[PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                                No. 12-13871
                          ________________________

                 D.C. Docket No. 3:09-cv-01208-TJC-MCR

ANNE MARIE GENNUSA,
JOEL STUDIVANT,

                                                 Plaintiffs – Appellees
                                                 Cross Appellants,

                                    versus

BRIAN CANOVA, individually,
THOMAS MARMO, individually,

                                                 Defendants – Appellants
                                                 Cross Appellees.

                         __________________________

                Appeals from the United States District Court
                     for the Middle District of Florida
                      _________________________

                               (April 8, 2014)

Before JORDAN, COX, and DUBINA, Circuit Judges.

JORDAN, Circuit Judge:
       While investigating an alleged misdemeanor violation of a domestic

violence injunction, Detective Thomas Marmo and Sergeant Brian Canova

monitored, intercepted, and listened to privileged conversations between their

suspect, Joel Studivant, and his attorney, Anne Marie Gennusa, who were in an

interview room at the St. Johns County Sheriff’s Office. They did so without any

notice to Mr. Studivant and Ms. Gennusa, and without a warrant. Det. Marmo also

seized from Ms. Gennusa, on Sgt. Canova’s order, a statement written by Mr.

Studivant. This too was done without a warrant.

       In a thorough and well-reasoned summary judgment order, see Gennusa v.

Shoar, 

(M.D. Fla. 2012), the district court ruled that the

surreptitious electronic eavesdropping violated the Fourth Amendment and the

Federal Wiretap Act, 18 U.S.C. § 2510 et seq., and that the seizure of Mr.

Studivant’s written statement contravened the Fourth Amendment. The district

court further concluded that Det. Marmo and Sgt. Canova were not protected by

qualified immunity. Det. Marmo and Sgt. Canova appeal, asserting that they are

entitled to qualified immunity on the Fourth Amendment claims. 1

       After review of the record, and with the benefit of oral argument, we affirm.

First, it has long been clearly established that the warrantless interception of
       1
         Det. Marmo and Sgt. Canova do not address the Federal Wiretap Act in their brief, even
though a claim for intentional interception of an oral communication under the Act, 18 U.S.C. §§
2510(2) & 2511(a)(1), requires a showing that the plaintiff had a subjective expectation of
privacy “that society is willing to recognize as reasonable.” United States v. McKinnon, 

, 527-28 (11th Cir. 1983). We therefore do not address the claims under the Act.
                                               2
private conversations – like the privileged ones here – offends the Fourth

Amendment. Second, Det. Marmo and Sgt. Canova did not properly assert in the

district court that the seizure of Mr. Studivant’s statement was permitted by the

exigent circumstances exception to the Fourth Amendment’s general warrant

requirement.

                                         I

      We conduct plenary review of the district court’s grant of summary

judgment, viewing the facts in the light most favorable to the non-moving parties.

Summary judgment is appropriate if there are no genuine issues of material fact

and a party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a);

Bradley v. Franklin Collection Serv., Inc., 

, 608 (11th Cir. 2014). As

the district court noted, see 

, the relevant

facts, which we set out below, are undisputed.

      In the summer of 2009, Det. Marmo was investigating Mr. Studivant’s

possible misdemeanor violation of a domestic violence injunction. On June 8,

2009, in the course of that investigation, Det. Marmo conducted a non-custodial

interview of Mr. Studivant at the St. Johns County Sheriff’s Office. Ms. Gennusa

was present during the interview as Mr. Studivant’s attorney. The interview was

conducted in an interview room at the Sheriff’s Office that was 10 feet by 10 feet,

contained a table, and had a small window on the door.

                                         3
      Unbeknownst to Mr. Studivant or Ms. Gennusa, all that took place in the

interview room – including their privileged attorney-client conversations – was

being recorded and actively monitored by members of the Sheriff’s Office

(including Det. Marmo and Sgt. Canova) through a concealed camera in the room.

The camera was not obviously recognizable, no signs warned visitors of the

possibility of electronic surveillance, and Mr. Studivant and Ms. Gennusa were not

told that they were being recorded or monitored. See 

n.1.

