W.D.Va.: If SW includes marital privileged material, that’s for filter team, not motion to quash

The search warrant target moved to quash based on marital privilege. Under federal law, the privilege is based on common law and presumed. The affidavit for the search warrant, however, shows probable cause for witness tampering. Resolution of the marital privilege is deferred to the filter team, but the warrant won’t be quashed. In re Info. Associated with “staceypomrenke@gmail.com” at Google, Inc., 2016 U.S. Dist. LEXIS 80881 (W.D. Va. June 21, 2016):

At the June 7 hearing, the Government admitted that it was investigating both Mrs. and Mr. Pomrenke for witness tampering. In issuing the Search Warrant, the court found that the Government had shown probable cause that Mrs. Pomrenke had violated 18 U.S.C. §§ 401 and 1512. I find that the evidence provided with the Government’s response to the Motion, if contained in a sworn pleading, would establish probable cause that Mr. Pomrenke, too, had engaged in witness tampering and/or obstruction of justice. I further find that this evidence would be more than sufficient to meet the prima facie showing required to apply the crime-fraud exception to information protected by the attorney-client or the psychotherapist-patient privilege. The court can think of no reason that the standard for applying a similar exception to the marital communications privilege should be any higher, at this stage of the proceedings. Also, the court holds that use of this standard strikes the proper balance between protecting marital communications yet ensuring the Government may fully investigate alleged criminal activity. It also prevents the parties from litigating suppression issues, which may or may not be relevant at trial if charges are brought, at the investigation stage. See In re Grand Jury Investigation, 431 F. Supp. 2d 584, 589 (E.D. Va. 2006).

To protect the marital communications privilege, I will order that the filter team also must review all email communications between Mrs. and Mr. Pomrenke contained in the records disclosed to determine whether they were made in confidence or whether they should be disclosed pursuant to the joint criminal participation exception. Any of these communications which were not made in confidence, or which would be subject to seizure under the Search Warrant as evidence of the crimes of obstruction of justice and/or witness tampering, may be disclosed to the prosecution team.