What is the appropriate judicial remedy for interference with the right to counsel by law enforcement agents who intentionally eavesdrop on attorney-client privileged communications? A magistrate ordered outright dismissal of the criminal case. This surely would have a deterrent effect upon law enforcement agents. We balance the competing rights at stake and conclude that dismissal is too drastic and would be “judicial overkill.” Exclusion of overheard communications and any derivative evidence flowing therefrom is the appropriate remedy. This should deter overzealous law enforcement agents as there is nothing to be gained by such unlawful activity. At the same time, the Attorney General’s client, the People of the State of California, will not be stymied in their attempt to enforce criminal law and recoup public money allegedly “stolen” by respondents.
The People appeal from the superior court’s order denying their motion to reinstate a felony complaint pursuant to Penal Code section 871.5.
We reject respondents’ contention that the dismissal of the complaint was not subject to superior court review under section 871.5 because the dismissal was not pursuant to any of the statutes listed in that section. The magistrate did not cite any authority for his ruling but the motion was predicated on this court’s opinion in Morrow v. Superior Court (1994)
We conclude that the conversations in the Attorney General’s office were privileged attorney-client communications that cannot be disclosed without the consent of the three respondents whose conversations were overheard. Substantial evidence supports a finding that three special agents of the Department of Justice intentionally eavesdropped on communications in both
Factual and Procedural Background
The People filed a two-count felony complaint against respondents. Count 1 charged grand theft in violation of section 487, subdivision (a). The count included special allegations that the value of the property taken exceeded $1.3 million (§ 12022.6, subd. (a)(3)) and that the amount of the theft exceeded $100,000 (§ 1203.045). Count 2 charged the filing of fraudulent Medi-Cal claims in violation of Welfare and Institutions Code section 14107, subdivision (b)(1).
Before a preliminary hearing was held, Anna Gravich moved to dismiss the complaint “pursuant to the holding” in Morrow. The other respondents joined in her motion. The motion was supported by the declarations of three of respondents’ attorneys. They declared as follows; “This case involves allegations of Medi-Cal fraud arising out of alleged illegal practices occurring at the Downtown Medical Clinic. ... [A] search warrant was issued for patient records and files maintained at the clinic. Thousands of files were seized.” Respondents “are operating under a joint defense agreement.”
The parties agreed that respondents and their counsel would be allowed to “confidentially examine the seized medical files.” The Attorney General “required that state law enforcement agents assigned to the case be present for examination of the medical files to ensure the integrity of the evidence.” It was agreed that the agents’ “visual monitoring of the files would not include monitoring of the conversations between clients and attorneys.”
In October 2008 respondents Anna Gravich, Gersha Gravich, and Shrier reviewed the medical files “in a very large conference room” at the Attorney General’s office in Burbank. Respondents were accompanied by Dmitry Gorin, counsel for Anna Gravich; Todd Melnik, counsel for Gersha Gravich; and Vicki Podberesky, counsel for Ella Rozenberg. Several agents were “on the perimeter of the room monitoring the review of evidence.” These agents “listened in on and prepared a report documenting the confidential communications between counsel and clients.” Gorin spoke to Anna Gravich “in Russian in a hushed tone.” The “government” intentionally eavesdropped on their conversation by placing “a Russian-speaking agent in close proximity” to them. This agent was seated approximately five to 10 feet away. Counsel became aware of the eavesdropping when they received an agent’s report containing “confidential attorney-client conversations, including those that took place in Russian.”
The People did not file written opposition to respondents’ motion. A hearing on the motion was conducted but the People did not present any evidence at the hearing. The prosecutor told the magistrate that “the material facts are not in dispute.” The prosecutor went on to state: “If there’s any dispute, it’s as to what arrangements were made between the defense and the special agent [(Wilbur)], who made the arrangements. As far as who was in the room, where people were, what was overheard, I don’t think that those are really in dispute.” The prosecutor admitted that Wilbur asked “the Russian-speaking agent” (Fives) to sit “within a few feet” of Gorin and Anna Gravich.
The prosecutor characterized respondents’ motion as “really a matter of law in the sense of applying the law to these facts that are non-disputable.” The magistrate asked: “[T]he People have said that the facts, as stated in the declarations of defense counsel, are essentially correct and, especially, as to the major points. HQ Is that correct?” The prosecutor replied, “Yes, your honor.”