      When the interview began, Mr. Studivant agreed to prepare a sworn written

statement. As Mr. Studivant began writing his statement, Det. Marmo left the

interview room and closed the door. While they were alone in the room, Mr.

Studivant and Ms. Gennusa discussed matters related to the investigation.

      Ms. Gennusa then left the interview room and met with Det. Marmo in his

office. When she returned to the interview room, Ms. Gennusa closed the door and

informed Mr. Studivant that Det. Marmo was going to arrest him. Following a

discussion with Ms. Gennusa, Mr. Studivant decided he no longer wanted to give

Det. Marmo a written statement.

      Det. Marmo came back to the interview room and demanded Mr. Studivant’s

written statement. After a somewhat heated discussion, Mr. Studivant and Ms.

Gennusa refused to turn over the statement. Det. Marmo left the room again and

went to see his supervisor, Sgt. Canova. During their conversation, Det. Marmo

                                         4
and Sgt. Canova actively monitored Mr. Studivant and Ms. Gennusa in the

interview room, and saw Ms. Gennusa place the written statement on the table.

Sgt. Canova instructed Det. Marmo to return to the interview room and retrieve the

statement.

       As he came back into the room, Det. Marmo forcibly grabbed the statement

from underneath Ms. Gennusa’s hand. He then arrested Mr. Studivant for violation

of the domestic violence injunction, and later attached the written statement to his

arrest report.     Mr. Studivant ultimately entered into a deferred prosecution

agreement, and the criminal charge against him was dismissed.

       Mr. Studivant and Ms. Gennusa filed suit in federal district court against

Det. Marmo and Sgt. Canova in their individual capacities. They asserted claims

under 42 U.S.C. § 1983 for violations of the Fourth Amendment (based on the

warrantless recording of their privileged conversations and the seizure of the

written statement), and under 18 U.S.C. § 2520(a) for violations of the Federal

Wiretap Act (based on the warrantless recording). 2

                                                II

       “The doctrine of qualified immunity protects government officials from

liability for civil damages insofar as their conduct does not violate clearly


       2
          Mr. Studivant and Ms. Gennusa also sued St. Johns County Sheriff David Shoar, but the
district court’s rulings on the official capacity claims against Sheriff Shoar are not before us in
this appeal.
                                                5
established statutory or constitutional rights of which a reasonable person would

have known.     Qualified immunity gives government officials breathing room to

make reasonable but mistaken judgments, and protects all but the plainly

incompetent or those who knowingly violate the law.” Stanton v. Sims, 

, 4-5 (2013) (internal citations and quotation marks omitted).

      Because it is undisputed that Det. Marmo and Sgt. Canova were acting

within the scope of their discretionary authority, Mr. Studivant and Ms. Gennusa

bear the burden of establishing that qualified immunity is not appropriate. See Lee

v. Ferraro, 

, 1194 (11th Cir. 2002). To satisfy this burden, they

must show two things – first, that Det. Marmo and Sgt. Canova violated the Fourth

Amendment, and second, that at the time of the incidents in question it was clearly

established that the challenged conduct was unconstitutional.           See, e.g.,

McCullough v. Antolini, 

, 1205 (11th Cir. 2009).

                                        III

      We begin with the warrantless monitoring and recording of the attorney-

client conversations of Mr. Studivant and Ms. Gennusa. The district court held

that Det. Marmo and Sgt. Canova violated the Fourth Amendment because Mr.

Studivant and Ms. Gennusa had a “subjective expectation[ ] that their

conversations were private” and because this expectation, given the confidential

attorney-client nature of the conversations, was “objectively reasonable.” See

                                         6


. The district court also denied qualified

immunity to Det. Marmo and Sgt. Canova. Acknowledging that there was “no

case precisely on point,” the district court explained that since the late 1960s “it

has been clearly established that the Fourth Amendment prohibits the police from

electronically intercepting communications without a warrant when the speakers

have a reasonable expectation of privacy.” See 

       On appeal, Det. Marmo and Sgt. Canova challenge the district court’s

qualified immunity ruling on two grounds. They argue that neither Mr. Studivant

nor Ms. Gennusa had a reasonable expectation that their attorney-client

conversations in the interview room would be private, and that, as a result, there

was no constitutional violation. See Br. for Appellants at 15-16. They also

contend that it was not obvious to a reasonable officer in June of 2009 that

monitoring and recording those conversations without a warrant violated the

Fourth Amendment. See 

As we explain, neither argument carries the

day.

