NewsNewsChannel 5 InvestigatesThe DA's Deals


Listening devices installed around Nashville DA's office, vendor confirms; DA defends practice

Experts say practice raises questions about whether the DA's Office is violating law it is sworn to enforce
Posted: 1:49 PM, Feb 09, 2023
Updated: 2023-02-09 20:07:21-05
DA Office Security Camera.jpeg

NASHVILLE, Tenn. (WTVF) — District Attorney Glenn Funk's team installed listening devices in areas around the DA's office capable of picking up conversations of employees and visitors who are not warned about the audio monitoring, NewsChannel 5 has learned.

In a written statement, Funk's office did not dispute the findings of a NewsChannel 5 investigation. Instead, they insisted it was a necessary part of office security and that "there is no reasonable expectation of privacy for conversations in public places."

But others point to federal and state wiretapping laws that make it a crime to record conversations of unsuspecting individuals in places where they think they are alone. That raises the possibility that Funk's team could be violating a law they are bound to enforce.

"A person who tries to record something privately, no matter what the motivation is, is violating the law," said veteran Nashville attorney Gary Blackburn, a former federal prosecutor who has litigated cases involving the wiretapping laws.

The past president of the Tennessee Association of Criminal Defense Lawyer (TACDL), Jonathan Cooper, called it a "betrayal of trust."

"It's very common for defense lawyers to go with associates or co-counsel or investigators or sometimes even with clients," Cooper said. "If there is the perception that those conversations that are occurring in the common areas could be monitored, that is going to have a very chilling effect."

This discovery comes after months of complaints from insiders at the Nashville DA's Office about security cameras also capable of secretly picking up conversations of people visiting the office, as well as employees — along with allegations of one official inside the office who routinely listens to such chatter.

Funk's team had refused to produce videos and audio requested by NewsChannel 5 Investigates from their security system that might help answer those questions, citing an exemption in state law that protects disclosure of information related to building security.

But then, a breakthrough: the company that installed the security system confirmed the existence of eavesdropping devices in areas of the downtown office building controlled by the DA's office — cameras equipped with microphones capable of picking up conversations — in the elevator lobbies outside DA offices as well as inside the office's main lobby.

The owner of Southern Contracting, Jim Berryman, explained that it was done at the request of the DA's office.

"We don't put audio on a camera unless they specifically ask for it," Berryman said.

DA Office Security Camera.jpeg
Microphone-equipped security camera outside DA offices

In fact, NewsChannel 5 Investigates obtained invoices where the DA's office ordered two cameras with audio capability and a Network Video Recorder for an "undisclosed location," along with an invoice for a third camera with a built-in microphone.

That third camera was ordered from Southern Contracting just days after the controversial plea bargain of police officer Andrew Delke in the shooting death of Daniel Hambrick.

Berryman told NewsChannel 5 that Funk's team wanted to be able to eavesdrop on protesters who might gather at the DA's office.

One of those cameras, the company confirmed, is on the fourth floor where the Davidson County grand jury meets, meaning conversations of witnesses, defense attorneys, even grand jurors themselves could also be intercepted as they wait for an elevator.

The security company said it only knew about listening devices in areas where its employees installed equipment, that they did not know about the capabilities of others cameras previously placed inside the DA's suite of offices.

In a written statement, Funk's office said: "Security for law enforcement office[s] is imperative."

"The District Attorney’s Office is located in a building open to the public. The law is clear that there is no reasonable expectation of privacy for conversations in public places."

But the former federal prosecutor, Gary Blackburn, noted that both federal and state wiretapping laws make it a crime if a person "intentionally intercepts, endeavors to intercept, or procures any other person to intercept ... any ... oral ... communication."

Blackburn said the key question is: do the people whose conversations are recorded have a reasonable expectation of privacy — for example, if someone steps outside DA offices to make a phone call by the elevators when no one else is around.

Outside Nashville DA offices.jpeg
Fourth floor elevator area outside DA offices

"What we're trying to protect with federal and state wiretap laws is the ability to have a private conversation and where you are is less important than the sense of privacy," Blackburn said.

NewsChannel 5 Investigates followed up, "So if you have a reasonable belief that this conversation is private, then it cannot be recorded?"

"That's correct."

The people who installed the security equipment told NewsChannel 5 that the people who lease space to the DA's Office should have a sticker at the front door warning visitors that their conversations are likely to be monitored — something that, at first glance, we didn't see.

Eventually, after getting down on our knees, we found it at the bottom of a door at the building's entrance where it is not likely to be easily noticed.

Video Surveillance Notice.jpeg
Video surveillance notice outside DA's office

And on floors where DA offices are located, there are signs warning about video surveillance, but no hint that a microphone is capturing every word uttered by visitors and employees in those areas.

NewsChannel 5 Investigates asked Blackburn, "Is it enough to put up a sign saying that video surveillance is in progress?"

"No," he answered, "because video surveillance would not necessarily imply audio surveillance."

Jonathan Cooper, the past president of the defense lawyers association, agreed.

"We go into a lot of places where there are video cameras, we see that all the time."

In addition, inside the Birch criminal court building, NewsChannel 5 Investigates discovered an office where defense attorneys come to review police bodycam video that's also wired for eavesdropping.

We waited for the door to open. Inside, we spotted one of the cameras up in the corner and a sign warning that the premises are "protected by 24-hour audio & video surveillance," that anyone who enters consents to being recorded.

It's not known how long that sign has been there — or why the DA's office feels it needs to listen to defense attorneys as they review evidence.

DA BWC Room.jpeg
Video/audio surveillance notice inside room for defense attorneys to review bodyworn camera vides

Funk's office did not address those concerns in its written statement.

Cooper said that, "as a defense lawyer, I would object to private and potentially privileged discussions being recorded."

In an email follow-up, he explained:

First, there could be attorney-client conversations that are held in that area. Subjecting those conversations to audio recording infringes on the attorney-client relationship, and would necessarily limit effective analysis of body-camera recordings. Second, in situations where the defendant is not present, but associate attorneys, co-counsel, or investigators are present with defense counsel, these audio recordings infringe on the long-recognized attorney work-product doctrine, which protects the disclosure of the ideas and strategies generated by lawyers as they prepare a case.

Of course, the DA will argue that these privileges and protections are “knowingly” waived since the participants are on “notice,” but it’s the absolute chilling effect that is the concern. As a lawyer, I would be forced to prevent any discussion by my client, an associate attorney, co-counsel, or investigator.

As I have said, overall it is a very bad look. This practice sends a message that the highest elected prosecutor in Nashville does not trust the very public he has sworn to serve. If he has a public policy justification for this I would be very interested in hearing it.

NewsChannel 5 sent General Funk several questions, including: How have these recordings been used?

Unfortunately, we did not get an answer to that question.

Do you have information for our investigation? Email us:

Previous stories:

NC5 Investigates: The DA's Deals