The search of defendant’s prison cell seizing his legal materials without judicial approval violated his Sixth Amendment rights, not his Fourth Amendment rights. The lead prosecutor in his case reviewed the legal materials. The state should have used a taint team to protect the materials from the prosecutor in the case. The extraordinary remedy of dismissal of the indictment is required. State v. Robinson, 2018 Del. Super. LEXIS 185 (May 1, 2018):
Moreover, the Court notes that even if the State had sought judicial approval, it would have been denied. By the State’s own admission, it did not have “substantiated” concerns that a protective order was violated. The Court’s inquiry would have revealed that there was no basis to intrude on the attorney-client privilege because no witness names had been produced by the State, Defense Counsel had permission to share the “content” of witness statements with her client, and the record evidence would have demonstrated that Defense Counsel had steadfastly refused to provide information to her client that would have violated the TMG Protective Order. As a result, the State would not have been able to make the necessary prima facie case to justify excepting Defendant’s attorney-client communications from the attorney-client privilege.
. . .
III. THE STATE’S VIOLATION OF DEFENDANT’S SIXTH AMENDMENT RIGHTS REQUIRES DISMISSAL OF THE INDICTMENT.
As will be discussed, this Court finds that the State’s actions violated Defendant’s Sixth Amendment rights. In addition, the Court finds that the State’s conduct falls short of the Court’s expectations for Delaware prosecutors. Dismissal is the only remedy that can adequately address the substantial prejudice suffered by Defendant and ensure that the State will not violate the rights of criminal defendants in the future.