                                         A

       The Fourth Amendment, as applied to the states by way of the Fourteenth

Amendment, see Mapp v. Ohio, 

, 646-47 (1961), protects “[t]he right

of the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.” U.S. Const. amend. IV. For our purposes, a

                                         7
Fourth Amendment search occurs “when the government violates a subjective

expectation of privacy that society recognizes as reasonable.” Kyllo v. United

States, 

, 33 (2001).

      Almost 50 years ago, the Supreme Court held that a “‘conversation [is]

within the Fourth Amendment’s protections,” and that “the use of electronic

devices to capture it [is] a ‘search’ within the meaning of the Amendment.” See

Berger v. New York, 

, 51 (1967) (invalidating a New York statute that

authorized the electronic interception of private conversations by the police

(through recording devices installed in various offices) pursuant to a court order,

on the ground that the procedures for obtaining the order were insufficient to

comply with the Warrants Clause of the Fourth Amendment). In a number of cases

following Berger, the Supreme Court similarly ruled that the warrantless electronic

interception of private conversations by the government violates the Fourth

Amendment. See Katz v. United States, 

, 353-59 (1967) (warrantless

interception of conversation conducted from public phone booth in case involving

use of wires to make bets or wagers); United States v. U.S. Dist. Court for the E.

Dist. of Mich., 

, 318-21 (1972) (warrantless interception of calls in

case involving domestic threat to national security – a plot to bomb the office of

the Central Intelligence Agency); Mitchell v. Forsyth, 

, 531-34 (1985)

(warrantless wiretap of anti-war group which had made plans to blow up heating

                                        8
tunnels connecting office buildings in Washington, D.C.). Mitchell, while granting

qualified immunity to the Attorney General because the warrantless wiretapping at

issue there had been authorized prior to Katz, explained that Katz “held that no

recognized exception to [the Fourth Amendment’s] warrant requirement could

justify warrantless wiretapping in an ordinary criminal case.” 

. These cases stand for the now-unremarkable proposition that, because society

recognizes as reasonable an expectation of privacy for confidential conversations

between individuals, the government needs a warrant to intercept or record such

conversations.3

       The only question, then, is whether the subjective expectation of privacy

held by Mr. Studivant and Ms. Gennusa about their privileged attorney-client

conversations is one that society recognizes as reasonable, and we easily conclude

that it is. An expectation of privacy is deemed reasonable, the Supreme Court has

said, if it “has a source outside of the Fourth Amendment, either by reference to

concepts of real or personal property or to understandings that are recognized and

permitted by society.” Rakas v. Illinois, 

, 143 n.12 (1978). See also

Minnesota v. Carter, 

, 88 (1998) (same). Mr. Studivant and Ms.

Gennusa have pointed to such a source: the attorney-client privilege, which is the


       3
          A warrant is not needed if one of the parties to the conversation consents to the
interception or recording. See, e.g., United States v. Caceres, 

, 744 (1979). Here,
however, there was no consent.
                                              9
“oldest of the privileges for confidential communications known to the common

law.” Upjohn Co. v. United States, 

, 389 (1981) (citation omitted).

See Hunt v. Blackburn, 

, 470 (1888) (explaining that the attorney-

client privilege “is founded upon the necessity, in the interest and administration of

justice, of the aid of persons having knowledge of the law and skilled in its

practice, which assistance can only be safely and readily availed of when free from

the consequences or the apprehension of disclosure”). Given that the intercepted

conversations had to do with the ongoing criminal investigation of Mr. Studivant

by Det. Marmo, they fell squarely within the attorney-client privilege. See Upjohn

. Cf. United States v. Ofhse, 

, 1511, 1516 n.6

(11th Cir. 1987) (characterizing as “reprehensible” the government’s use of a

defense attorney as an informant against his indicted client, and the placement of a

body bug on the attorney “to conduct . . . electronic surveillance of the

conversations” between he and his client).

