Defendant did not show that all the documents seized were attorney-client privileged for purposes of litigation. Some were. However, dismissal is not the appropriate remedy, despite the fact privileged information made it into the media from the arrest warrant materials. Voir dire is suggested. State v. Kosuda-Bigazzi, 2020 Conn. LEXIS 107 (Apr. 8, 2020). Still:
To be sure, some aspects of the search and seizure of the defendant’s documents in the present case give us pause, and there is room for improvement in the training of police officers. No officers should read out loud the contents of potentially privileged documents. Once aware that documents are potentially privileged, officers should take immediate steps to prevent any further invasion of the privilege or prejudice to any individual. The officers executing the second search warrant of the defendant’s home in the present case clearly should have exercised greater caution in handling the privileged and potentially privileged documents that they discovered. However, the pretrial remedial measures promptly taken by the state support a conclusion that the trial court did not abuse its discretion when it concluded that the conduct at issue did not rise to the extreme level of warranting a dismissal of the charges against the defendant, as was the case in Lenarz.
On February 6, 2018, detectives, including Detectives Corey Clabby and Edmund Vayan, arrived at the defendant’s home to execute a search warrant. Clabby testified at the Lenarz hearing that, during their search, they found several locked file cabinets. Before unlocking any of the file cabinets, they waited “several hours” for the second search warrant to arrive. Eventually, the crime scene supervisor, Lieutenant Mark Davison, decided to proceed, and Vayan cut most of the locks to examine the contents of the drawers. Clabby found and took out exhibit B, labeled “CRIMINAL DEFENSE ATTORNEY Oct 2017.” He read through the file in its entirety.
When defense counsel questioned Clabby as to why he read through a file clearly marked for a lawyer, Clabby responded that he could not tell whose file it was. He stated that there were two people living in the home—the defendant and the decedent—and that he did not know who the documents belonged to at the time. He did not recall seeing the defendant’s name or signature on any of the documents, and, thus, he could not verify whether the writings belonged to the defendant. He also testified that, in his experience, contacting an attorney before an arrest would be unusual and that he “had no evidence to support the fact that [the defendant] had contacted the attorney at that time.” After progressing through the file, Clabby began to realize that it was likely that exhibit B did in fact belong to the defendant. He nonetheless continued to read through the entire file.
Clabby also looked through exhibit A, labeled “INCIDENT 2017,” which was located directly behind the “CRIMINAL DEFENSE ATTORNEY” file. The trial court credited Clabby’s testimony that he read out loud from a document located in the incident file but never read out loud from documents located within the criminal defense file. Several other detectives were present when Clabby read from the incident file. Clabby testified that he did not discuss the contents of the files with the other state troopers on the scene. Clabby further testified that, when he realized the gravity of the contents of the criminal defense file, he called Vayan into the room, they discussed the matter, and brought it to the attention of Davison. Clabby testified that he then placed the documents in a banker’s box so that they could be moved to the living room for processing. Vayan corroborated the sequence of events outlined by Clabby, and the trial court credited Vayan’s testimony as well.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)