{"id":9091,"date":"2013-09-15T08:25:23","date_gmt":"2013-07-20T10:22:07","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2013-07-20T10:22:07","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=9091","title":{"rendered":"MA: Post-indictment SW for e-mails valid, but taint team required to protect A-C privilege"},"content":{"rendered":"

The defendant medical practice was indicted for alleged fraud. After the indictment, the state got a search warrant for the principals\u2019 Gmail accounts, obtaining 80,000 emails for a four year period. The issuing magistrate was not told defendants were already indicted, which also meant that some of the emails may have been attorney-client privileged. The state argued that new potential offenses were under investigation, and the warrant was not being used to further investigate the original case. First, a search warrant can be used post-indictment. [And isn\u2019t that more protection than a mere subpoena for records?] Second, a search warrant for e-mail of a defendant under indictment requires a taint team to protect attorney-client confidences. Preventive Med. Assocs. v. Commonwealth<\/a>, 465 Mass. 810, 992 N.E.2d 257 (2013):<\/p>\n

<\/p>\n

a. Postindictment seizure of e-mails by means of an ex parte search warrant. Under G. L. c. 276, \u00a7 1, a court or judge may issue a search warrant to search for “property” — defined to include, inter alia, “records” that there is probable cause to believe are associated with the commission of a crime. …<\/p>\n

. . .<\/p>\n

The defendants read the rule 17 (a) (2) procedure of obtaining prior access to subpoenaed records as coming into play only after the return of an indictment, at which point it becomes the exclusive means of seeking third-party records. The defendants are incorrect. Rule 17 may apply even before the return of an indictment; as noted, the rule authorizes the issuance of a subpoena to a third party to produce records before the grand jury. See Commonwealth v. Odgren, 455 Mass. at 180-181, and sources cited. See also United States v. R. Enters., Inc., 498 U.S. 292, 299, 111 S. Ct. 722, 112 L. Ed. 2d 795 (1991) (“the focus of our inquiry is the limit imposed on a grand jury by Federal Rule of Criminal Procedure 17[c], which governs the issuance of subpoenas duces tecum in federal criminal proceedings”); 2 C.A. Wright & P.J. Henning, Federal Practice & Procedure \u00a7 272, at 242-243 (4th ed. 2009). It seems clear, and the defendants do not suggest otherwise, that rule 17 does not preclude the use of search warrants while a grand jury investigation is pending. See, e.g., United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1175 (9th Cir. 2010) (considering preindictment grand jury investigation by government: “It isn’t per se unreasonable to conduct an investigation using both search warrants and subpoenas [issued pursuant to Fed. R. Crim. P. 17]”); 3 W.R. LaFave, J.H. Israel, N.J. King, & O.S. Kerr, Criminal Procedure \u00a7 8.8(g) (3d ed. 2007 & Supp. 2012-2013) (“prosecutors may appropriately use both search warrants and subpoenas to obtain related material in the same investigation”). Rather, the Commonwealth’s ability to secure grand jury subpoenas and its authority to seek and obtain search warrants derive from separate sources of authority, and nothing in rule 17 suggests that the ground rules change with respect to search warrants once an indictment has issued. Decisions by Federal Courts in cases governed by the Federal Rules of Criminal Procedure, including Fed. R. Crim. P. 17, support this view. See, e.g., KRL v. Moore, 384 F.3d 1105, 1112 (9th Cir. 2004) (discussing “evidence recovered pursuant to a post-indictment search warrant”); United States v. Cooney, 26 Fed. Appx. 513, 524 (6th Cir.), cert. denied, 535 U.S. 1118, 122 S. Ct. 2342, 153 L. Ed. 2d 170 (2002) (suggesting that police could have obtained warrant to search home of defendant under indictment).\t\t<\/p>\n

We thus conclude that the postindictment issuance of an ex parte search warrant to obtain e-mails does not run afoul of rule 17, and that an ex parte search warrant is an acceptable means by which the Commonwealth may seek to seize e-mails of a defendant under indictment. That does not end our discussion, however. As we explain infra, judicial supervision is essential where the Commonwealth seeks to search the e-mails of an indicted defendant, because of the risk that privileged attorney-client communications will be included in those e-mails. In order to ensure proper judicial supervision over this process, and as an exercise of our supervisory powers, we shall require in all future cases that only a Superior Court judge may issue a search warrant seeking e-mails of a criminal defendant under indictment. In addition, the affidavit submitted in support of the warrant application must inform the judge at the outset that the individual whose e-mails are being sought is presently under indictment, and must explain the nature and scope of the pending indictment (or indictments), as well as the relationship, if any, between the pending indictment and the search warrant being sought. Finally, the affidavit must explain the need for using a search warrant instead of the rule 17 (a) (2) procedure to obtain prior access to subpoenaed records (e.g., because the SCA requires a search warrant). The Commonwealth’s failure to justify the need for a search warrant rather than a rule 17 subpoena would be an appropriate basis for a judge to deny the Commonwealth’s application for a search warrant. See note 22, supra.<\/p>\n

b. Search of e-mails seized pursuant to a postindictment search warrant. Under both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, the manner in which a search is conducted must be reasonable. See United States v. Ramirez, 523 U.S. 65, 71, 118 S. Ct. 992, 140 L. Ed. 2d 191 (1998) (“The general touchstone of reasonableness which governs Fourth Amendment analysis … governs the method of execution of the warrant”); Bellville v. Town of Northboro, 375 F.3d 25, 32 (1st Cir. 2004) (“the Fourth Amendment’s prohibition of unreasonable searches and seizures extends not only to the initiation of searches but also to the manner in which searches are conducted”); Commonwealth v. McDermott, 448 Mass. 750, 777, 864 N.E.2d 471, cert. denied, 552 U.S. 910, 128 S. Ct. 257, 169 L. Ed. 2d 188 (2007) (McDermott) (search of computers and disks storing records “must be reasonable”). When an indicted defendant’s e-mails are the object to be searched by the Commonwealth, because there is a risk that they contain privileged communications, we conclude that a search, to be reasonable, must include reasonable steps designed to prevent a breach of the attorney-client privilege. See, e.g., Klitzman, Klitzman & Gallagher v. Krut, 744 F.2d 955, 961 (3d Cir. 1984) (search of law office unreasonable where investigators “took not one step to minimize the extent of the search or to prevent the invasion of the clients’ privacy guaranteed by the attorney-client privilege”). See also McArthur, The Search and Seizure of Privileged Attorney-Client Communications, 72 U. Chi. L. Rev. 729, 730 (2005) (arguing that “the Fourth Amendment is violated whenever law enforcement officials have reason to believe that a search or seizure is likely to expose them to privileged attorney-client communications and fail to take reasonable steps to minimize their exposure”).<\/p>\n

Given the constitutional command of reasonableness and in light of the risk involved to the integrity of a defendant’s attorney-client privilege, we conclude that in the future, when the Commonwealth seizes pursuant to a search warrant the e-mails of a defendant under indictment, before any search of those e-mails may take place, the Commonwealth must present to a Superior Court judge and obtain the judge’s approval of the search protocol to be used and specifically the procedures proposed to protect against searches of privileged communications between the defendant and his attorneys. Court supervision is necessary because the harm to the defendant could be irreparable if the Commonwealth viewed privileged materials, even if only by accident. Further, unless the Commonwealth can demonstrate a compelling contrary reason, the defendant must have an opportunity to be heard before the judge approves a particular search method.<\/p><\/blockquote>\n

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