      The Supreme Court has also held that whether an expectation of privacy is

“‘legitimate’ or ‘reasonable’ necessarily entails a balancing of interests.” See

Hudson v. Palmer, 

, 527 (1984) (holding that an inmate has no

reasonable expectation of privacy in his prison cell). Under this formulation, we

come to the same conclusion. Here the competing interests are the interest of

society in monitoring attorney-client conversations in a non-custodial setting at a

                                         10
sheriff’s office and the interest of the attorney and client in keeping their privileged

conversations in such a setting private. Given these interests, we readily strike the

balance in favor of privacy. The government has no weighty law-enforcement,

security, or penological interest in recording, without a warrant, the attorney-client

conversations of a person who has not been arrested, even if those conversations

take place in an interview room at a sheriff’s office. On the other hand, the need

for privacy is very strong when a person who is not under arrest or otherwise in

custody is speaking to his attorney on privileged matters, even within the confines

of an interview room at a sheriff’s office. “One threat to effective assistance of

counsel posed by government interception of attorney-client communications lies

in the inhibition of free exchanges between defendant and counsel because of the

fear of being overheard.” Weatherford v. Bursey, 

, 554 n.4 (1977).

So, even if the Hudson balancing test applies, Mr. Studivant and Ms. Gennusa had

an objectively reasonable expectation of privacy when they discussed privileged

matters in the interview room.

      In an effort to demonstrate that Mr. Studivant and Ms. Gennusa did not have

an objectively reasonable expectation of privacy, Det. Marmo and Sgt. Canova

point to a number of cases involving the recording of certain conversations at

police stations. These cases, however, are distinguishable because they involved

individuals who had been arrested, were in police custody, and/or had some

                                          11
indication that they were being monitored. See United States v. Delibro, No. 09-

11995, 

, 347 Fed. App’x 474, 475 (11th Cir. Sept. 25, 2009)

(arrestee and his mother did not have a reasonable expectation of privacy in an

actively-monitored police interview room, as arrestee was “well aware” that police

could be monitoring his conversations, and as a result there was no basis to

suppress conversations between them that the police had recorded without a

warrant); Johnson v. State, 

, 370 (Fla. Dist. Ct. App. 1999) (police

did not violate the Fourth Amendment by recording, without a warrant,

conversations between a husband, who had been arrested, and his wife in an

interview room at a police station because no reasonable expectation of privacy

existed and wife admitted that she did not know if they were being surveilled or

recorded); Deegan v. Rudman, Civil Action No. 3:10-cv-00016, 

,

at *3-*4 (W.D. Va. Jan. 26, 2011) (arrestee did not have a reasonable expectation

of privacy in an interrogation room at a police station, where video and audio

monitoring was “routine,” and therefore police did not violate the Fourth

Amendment by recording his side of a conversation with his attorney on an

officer’s cell phone).

      The status of the persons being recorded matters because, as the Supreme

Court has said on various occasions, “the expectations of privacy of an individual

taken into police custody ‘necessarily [are] of a diminished scope.’” Maryland v.

                                       12
King, 

, 1978 (2013) (citation omitted). Unlike the individuals in

Delibro, Johnson, and Deegan, Mr. Studivant was not under arrest at the time of

his privileged conversations with Ms. Gennusa, and his interview with Det. Marmo

was non-custodial. And, unlike certain of the individuals in those cases, who had

some indication that they were being surveilled and monitored, Mr. Studivant and

Ms. Gennusa had no idea that Det. Marmo, Sgt. Canova, and other members of the

St. Johns Sheriff’s Office were eavesdropping on them. Indeed, as the district

court put it, they were “given no indication of this fact.” See Gennusa, 879 F.

Supp. 2d at 1341 & n.1. Cf. United States v. Duncan, 

, 852 (4th Cir.