During argument on the motion, the prosecutor gave his own unsworn version of events: “[T]here was no discussion [with respondents’ counsel] as to confidentiality in the sense of not listening in.” There was no “agreement that whatever was said and overheard will not be used against you.” Agent Wilbur had arranged for herself and two other agents to be present in the conference room while respondents and counsel were reviewing 80 medical files. The room was about 15 feet by 30 feet and contained three long conference tables. Wilbur had also selected a fourth agent, Fives, for “his Russian fluency knowing that the defendants spoke Russian and, also, one of the defense attorneys spoke Russian.” The prosecutor “was unaware of these arrangements.”
Unlike the other agents in the conference room, Fives had not worked on the case. The prosecutor came into the room and “did observe Agent Fives
The prosecutor argued that no sanctions should be imposed because respondents and counsel did not have a reasonable expectation of privacy as to the overheard conversations. The prosecutor asserted: “What we simply have is, that these attorneys spoke too loud ... so that there were conversations that were able to be overheard” by law enforcement agents whose presence was known to everyone. “[I]t’s simply a matter of the agents being in a place that they were entitled to be. They overheard conversations without making an effort to overhear them . . . .” “These defense attorneys took a chance by bringing their client[s] into the Attorney General’s office to have confidential communications with them. That was their intent.” The prosecutor acknowledged that the “defense attorneys were not aware that their conversations were being overheard.” The attorneys “were speaking in low tones” because “[t]hey knew that if something was overheard, it could be used against them.” But “the fault lies with the person who was speaking too loud . . . when they knew that a law enforcement officer was so close by and would overhear.”
Attorney Gorin protested: “Putting a Russian-speaking agent, intentionally, in front of me, knowing that... the review is going to be confidential... is completely and totally violative [of] what our system is all about, [f] They knew in advance . . . that the lawyers and the clients were going to talk about sensitive confidential information.” “[T]hey set a trap and took advantage of it.” “I didn’t think anybody could hear me. We were huddling shoulder to shoulder with about three boxes in front of me.” “There’s no other remedy in this case. . . . The only remedy in Morrow ... is dismissal and I’m asking the court to follow that holding.”
Attorney Melnik alleged that “the agreement that was struck [between the parties] was that the agents could be there in order to monitor the handling of the files, but they were not to listen to the conversations.” “They surreptitiously inserted a Russian-speaking agent to eavesdrop on attomey/client confidential communications.” “[W]hen Mr. Gorin, Dr. [Anna] Gravich and
After the hearing, the magistrate took the matter under submission and thereafter announced his ruling: “The salient facts in this matter are virtually undisputed. Based on those facts, the court finds that the [respondents] and counsel had, throughout the procedure, a reasonable expectation of privacy and that the People intentionally pierced that confidentiality veil, [f] Under these circumstances, the court further finds that the People’s misconduct was outrageous within the meaning of due process and other constitutional safeguards. Said conduct cannot be accepted or glossed over. Therefore, the defense motion to dismiss is granted.” The magistrate also ruled that the matter was dismissed “with prejudice.”
In February 2009 the People unsuccessfully moved in the superior court to reinstate the complaint pursuant to section 871.5.
