented to interception of only the part” in the room with the filmmakers,” one former assistant U.S. attorney told Jones.

Jarecki told the Times that Durst had signed a release form agreeing "that we could use any recording of him in any way we deemed appropriate.”

Daniel C. Richman, a law professor at Columbia University. told BuzzFeed News that the recording was likely to be used in court.

“While California’s interception laws are more demanding than those in many other states, the consent of the … sole participant to the ‘conversation’ is enough,” Richman said, adding that Durst’s knowledge that he was wearing a microphone “likely counts as a consent.”

However, there are some problems that could crop up when Durst goes to trial in California, since the delay between the audio recording and its discovery raises chain of custody problems.

There is also a potential issue with the producers’ timing of notifying police about their investigation. The Times reported the producers contacted law enforcement in early 2013, which would be after the audio was recorded.

If true, that would avert a Fourth Amendment issue with producers recording Durst with the knowledge of police, and being perceived as acting as an agent of law enforcement.

Harvard’s Noah Feldman sees significant potential problems for the prosecution outside of the Fourth Amendment question.

“Even if all these legal principles for admissibility are satisfied, the trial judge still must decide whether the evidence to be admitted is more probative than prejudicial. In other words, the judge will ask whether the jury would be more likely to glean useful information from the statement that would help prove guilt or innocence, or more likely to form an irrational prejudice the basis of the evidence.” Feldman says.

“In this case, an intelligent judge would certainly conclude that Durst's statement would create irreversible prejudice in the mind of the jury -- without a reliable basis for proving the truth.”

Feldman also points out a contextual problem.

“He could be asking himself rhetorically what everyone thinks he's done -- and answering the question by saying that the producers, and the public, assume that "of course" he killed the victims. He could be musing on what he might say to the camera. He could be fantasizing. The possibilities are endless -- and almost all are different from an actual admission,” he says.

For now, the speculation will continue as details emerge about the producers’ timeline of events, and what evidence prosecutors will use against Durst in California.

Police in Los Angeles said Durst’s arrest wasn’t related to the HBO series.

“We based our actions on the investigation and the evidence,” LAPD Deputy Chief Kirk Albanese said earlier this week. “We didn’t base anything we did on the HBO series. The arrest was made as a result of the investigative efforts and at a time that we believe it was needed.”

But an anonymous source told the Los Angeles Times that the documentary played a role in Durst’s arrest.

Scott Bomboy is the editor in chief of the National Constitution Center.