Another search question...

[Scruit]

If an officer is searching my car legitimately (either with permission, or pc, or a warrant etc) and finds a folder lableled clearly "Protected Information - Attorney/Client Priviledged - Not subject to search") then can he read the contents? Or must he skip it? Does permission to search the car cover that folder overriding the attorney-client priviledge? What about if the guy gives specific permossion to read the folder?

[Altai]

I wouldn't know for sure but if such a label prevented an officer from looking inside the folder, it would be a rather convenient hiding spot for anything you don't want to be found.

[Oldbillplod]

I would suggest it would depend on what he was looking for, if it was documentary evidence then yes if it was poor Aunt Cybils pink poodle he had just stolen from the poodle parlour then no.

[Retired Trooper]

once permission is given or pc established everything in the car is fair game.

[harley27]

I would say that the officer can check the folder for contraband but can not actually read the documents if they are protected by attorney/client priviledge. Any information obtained from the folder would never be admissable in court or allowed to be used as probable cause for future search warrants if needed.

[99TAC]

I thought that if you give permission to search, you can tell the officer that he can't search certain things and you can end the search at any time.

[K9Cop]

A person who consents may limit that consent in any way he wants to. If he said "You may search my car everywhere but in that specific folder", an officer must accept that limitation. And the person may stop the search at any point. Sometimes an officer will find evidence during a consent search that gives him probable cause to search further without having to rely on the consent-to-search justification. (Arrest, Search, and Investigation in NC - Robert L. Farb)

If I had a search warrant or probable cause to search a vehicle - would I read that folder? Good question - I think I'll ask the D.A. that one next time I see him.

[Retired Trooper]

A person who consents may limit that consent in any way he wants to. If he said "You may search my car everywhere but in that specific folder", an officer must accept that limitation. And the person may stop the search at any point. Sometimes an officer will find evidence during a consent search that gives him probable cause to search further without having to rely on the consent-to-search justification. (Arrest, Search, and Investigation in NC - Robert L. Farb)

If I had a search warrant or probable cause to search a vehicle - would I read that folder? Good question - I think I'll ask the D.A. that one next time I see him.

thats why when u start the search u place the subject in the back seat of your patrol car ( for officer safety reasons )

[Scruit]

In the "Criminal Law Handbook" (Nolo press) they advise writing "Private, for my attorney only" on any letter that you send to your attrney while you are being hel din custody. Of course in a prison setting the rules may be different, but if you're in a holding cell at a police station then that phrase is supposed to put the letter off-limits...

Just wondering if it actually does... ;)

[Scruit]

Taking this example to the opposite extreme... What if I had a box that was large enough to conceal a handgun, and I wrote that magic phrase on the outside of the sealed box?

K-911, it was my understanding that even with PC, attorney-client priviledge still exists. That would be why the Criminal Law Handbook says that a letter send from a jail cell to your attorney is still sacred....

[oscarmitre]

I don't know if this helps due to different jurisdiction issues but in my jurisdiction privilege has to be claimed in court. If evidence is obtained in breach of a valid claim of absolute privilege then that evidence will not get in front of a jury. At the scene of the investigation the investigator may seize virtually anything that falls within the purview of the general search warrant they possess or the legislated authority given to all police officers. Whether or not that evidence is actually admitted and presented to the jury depends on the ruling of the judge. This is a feature of our adversary system, the judge validates or invalidates the actions of the police by making decisions on admissibility of evidence.

[Qld504]

We have struck a similar scenario to this every time we have done a warrant on a lawyer's office. It's a little different, but may help. Our procedures are to have the lawyer with you during the search and let him/her lay claim to anything that is allegedly subject of privilege. (Not quite the crook in the car scenario, but stick with me)

It's then sealed and signed in their presence and at the end of the search taken immediately before a Magistrate (eg lower Court Judge) and a ruling made.

If the Magistrate agrees it's subject of privilege, it's handed back to the subject of the search without being read, straight away. If the lawyer is making a nuisance of himself and claiming every second document is privileged, it doesn't go over well when the Magistrate can see the lawyer's claim of privilege was mostly to annoy the police.

[Jynkxxie]

I would say that the officer can check the folder for contraband but can not actually read the documents if they are protected by attorney/client priviledge. Any information obtained from the folder would never be admissable in court or allowed to be used as probable cause for future search warrants if needed.

For your first scenario...I have to completely agree with this. This is, from what I learned, the rule in institutions as well.

[darrell]

Jynkxxie is correct. He can check it for contraband but at no time can he read the contents of the pages wherein the folder.

[Scruit]

Does attorney-client priviledge extend to items that are, in themselves, illegal or contraband? ie the subject is currently being charged with drug posession, but he is fighting it in the basis that the substance siezed was not drugs. His attorney says; "Do you have any more at home? Bring it to me and I'll have it analysed." On his way to the lawyer's office he is pulled over again and the folder labelled attorney-client is opened and the substance is found.

Or what of a murder suspect who is discussing his defense strategy with his lawyer... His strategy is that the gun malfunctioned. The lawyer want to have the gun examined, and the suspect is pulled over taking the gun to the lawyer's officer. As the gun itself is evidence in the crime but is being used as evidence for the defense, can the gun itself be covered by attorney-client priviledge?

Finally - Can the prosecution (in a criminal trial) get Discovery from the defense? Or does the defense have some 5th amendment right to withhold it... Bearing in mind the difference between testimonial and non-testimonial evidence types... ie can the defendant be ordered to reveal the location of hidden evidence?