CT: Dismissal not appropriate remedy here for violation of A-C privilege in execution of SW

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.

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