Category Archives: Privileges

E.D.Pa.: Work product privilege in product of a SW is burden of defense

A special master reviewed the product of the search warrant for work product materials. The defendants have the burden of proof on work product, and they didn’t meet it. United States v. Vepuri, 2022 U.S. Dist. LEXIS 151833 (E.D. Pa. … Continue reading

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OK: 5A’s foregone conclusion rule applies to passcodes

The foregone conclusion rule applies to defendant’s Fifth Amendment claim revealing the password to his electronics would incriminate him. Reynolds v. State, 2022 OK CR 14, 2022 Okla. Crim. App. LEXIS 14 (Aug. 4, 2022):

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S.D.Miss.: Taint team after a SW isn’t a judicial function, rejecting Baltimore Law Firm

This district court rejects, as has S.D.N.Y., the Art. III function of filter teams reviewing searches of Baltimore Law Firm. (In re Search Warrant Issued June 13, 2019 (“Baltimore Law Firm”), 942 F.3d 159, 170-71 (4th Cir. 2019)). Too much … Continue reading

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NJ: Court order for cell phone passcodes is a 5A question; 4A inquiry erroneously included

“The State appeals the denial of its motion to compel a cell phone passcode from defendant, C.J.L. The State argues the motion court erred by overlooking critical ownership evidence and misapplying the foregone conclusion doctrine, effectively importing Fourth Amendment principles … Continue reading

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D.S.D.: Ptf stated § 1983 claim that jail phone provider recorded attorney-client calls

Plaintiff stated a § 1983 claim that a jail phone provider recorded attorney calls. Kurtenbach v. Securus Techs., 2022 U.S. Dist. LEXIS 54089 (D.S.D. Mar. 25, 2022). Colorado grants immunity from crimes found as a result of a call about … Continue reading

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CA2: Swearing to arrest warrant at direction of a prosecutor does not confer prosecutorial immunity

“Long-standing precedent makes clear that swearing to an arrest warrant affidavit and executing an arrest are traditional police functions, and performing such functions at the direction of a prosecutor does not transform them into prosecutorial acts protected by absolute immunity.” … Continue reading

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FL4: Prosr’s argument def refused to give password to phone violated 4A

“The trial court erred in denying Appellant’s motion in limine and allowing the State to present evidence and argument referencing Appellant’s refusal to provide his cellphone PIN and his refusal to consent to a warrantless search of his entire cellphone. … Continue reading

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W.D.N.C.: No standing to challenge alleged interception of calls between another person and his lawyer

Plaintiff’s claim that government agents intercepted telephone calls between some other person and his lawyer in violation of the attorney-client privilege fails because he had no standing to complain. Labreche v. Chambers, 2022 U.S. Dist. LEXIS 28163 (W.D.N.C. Feb. 16, … Continue reading

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S.D.Tex.: No 5A protection on phone pass code, and inevitable discovery applies

The foregone conclusion rationale for access to passcodes for cell phones. There was no Fifth Amendment privilege to providing the passcodes. Inevitable discovery applies. United States v. Zhengdong Cheng, 2022 U.S. Dist. LEXIS 6437 (S.D.Tex. Jan. 12, 2022):

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N.D.Ohio: Def’s psychotherapist reported he was viewing CP; 4A does not prohibit using it in SW application

The psychotherapist-patient privilege does not bar use of a report from defendant’s psychotherapist to law enforcement that defendant admitted viewing child pornography. The psychotherapist discussed with others and concluded that a report was necessary. Whatever the privilege for trial, it … Continue reading

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WI: Contempt for failing to provide passcode for search of phone is reversed because it is now moot by SW

The owner of a cell phone was held in contempt for not providing a passcode to his phone so police could search it. They did not yet have a warrant. After defendant was held in contempt, the police obtained a … Continue reading

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IL: The foregone conclusion doctrine applies to providing passcode to search a cell phone

The foregone conclusion doctrine applies to obtaining the passcode to a cell phone to search it. Thus, production of the passcode is non-testimonial for the Fifth Amendment. People v. Sneed, 2021 IL App (4th) 210180, 2021 Ill. App. LEXIS 637 … Continue reading

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OH11: No standing in father’s cell phones even when communicating with defense experts

Defendant is charged with killing his wife. He didn’t have standing to challenge a search warrant for his father’s cell phones where attorney-client privilege in their contents was asserted because the father was communicating with expert witnesses in his case. … Continue reading

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Politico: FBI raid on Project Veritas founder’s home sparks questions about press freedom

Politico: FBI raid on Project Veritas founder’s home sparks questions about press freedom by Josh Gerstein (“The action against James O’Keefe has prompted concern about the Biden administration’s commitment to the First Amendment.”) Is O’Keefe a “journalist” or not? He … Continue reading

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WA: HIPAA violation in seizing medical records by SW required their return

The trial court’s order denying return of patient records taken by search warrant from the petitioner youth services provider failed to comply with HIPAA requirements should have been granted. While the records have been returned and the case is otherwise … Continue reading

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CA9: Use of def’s suppression hearing testimony in penalty phase not unreasonable application of Simmons

The California Supreme Court’s holding that Simmons did not bar using defendant’s suppression hearing testimony in the death penalty phase of his criminal trial (People v. Ochoa, 19 Cal. 4th 353, 79 Cal. Rptr. 2d 408, 966 P.2d 442, 464, … Continue reading

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IN: Privilege against self-incrimination is not self-executing as to cell phone password disclosure

Defendant’s mid-trial motion to suppress a cell phone search was waived: It was not timely, and defendant consented to giving the passcode and gave consent to search it. The privilege against self-incrimination is not self-executing here. Kerner v. State, 2021 … Continue reading

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CA11: Govt filter team for review of seized materials not per se unreasonable; stringent protocol followed

The use of a government filter time to review seized materials implicating the attorney-client privilege is not per se unreasonable. The USMJ ordered compliance with a more stringent protocol than approved in other cases. Injunction denied. In re Sealed Search … Continue reading

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CA7: Destruction or sale of seized property wasn’t unreasonable or a taking

Property lawfully seized by the city is destroyed or sold after a short while if unclaimed. That doesn’t make it an unreasonable seizure or a taking. Conyers v. City of Chicago, 2021 U.S. App. LEXIS 24676 (7th Cir. Aug. 18, … Continue reading

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D.N.M.: Truck inspection stop valid admin search under Burger

The New Mexico regulatory scheme for truck inspections has already been held to satisfy Burger. Stopping defendants’ truck for inspection at an inspection station was reasonable under that standard. On opening the trailer to compare to the bills of lading, … Continue reading

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