D.N.M.: Accidental finding of A-C communications in cell phone search was not intentional and did not compromise defendant’s Sixth Amendment right to counsel

Defendant’s Apple cell phone was searched with a warrant, and the contents were shared with defense counsel even before the government completed its own review. It was discovered that there were attorney-client communications on the phone, and the government immediately suspended the review. Defendant’s motion to dismiss for intruding into privileged communications is denied because it was not intentional and didn’t compromise his Sixth Amendment right to counsel. United States v. Diaz, 2024 U.S. Dist. LEXIS 23964 (D.N.M. Feb. 8, 2024):

Because Mr. Diaz has failed to show that the government’s intrusion into his privileged communications was intentional and that it lacked a legitimate purpose, the search warrant does not constitute a per se violation of his Sixth Amendment rights. Accordingly, under Shillinger, to establish a violation of those rights, he must show a realistic possibility of injury to himself or benefit to the government. But Mr. Diaz has made no effort to make this showing, insisting instead that the mere fact that “the government is likely in possession” of privileged communications “create[es] a sufficient showing of prejudice.” Doc. 39 at 5; see also id. (“[T]here is a substantial threat of prejudice as the government is likely in possession of privileged communication contained within the iCloud data.”). This is simply not the law. In the absence of both an intentional intrusion into Mr. Diaz’s attorney-client relationship and a lack of legitimate purpose, the undisputed fact that the search warrant potentially captured privileged communications is not the end of the Sixth Amendment inquiry. Rather, Schilllinger makes clear that, under these circumstances, there can be no Sixth Amendment violation without “proof of a realistic possibility of injury to the defendant or benefit to the State.” 70 F.3d at 1142. Mr. Diaz has not met this burden of proof and thus has not established a violation of his Sixth Amendment rights.

Indeed, the Court would be hard-pressed to find the requisite prejudice here. Mr. Hirsch has represented that his partial review of the data did not reveal any attorney-client or otherwise privileged communication and that, pending resolution of this issue, “no member of the trial team will review the iCloud data.” Doc. 20 at 1. Nor did the DEA analyst disclose to Mr. Hirsch or anyone else the results of his truncated review of those communications. To date, no member of the trial team “has seen a single privileged document.” Johnson, 2016 WL 332042, at *5. Further, a filter team is in place to prevent disclosure of privileged communications to the trial team. The government intends for the filter team to examine whether the data includes any privileged communications, screen any such communications out from the remainder of the data, provide the remaining data to defense counsel for her review, and, only after defense counsel has confirmed that the remaining data does not contain privileged communications, provide the data to the trial team. Accordingly, there is no reason to believe that any “member of the prosecution team has or will use [any privileged] materials in any way.” Id.