LA5: Defense attorney’s email about evidence on phone not protected by attorney-client privilege

A defense attorney’s email about evidence on a cell phone was used to get authority to search and seize the phone. Defendant claimed privilege; the state claimed that defense counsel was obligated to turn over material evidence. It was not privileged information. State v. Landon, 2024 La. App. LEXIS 1953, 2024 WL 4835521 (La. App. 5 Cir Nov. 19, 2024):

While a hallowed pillar of our legal system, the attorney-client privilege is not absolute. The privilege does not encompass an attorney’s retention of physical evidence which is reasonably believed to be material to the investigation of a crime. Green, 493 So.2d 1178; See also, Taylor, 502 So.2d 537. This exception is founded upon a lawyer’s superseding duties under ethical rules governing attorney conduct, which do not permit use of the attorney-client privilege to hinder the administration of justice. Green, 493 So.2d 1178.

In the case before us, Bonin was presented with information originating from defendant concerning the existence of a phone containing evidence connected to the crime under investigation and its location. He was not given possession of defendant’s phone.1Link to the text of the note While the email itself was not physical evidence of the crime under investigation, it contained information which is not protected by the attorney-client privilege under Taylor and Green.

On de novo review, for the reasons set forth herein, we find the information contained in the email concerning the iPhone’s existence and location is not protected by the attorney-client privilege. Accordingly, we find the trial court did not abuse its discretion by denying defendant’s motion to suppress evidence obtained through a search warrant for 35 OK Street, Harahan, Louisiana and a search warrant for a red iPhone recovered from that location.

Accordingly, this writ application is denied.

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