E.D.Va.: Attorney memorandum could be seized in plain view during search; 5A privilege was waived

In a criminal copyright infringement case, a search warrant issued, and the police seized an attorney memorandum in plain view. The court finds the attorney-client privilege was waived by prior disclosure to others. United States v. Dallmann, 2020 U.S. Dist. LEXIS 233640 (E.D. Va. Dec. 11, 2020):

Applied here, the plain view exception to the warrant requirement clearly allows for the seizure of the attorney memorandum. The scope of the search warrant at issue authorized seizure of “records and information from October 1, 2011 to present” relating to offenses including conspiracy and criminal copyright infringement. Hearing Gov’t Ex. 1, Attachment B, at 1. Although the January 2008 attorney memo is outside the scope of the warrant, it clearly fits within the plain view exception to the warrant requirement. The FBI agents (i) were authorized by a lawful search warrant to be in Defendants’ residence, (ii) were authorized to search the filing cabinet in Defendants’ office and examine all documents within for evidence of criminal copyright infringement, and (iii) were able to identify the incriminating character of the memorandum immediately. Thus, the FBI’s seizure of the attorney memorandum did not violate Defendants’ Fourth Amendment rights.

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