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.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)