1979) (holding, in criminal prosecution under the Federal Wiretap Act, that IRS

agents conducting an audit at a bank had a reasonable expectation of privacy in an

office assigned to them by the bank, and distinguishing cases holding that

“statements made by a prisoner in police custody may not be considered justifiably

private”: “The significant fact in the cases involving statements uttered while in

police custody is not the hostility between officer and suspect; it is the fact that the

speaker was in police custody. Those cases simply announce a societal decision

that one may not reasonably expect his utterances to be private while he is held in

police custody for violation of the law.”). 4


       4
         A number of published cases rejecting the Fourth Amendment claims of inmates or
detainees whose prison/jail calls were recorded are based on the rationale that the institution in
question provided sufficient notice or warning that all calls would be recorded and that, as a
                                               13
       In sum, Mr. Studivant and Ms. Gennusa had a reasonable expectation of

privacy for their privileged attorney-client conversations in the interview room of

the St. Johns County Sheriff’s Office. The surreptitious recording and monitoring

of those attorney-client conversations, without notice to Mr. Studivant or Ms.

Gennusa, and without a warrant, violated the Fourth Amendment. 5

                                                 B

       We next address whether, in June of 2009, it was clearly established that the

Fourth Amendment prohibited the warrantless recording of attorney-client

conversations between a non-incarcerated suspect and his attorney under the

circumstances presented here. Like the district court, see Gennusa, 

at 1349-50, we answer that question in the affirmative.


result, the inmates or detainees were deemed to have consented to the recordings. See, e.g.,
United States v. Novak, 

, 101-03 (1st Cir. 2008); United States v. Lucas, 

, 780 (8th Cir. 2007) (en banc); United States v. Friedman, 

, 123 (2d Cir. 2002);
Jackson v. State, 

, 1030 (Fla. 2009). This rationale does not apply here, as Mr.
Studivant and Ms. Gennusa were not given any notice or indication that their privileged
conversations would be monitored and recorded. Cf. United States v. Noriega, 

,
1551 (11th Cir. 1990) (“[If] Noriega did sign a valid release evidencing his understanding that all
of his telephone conversations, including those with members of his defense team, would be
recorded[,]. . . it is conceivable that the District Court could find that Noriega’s attorney-client
privilege would not prohibit the government’s recording of Noriega’s telephone conversations
with his defense attorneys because he had no reasonable expectation of privacy.”).
       5
          Cf. Lanza v. New York, 

, 143-44 (1962) (plurality opinion) (noting in dicta
that “it may be assumed that even in a jail, or perhaps especially there, the relationships which
the law has endowed with particularized confidentiality must continue to receive unceasing
protection”); United States v. Harrelson, 

, 1169-70 (5th Cir. 1985) (holding that
arrestee and his wife did not have a reasonable expectation of privacy as to their conversations at
a county jail, but nonetheless noting in dicta: “Nor would our observations here translate directly
to attorney-client visitations, where the parties have a right to assured confidentiality and are, in
the normal case, entitled to assume – and if necessary to demand – it.”).
                                                 14
      We do not always “require a case directly on point before concluding that

the law is clearly established, but existing precedent must have placed the statutory

or constitutional question beyond debate.” 

. In other

words, a “constitutional rule already identified in the decisional law may apply

with obvious clarity to the specific conduct in question, even though the very

action in question has [not] previously been held unlawful.” Hope v. Pelzer, 

, 741 (2002). See also Coffin v. Brandau, 

, 1014-15 (11th

Cir. 2011) (en banc) (“To find that a broad principle of law clearly establishes the

law as to a specific set of facts, it must do so with obvious clarity to the point that

every objectively reasonable government official facing the circumstances would

know that the official’s conduct did violate federal law when the official acted.”)

(internal quotation marks and citation omitted). In the end, the “touchstone is

whether the right would be apparent to a reasonable officer.” Gilmore v. Hodges,

, 277 (11th Cir. 2013).