Appealability and Standard of Review
The People may appeal from the order denying the motion to reinstate the complaint pursuant to section 871.5. (§ 1238, subd. (a)(9).) “[S]ection 871.5 is the exclusive method by which the People may obtain a review of a magistrate’s order of dismissal.” (People v. Mimms (1988)
“When an action has been dismissed by the magistrate, Penal Code section 871.5 allows the prosecution to seek review in the superior court and request reinstatement of the charges ‘under the same terms and conditions as when the defendant last appeared before the magistrate.’ [Citation.] However, the prosecution may only seek reinstatement on the basis that ‘as a matter of law, the magistrate erroneously dismissed the action or a portion thereof.’ [Citation.]” (People v. Dawson (2009)
“On appeal from an order denying a motion to reinstate a criminal complaint under section 871.5, we disregard the superior court’s ruling and directly examine the magistrate’s ruling to determine if the dismissal of the
Superior Court’s Jurisdiction to Entertain the Section 871.5 Motion
Respondents contend that the dismissal of the complaint was not subject to superior court review under section 871.5 because the dismissal was not pursuant to any of the statutes listed in that section. “ ‘[T]he plain language of 871.5 evidences an intent to permit superior court review of dismissal orders by magistrates when a complaint has been dismissed pursuant to specifically enumerated statutory authority, i.e., sections 859b, 861, 871, 1008, 1381, 1381.5, 1385, 1387 or 1389.’ ” (People v. Williams (2005)
The magistrate did not expressly specify any authority for dismissal of the complaint, but Anna Gravich’s motion to dismiss was “pursuant to the holding” in Morrow. Respondents argue that the dismissal was based solely on nonstatutory federal and state constitutional grounds as specified in Morrow. We cannot agree. A close reading of our decision to dismiss in Morrow shows that it was based in part upon section 1385 factors as outlined in People v. Superior Court (Howard) (1968)
Privileged Attorney-client Communications
In Morrow “[t]he prosecutor told her investigator to sit next to the [courtroom] holding cell and listen to the conversation between defense counsel and [defendant].” (Morrow, supra,
The Morrow dismissal rule applies to privileged attorney-client communications. The privilege encompasses “a confidential communication between client and lawyer” (Evid. Code, § 954), which is defined as “information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons . . .” (id., § 952). “The privilege is that of the client and not the attorney, and the client must intend that communications be confidential.” (Insurance Co. of North America v. Superior Court (1980)
Viewing the evidence in the light most favorable to respondents, we conclude that substantial evidence supports the magistrate’s finding that respondents’ communications with counsel were protected by the attorney-client privilege. It is reasonable to infer that respondents reasonably believed these communications would be confidential and would not be overheard by the special agents, who were supposed to be present for the sole puipose of visually monitoring the inspection of the medical files. According to Attorney Gorin, “[t]he review of evidence took place in a very large conference room,” and the agents were positioned “on the perimeter of the room.” Agent Fives was the only agent identified by Gorin as having come within “close proximity” to his client. Gorin said: “I didn’t think anybody could hear me. We were huddling shoulder to shoulder with about three boxes in front of me.” To assure that the agents would not overhear Gorin’s conversation with his client, Gorin “spoke ... in Russian in a hushed tone.” “Intrusion upon a client-lawyer conference, whether in the privacy of an office or at the counsel table in court ... is particularly offensive where defendants have sought to keep their conversations and communications secret and confidential by resort to a foreign language.” (People v. Cooper (1954)
The confidentiality of the attorney-client communications is further supported by statements of the two other attorneys who were present. Melnik declared: “There was an agreement” between the parties “that the Attorney General’s visual monitoring of the files would not include monitoring of the conversations between clients and attorneys . . . .” Podberesky told the court that she was seated at one end of a long table that “might have been as long as counsel table in the courtroom.” Agent Wilbur was seated at the other end. Podberesky went on to state: “I had positioned myself at the far end of the table for the sole purpose of making sure I wasn’t overheard .... I tried to speak in a lower voice. ... If something was overheard, it certainly wasn’t intended to be overheard, in any way, because we sat at the opposite end of the table. There was no agent near us, except Agent Wilbur . . . .”
We recognize that, except for the communications between Gorin and his client, Anna Gravich, the agents overheard communications between respondents and counsel who were not representing them. Agent Deroian overheard communications between Gersha Gravich and Gorin. Agent Wilbur overheard communications between Shrier and Podberesky, who represents Ella Rozenberg. Nevertheless, based on Podberesky’s declaration, a reasonable trier of fact could find that all communications were protected by the attorney-client privilege. Podberesky declared: “The defendants in this case are operating under a joint defense agreement. Thus, all . . . communications among the joint defense group members and/or their clients in connection with the joint defense group members’ representation of their respective clients are conducted and protected pursuant to California Evidence Code section 912(d) . . . .”
“Typically, a joint defense agreement protects information shared by defendants after a lawsuit has been filed, and it serves the purpose of protecting from disclosure the joint defendants’ trial strategies and preparation.” (OXY Resources California LLC v. Superior Court (2004)
Because of the joint defense agreement, the magistrate properly applied the nonwaiver concept to the confidential communications that Shrier and Gersha Gravich made to counsel who were representing other respondents. Such communications were reasonably necessary for the accomplishment of the purpose for which Shrier and Gersha Gravich had consulted their own attorneys. The defense of the charges was apparently going to be a collaborative effort.
Intentional Violation of Attorney-client Relationship
The magistrate found that the agents had “intentionally pierced” the confidentiality of the attorney-client relationship by eavesdropping on conversations between respondents and counsel. The intentional nature of the agents’ conduct is a factual finding that must be upheld if supported by substantial evidence.
