I
Aрpellant contends that the interception and clandestine recording of his telephone conversation with his attorney violated his right to counsel in contravention of Section 10, Article I of the Ohio Constitution and the Sixth Amendment to the United States Constitution. This court has previously observed that the right to counsel afforded by Section 10, Article I of the Ohio Constitution is comparable to but independеnt of similar guarantees provided by the Sixth Amendment to the United States Constitution. See Ford v. State (1929),
The state urges, however, that the right to consult counsel was not violated in the case sub judice because appellant was aware of the presence of Bartlett and thus had no reasonable expectation of privacy within the county jail. Consequently, the statе maintains that any evidence obtained in such surroundings is not subject to suppression. In support of this view, appellee cites Katz v. United States (1967),
“* * * What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ” (Emphasis added.) Id. at 351.
Katz therefore was not intended, nor should it be interpreted, to suggest that the Sixth Amendment right of a criminal defendant to privately consult his attorney ends at the prison gates. To the contrary, the Suprеme Court had previously held that: “* * * [I]t may be assumed that even in a jail, or perhaps especially there, the relation
Lanza illustrates the crucial distinction between the protections of the Fourth and Sixth Amendments. Relative to the Fourth Amendment, a reasonable expectation of privacy is a prerequisite to a claim that an illegal search and seizure were conducted. See Lewis v. United States (1966),
The state nevertheless contends that our holding in State v. Sargent (1975),
Thus, Sargent is clearly distinguishable from the case at bar. The evidence at issue in Sargent concerned the demeanor of the defendant at the time of his conversation with his attorney. Such demeanor evidence would have been obtainable irrespective of the nature of the conversation or the identity of the person with whom the defendant was speaking. In short, it bore no relationship to the content of the attorney-client сonversation.
Accordingly, we hold that evidence obtained through the unauthorized interception of a private conversation between a criminal defendant and his attorney is subject to suppression pursuant to Section 10, Article I of the Ohio Constitution.
II
Having concluded that a constitutional violation has occurred, we must now consider what remedy is appropriate. The state maintains that mere suppression of the illegally obtained information is sufficient. Appellant responds that dismissal of the indictment is the only effective deterrent where the confidentiality of the attorney-client relationship has been breached. Accordingly, appellant argues that any interception of a confidential communication between attorney and client requires dismissal of thе indictment. It is our view that neither mere suppression nor auto
Appellant argues persuasively that the acquisition by an investigating officer of information communicated between an attorney and his client relative to trial strategy is a constitutional violation for which suppression is an inadequate remedy. Since the information obtained would in most cases not be admissible evidence, it is contended the motivation for obtaining such information would be to obtain a tactical advantage at trial or to secure other information which would lead to apparently untainted evidence. In this regard the California Supreme Court observed:
“The exclusionary remedy is also inadequate since there would be no incentive for state agents to refrain from such violations. Even when the illegality is discovered, the state would merely prove its case by the use of other, untainted evidence. The prosecution would proceed as if the unlawful conduct had not occurred.” Barber v. Municipal Court (1979),
The state argues with equal persuasiveness that the automatic-dismissal rule urged by appellant would result in thе dismissal of indictments irrespective of the nature of the communication or knowledge of its contents on the part of the prosecution.
It is therefore our conclusion that the test announсed by the United States Supreme Court in Weatherford v. Bursey (1977),
The aforementioned factors must be considered in the first instance by the trial court in the context of the intercepted communication. Thus, where the unauthorized interception of a private conversation between a criminal defendant and his attorney results in substantial prejudice to the defendant in the preparation of his defense, the trial court may, in the exercise of its sound discretion, take such action as is appropriate, inсluding dismissal of the indictment. In order to protect the confidentiality of the communication, any review by the trial court should be accomplished through an in-camera inspection of its contents by the court and the parties. Such procedure presents no practical difficulties in the case sub judice since there exists tangible evidence of the communication in the form of a tape recording. However, where the information gained by governmental authorities is derived from the
Given that such knowledge is within the exclusive control of the government, thе burden is upon the state, after a prima facie showing of prejudice by the defendant, to demonstrate that the information gained was not prejudicial to the defendant. See Commonwealth v. Manning, supra, at 442-443,
The judgment of the court of appeals is reversed for the reasons stated herein, and the cause is remanded to the trial court for proceedings not inconsistent with this opinion.
Judgment reversed and cause remanded.
Notes
This is not to suggest that the tape recording of the governmental intrusion in any way ameliorates the severity of the constitutional violation. If anything, such practices compound the violation and should be universally condemned.