      It has long been clear that the electronic interception of oral conversations

constitutes a search under the Fourth Amendment. See 

. It

has also long been clear that in ordinary criminal cases the warrantless interception

of private phone calls violates the Fourth Amendment because it infringes the

reasonable expectation of privacy of the conversants. See 

-

59. And, finally, it has long been clear that even in sensitive cases involving

                                          15
domestic threats to national security law enforcement officials need a warrant

before electronically intercepting private communications. See U.S. Dist. 

; 

-34. The cases establishing these

principles – Berger, Katz, U.S. District Court, and Mitchell – and their reasoning,

see 

, made it obvious and apparent to any reasonable law

enforcement official in June of 2009 that the Fourth Amendment requires that a

warrant be secured before non-custodial privileged communications between

attorneys and their clients – communications which are normally entitled to be kept

confidential as a matter of law – can be electronically monitored, intercepted, or

recorded.

      That the attorney-client conversations here took place inside an interview

room at a sheriff’s office does not mean that Det. Marmo and Sgt. Canova lacked

clear notice that their warrantless electronic surveillance was illegal.     As the

Supreme Court has explained, “[o]fficials can still be on notice that their conduct

violates established law even in novel factual circumstances,” as long as the “state

of the law [at the relevant time] gave [them] fair notice that their [actions] w[ere]

unconstitutional,” 

, and that is the case here. Although

locale can matter, see, e.g., 

(holding that a suspect

does not have a reasonable expectation of privacy in the back seat of a police car),

it is not dispositive. We held more than 20 years ago that the “location of the

                                         16
conversations that [are] intercepted is not determinative; the proper inquiry is

whether the government’s activities in electronically listening to and recording the

conversations violated privacy upon which [the participants] justifiably relied.”

United States v. Shields, 

, 1158 (11th Cir. 1982).               Here Mr.

Studivant had not been arrested, and his liberty had not been curtailed in any way.

His status therefore did not result in a diminished expectation of privacy.

      Stated differently, the “fact that the [monitoring and recording] took place in

the context of [an interview room at a sheriff’s office] does not materially

distinguish this case from [Supreme Court] precedent [on electronic surveillance of

private conversations].” Skrtich v. Thornton, 

, 1304 (11th Cir. 2002)

(excessive force claim in prison setting). See also O’Rourke v. Hayes, 

, 1208 (11th Cir. 2004) (warrantless search of home: “[E]ven if a factually

similar case did not exist, [the warrantless search] would still have violated rights

that are clearly established under . . . general statements of principle.”). The district

court therefore correctly held that Det. Marmo and Sgt. Canova were not entitled to

qualified immunity for their warrantless monitoring and recording of the privileged

attorney-client conversations between Mr. Studivant and Ms. Gennusa.

                                           IV

      We now turn to the Fourth Amendment seizure claim. Det. Marmo and Sgt.

Canova argue that the warrantless seizure of Mr. Studivant’s written statement was

                                           17
constitutional because there were exigent circumstances, i.e., the threat of

destruction of evidence. See Br. for Appellants at 20-22. They also maintain that

Ms. Gennusa was not seized (because Detecive Marmo never touched her), and

that, in any event, they are protected by qualified immunity. See 

      In relevant part, the Fourth Amendment protects the “right of the people to

be secure in their “papers[ ] and effects[ ] against unreasonable searches and

seizures.” U.S. Const. amend. IV. After Ms. Gennusa refused to give Mr.

Studivant’s written statement to him, Det. Marmo returned to the interview room

and forcibly took the statement from underneath Ms. Gennusa’s hand.               This

constituted a seizure of the statement for purposes of the Fourth Amendment, as

Det. Marmo “meaningful[ly] interfere[d] with [the] possessory interests [of Mr.

Studivant and Ms. Gennusa] in [an item] of property.” Sodal v. Cook Cnty., Ill.,

, 61 (1992) (citation and internal quotation marks omitted). It matters

not, therefore, that Ms. Gennusa herself was not physically touched or restrained.