Substantial evidence supports the magistrate’s finding that Agent Fives was intentionally placed inside the conference room for the purpose of eavesdropping on Russian conversations between Gorin and respondents. Unlike the other agents in the conference room, Fives had not worked on the case. The prosecutor declared in open court: “They [(the agents who had been working on the case)] needed somebody else [to monitor the inspection of the medical files.] . . . [I]t’s fair to conclude they picked [Fives] rather than somebody else because of his Russian fluency.” Agent Wilbur “picked agent Fives,
Based on the prosecutor’s statements and the evidence, it is reasonable to infer that Agent Wilbur told Fives to sit within a few feet of Gorin and his client not because she needed him to assist in monitoring the inspection of the medical files, but because she wanted him to eavesdrop on attorney-client communications in Russian. There were already three agents in a conference room that was about 15 feet by 30 feet. These agents were monitoring the conduct of three attorneys and three defendants. The People have failed to advance any justification for the need of a fourth agent. It is reasonable to infer that three agents were enough to adequately monitor the conduct of the six persons in the conference room. Thus, a logical explanation for Agent Fives’s presence is that he was there to engage in eavesdropping.
Unlike Agent Fives, Agents Wilbur and Deroian did not speak Russian and overheard conversations in English. The People argue that the only reasonable inference to be drawn from the evidence is that Wilbur and Deroian did not intentionally eavesdrop on these conversations; instead, they simply overheard portions of the conversations while positioned where they had a right to be. In contrast to Agent Fives, Wilbur and Deroian were entitled to be in the conference room because they were working on the case. The parties’ agreement contemplated that “agents assigned to the case” would “be present for examination of the medical files to ensure [their] integrity.”
No direct evidence was presented that Wilbur or Deroian came closer to respondents than necessary to monitor the inspection of the medical files. But there was circumstantial evidence to this effect. The circumstantial evidence consisted of Wilbur’s deliberate positioning of Agent Fives in the conference room so that Fives would be able to eavesdrop on confidential attorney-client communications in Russian. Since Wilbur was the agent in charge of making the arrangements for the monitoring of the records inspection, the circumstantial evidence tarnishes both Wilbur and Deroian. Based on this evidence, a reasonable trier of fact could find that Wilbur and Deroian intentionally positioned themselves so that they would be able to eavesdrop on confidential attorney-client communications in English. Their success in eavesdropping
In Schaffer v. Superior Court (2010)
The Remedy Is Not Dismissal
In Morrow we decided that, given the particular circumstances of that case, dismissal was the appropriate remedy for intentional eavesdropping on privileged attorney-client communications. As we shall explain, the Morrow remedy is not here appropriate because Morrow is fairly and factually distinguishable.
In Morrow “[t]he eavesdropping occurred inside a courtroom and was orchestrated by the prosecutor, an officer of the court.” (Morrow, supra,
Morrow is distinguishable for several reasons. First, unlike Morrow, the eavesdropping in the instant case was orchestrated by Agent Wilbur, not the prosecutor who was unaware of the eavesdropping plan. Thus, in contrast to the prosecutor in Morrow, the prosecutor here did not strike “a foul blow” by “conspiring to violate [respondents’] constitutional rights.” (Morrow, supra,
Second, the eavesdropping did not occur “within the hallowed confines of the courtroom.” (Morrow, supra,
Third, in Morrow the defendant called the prosecutor and investigator as witnesses at the hearing on the motion to dismiss. Both claimed the privilege against self-incrimination and refused to testify. “Based upon the evidence presented or rather, the lack of it, [the trial] court could not have made a reliable finding as to what the investigator overheard.” (Morrow, supra,
Fourth, in contrast to Morrow, a number of factors here militate against a dismissal of the complaint. In Morrow we declared: “Cases of outrageous conduct and the appropriate sanctions ... are sui generis. Each case must be decided on its own facts, [f] In ordering dismissal, we have considered the nature of the crime charged, the fact that [defendant] has been incarcerated for approximately one year awaiting trial, the harassment that he has endured at the hands of the prosecutor and her investigator, and the burdens that he may confront were we to permit the case to proceed to trial.” (Morrow, supra,
“ ‘[T]he sanction of dismissal is clearly discretionary and is only required in particularly egregious cases.’ [Citation.]” (Boulas v. Superior Court (1986)
The Remedy Is an Exclusionary Order and/or Other Sanctions to Be Fashioned by the Superior Court
Having ruled that the dismissal of the criminal action is not warranted, we turn to the appropriate remedy. Respondents claim that the People should not be permitted to ask for a lesser remedy than dismissal for the first time on appeal. We reject this contention. An exclusionary remedy may have been superfluous at the preliminary hearing stage, where the “magistrate’s role is limited to determining whether a reasonable person could harbor a strong suspicion of the defendant’s guilt . . . .” (Cooley v. Superior Court (2002)
In any event, the People may raise the exclusionary sanction for the first time on appeal because the relevant facts—whether the special agents intentionally eavesdropped on confidential attorney-client communications— were resolved in respondents’ favor by the magistrate. The issue of the appropriate remedy, therefore, involves a pure question of law. A party may raise a new theory on appeal where it involves a purely legal question. (See, e.g., People v. Butler (1980)
The judiciary should not be a party to any exploitation of illegally obtained evidence at trial. If respondents are held to answer at the preliminary hearing, the superior court shall exercise broad discretion in fashioning a remedial order. At a minimum it shall bar the use of any information gleaned from the eavesdropping and any derivative evidence which may have flowed therefrom. The People shall have the burden to show that any People’s evidence sought to be introduced has an independent origin from the eavesdropping. The burden of proof is beyond a reasonable doubt. In addition, the superior court may make any other order or impose any other sanction which it deems appropriate. (See, e.g., Wilson v. Superior Court (1977)
Conclusion
Like the magistrate, we deplore the conduct of these Department of Justice special agents and sincerely hope that this is an isolated incident. A prosecutor is the guardian of the constitutional rights of everyone, even criminal defendants. (Morrow, supra,
The order denying the People’s motion to compel the magistrate to reinstate the complaint is reversed. The superior court is directed to enter a new order granting the motion and returning the case to the magistrate for resumption of the proceedings. The magistrate is directed to exclude all evidence of attorney-client communications heard by the Department of Justice’s special agents in the Attorney General’s conference room.
Coffee, J., and Perren, J., concurred.
A petition for a rehearing was denied December 13, 2010, and respondents’ petitions for review by the Supreme Court were denied March 16, 2011, S189393.
Notes
All statutory references are to the Penal Code unless otherwise stated.
This argument borders on absurdity. The magistrate did not credit it. Neither do we. No reasonably competent defense attorney would “take a chance” like this. It is one thing to inadvertently overhear a confidential statement or hear a defendant blurt something out in a loud tone of voice. It is quite another thing to position oneself to intentionally listen to confidential attorney-client conversations. No prosecutorial agents should position themselves so they can intentionally eavesdrop upon attorney-client conversations.
On November 16, 2009, the People filed a motion to augment the record to include (1) a search warrant affidavit, and (2) the reporter’s transcript of a hearing conducted on October 30, 2008. The magistrate who dismissed the complaint did not preside at this hearing. In an order filed on December 14, 2009, we treated the motion to augment as a request for judicial notice and deferred ruling on the request. We deny the request because neither the search warrant affidavit nor the reporter’s transcript was before the magistrate when he dismissed the complaint. “The superior court shall hear and determine the motion on the basis of the record of the proceedings before the magistrate.” (§ 871.5, subd. (c).)
See also Wilson P. Abraham Construction Co. v. Armco Steel Corp. (5th Cir. 1977)
Shrier’s counsel, Alexander Kirkpatrick, stated in open court that he had allowed his client to view the medical files with Attorney Podberesky because he had “represented to [her] that Dr. Shrier had certain observations that were important to understanding what was in these charts.” Several months earlier, Kirkpatrick and Shrier had “spent four hours or so looking at those records.” Gersha Gravich’s attorney, Melnik, declared: “The Gravich’s [sic] have similar interests in the case, and at times Mr. Gorin and myself have met with both [respondents] to discuss the case. It was not unusual for Mr. Gorin to converse with Mr. [Gersha] Gravich, or myself to converse with Dr. [Anna] Gravich.”
The People contend that Fives replaced one of the agents who had “left the room for 15 minutes.” The People’s citations to the record do not support this contention. The prosecutor told the court, “[W]hen she [(Wilbur)] needed another agent to supplement the three agents who had been working on the case, she picked agent Fives . . . .” (Italics added.)