       “[I]n ‘the ordinary case,’ seizures of personal property are ‘unreasonable

within the meaning of the Fourth Amendment,’ without more, ‘unless . . .

accomplished pursuant to a judicial warrant,’ issued by a neutral magistrate after

finding probable cause.” Illinois v. McArthur, 

, 330 (2001) (quoting

United States v. Place, 

, 701 (1983)). There are, of course, certain

limited exceptions to the Fourth Amendment’s warrant requirement. One of those

                                         18
is exigent circumstances, which can exist when there is a “need to prevent the

imminent destruction of evidence.” Brigham City v. Stuart, 

, 403

(2006). To determine whether a police officer “faced an emergency that justified

acting without a warrant,” a court “looks to the totality of circumstances.”

Missouri v. McNeely, 

, 1559 (2013).

      Det. Marmo and Sgt. Canova, as the government actors responsible for the

warrantless seizure, “ha[d] the burden of proof of showing exigent circumstances.”

United States v. Tovar-Rico, 

, 1535 (11th Cir. 1995). According to

the district court, however, Det. Marmo and Sgt. Canova “d[id] not argue that any

exceptions to the warrant requirement appl[ied],” and it therefore found that they

had “conceded that [Det.] Marmo seized [Mr.] Studivant’s property without any

exception to the warrant requirement.” Gennusa, 

at 1344-45.

Det. Marmo and Sgt. Studivant contest this determination, asserting that they

raised exigent circumstances as a justification for the seizure of the statement, see

Br. for Appellants at 20-22, but our review of the record indicates that the district

court was correct. To explain why the district court got it right, we detail the

relevant filings in the case.

      In their second amended complaint, Mr. Studivant and Ms. Gennusa alleged

in Counts II and III that the warrantless seizure of the statement violated their

Fourth Amendment rights. See D.E. 41 at ¶¶ 40-41, 64-66, 70-73.           They also

                                         19
alleged that, in grabbing the statement, Det. Marmo used excessive force in

violation of the Fourth Amendment and broke Ms. Gennusa’s fingernail. See 

67. So, as pled, Counts II and III contained an unreasonable seizure claim (based

on the seizure of the statement) and an excessive force claim (based on the broken

fingernail).

       In their renewed motion for summary judgment, Det. Marmo and Sgt.

Canova explicitly recognized that the second amended complaint pled a distinct

Fourth Amendment unreasonable seizure claim based upon the taking of the

statement without a warrant. See D.E. 44 at 6, 11. 6 When they addressed that

claim on the merits, they argued that the “single instantaneous grab of a piece of

paper [wa]s of no constitutional dimension” because no force (or justified minimal

force) had been used and because any physical contact with Ms. Gennusa was

incidental and accidental. See 

They also argued, in a single sentence,

that Det. Marmo “sought to prevent the arguable destruction of or tampering with

evidence” in violation of Florida law. See 

(citing Florida cases). Finally,

they argued that they were entitled to qualified immunity because there was no

binding precedent (from the Supreme Court, the Eleventh Circuit, or the Florida

Supreme Court) prohibiting a police officer from “grab[bing] evidence plainly

6
       Their understanding was not surprising, for at a hearing before the filing of the second
amended complaint, the district court told the parties that, as it interpreted the first amended
complaint, Mr. Studivant and Ms. Gennusa were alleging that the taking of the statement without
a warrant was per se unreasonable under the Fourth Amendment. See D.E. 39 at 8-9.
                                              20
visible but which is covered in part by the hand of a criminal defense lawyer who

seems determined to decide unilaterally through self-help what information law

enforcement officers can and cannot obtain.” See 

      When they responded to this summary judgment motion, and themselves

moved for summary judgment, Mr. Studivant and Ms. Gennusa argued that the

seizure of the statement without a warrant constituted a seizure that was per se

unreasonable under the Fourth Amendment. They also asserted that “none of the

exceptions to the warrant requirement [were] present.” See D.E. 52 at 10. Det.

Marmo and Sgt. Canova did not file a response/reply memorandum or otherwise

respond to the per se violation argument.

      “[I]f . . . part[ies] hope[ ] to preserve a claim, argument, theory, or defense

on appeal, [they] must first clearly present it to the district court, that is, in such a

way as to afford the district court an opportunity to recognize and rule on it.” In re

Pan Am. World Airways, Inc., 

, 1462 (11th Cir. 1990). See also

Bogle v. McClure, 

, 1355 n.5 (11th Cir. 2003) (concluding that

officials waived a certain qualified immunity argument as a result of a stipulation

they entered into). The single, passing reference to the prevention of the “arguable

destruction of or tampering with evidence” by Det. Marmo and Sgt. Canova in

their renewed summary judgment motion – unaccompanied by any discussion or

elaboration – was insufficient to preserve an exigent circumstances argument.

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First, the reference was devoid of any factual support. Nowhere in their statement

of facts or memorandum of law did Det. Marmo and Sgt. Canova present any

evidentiary support for the purported reason Det. Marmo seized the statement. Nor

did they cite to any evidence suggesting that they reasonably believed that there

was an emergency because Ms. Gennusa – an officer of the court – was going to

destroy the statement or tamper with it before they could secure a warrant.

Second, there was no mention, and certainly no discussion, of the exigent

circumstances standard under the Fourth Amendment. Third, there was no citation

to any federal authorities. Fourth, the two Florida cases cited in the motion did not

deal with exigent circumstances. See McNeil v. State, 

, 961-63 (Fla.

Dist. Ct. App. 1983) (sufficiency of the evidence challenge to conviction for

tampering with evidence); Smigiel v. State, 

, 242-43 (Fla. Dist. Ct.

App. 1983) (challenge, in case involving tampering with evidence, to affidavit

submitted in support of application for search warrant).

      Simply put, the district court was not required to address an exigent

circumstances argument that Det. Marmo and Sgt. Canova failed to properly

articulate. It was not obliged “to distill [a] potential argument that could [have]

be[en] made based upon the materials before it on summary judgment.”

Resolution Trust Corp. v. Dunmar Corp., 

, 599 (11th Cir. 1995). We

note, as well, that the answer of Det. Marmo and Sgt. Canova to the second

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amended complaint did not put the district court on notice that they were relying

on exigent circumstances, for that pleading did not mention exigent circumstances

when it listed qualified immunity as an affirmative defense. See D.E. 43 at 7.

      In any event, assuming that the single, passing reference to Det. Marmo

seeking to “prevent the arguable destruction of or tampering with evidence” was

sufficient to present and preserve an exigent circumstances argument, the qualified

immunity argument defense fails on the merits. As noted, Det. Marmo and Sgt.

Canova did not point to or present any evidence to justify an objectively reasonable

belief that they were facing an emergency justifying a warrantless seizure, and

“[m]ere speculation [about exigent circumstances], without factual support, is not

enough to overcome the warrant requirement.” United States v. Santa, 

, 671 (11th Cir. 2000). There was no explanation, for example, about why Det.

Marmo could not have told Ms. Gennusa to preserve the statement because he was

going to seek a warrant for it. And, because the warrantless seizure of personal

property is unreasonable under the Fourth Amendment unless one of the

exceptions to the warrant requirement applies, see 

,

qualified immunity does not apply. “[Det. Marmo and Sgt. Canova] did not have a

search warrant, and can point to no exigency justifying [the seizure].

Consequently, even if a factually similar case did not exist, [their] actions would




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still have violated rights that are clearly established under these general statements

of principle.” 

.

                                          V

      “The greatest dangers to liberty lurk in insidious encroachment by men of

zeal, well-meaning but without understanding.” Olmstead v. United States, 

, 479 (1928) (Brandeis, J., dissenting). The monitoring and recording of

the privileged attorney-client conversations between Mr. Studivant and Ms.

Gennusa, without notice and without a warrant, violated their clearly established

Fourth Amendment rights. So too, on this record, did the warrantless seizure of

Mr. Studivant’s written statement from Ms. Gennusa. The district court’s grant of

summary judgment in favor of Mr. Studivant and Ms. Gennusa is affirmed, and the

case is remanded for further proceedings.

      AFFIRMED.




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