Cell Phone, Defense Attorneys, and Grand Jury Subpoenas

The Supreme Judicial Court, in a January 12, 2015 decision involving a John Doe criminal defendant, ruled that the government is not entitled to compel, through a grand jury subpoena issued to a law firm, a cell phone the law firm previously had received from a client who was seeking legal advice.  More specifically, the client was the target of the grand jury investigation, and the government was seeking the cell phone on the theory the cell phone contained text messages regarding alleged criminal activity by the client.  Although the government conceded the client could not be directly compelled to produce the cell phone, because doing so would violate the client’s right against self-incrimination, the government also argued the law firm could be ordered to turn over the client’s cell phone because there was probable cause to believe the phone contained evidence of criminal activity and, therefore, the government could get a search warrant to inspect the phone. 

In rejecting the government’s argument, the Supreme Judicial Court first reiterated that both the Fifth Amendment to the U.S. Constitution and Article 12 of the Massachusetts Declaration of Rights clearly protect the client from being forced to directly turn over his cell phone, because the Fifth Amendment clearly establishes “[n]o person … shall be compelled in any criminal case to be a witness against himself” and Article 12 similarly provides that no person “shall … be compelled to accuse, or furnish evidence against himself.”  The Court then explained that, although these rights against self-incrimination do not extend to the law firm (which, unlike the client, was not facing criminal prosecution), the law firm could not be ordered to turn over the cell phone because of the attorney-client privilege. 

More specifically, because the client furnished the cell phone to the law firm for the purpose of obtaining legal advice, the law firm could not be forced to give the cell phone to the government because the attorney-client privilege “serves to protect open communication between attorneys and clients by ensuring that a client does not sacrifice the protection that evidence otherwise would receive against compelled production by transferring it to an attorney.  The damage to the attorney-client relationship would result whenever previously unobtainable materials become obtainable as a result of being transferred to an attorney.”  

Undeterred by this judicial reasoning, the government further argued that a grand jury subpoena for the law firm to turn over the cell phone was still permissible, because the government was only seeking a piece of “physical evidence” (i.e., the phone) and, once the phone was obtained, would then seek a search warrant to actually inspect the phone (and, more specifically, the text messages).  In rejecting this argument, the Court noted that the text messages constitute “documentary evidence”, and that Massachusetts law provides “no search warrant shall issue for any documentary evidence in the possession of a lawyer … who is known or may reasonably be assumed to have a relationship with any other person which relationship is the subject of a testimonial privilege, unless, in addition to the other requirements of this section, a justice is satisfied that there is probable cause to believe that the documentary evidence will be destroyed, secreted, or lost in the event a search warrant does not issue.” 

 Every case is different, and as the Supreme Judicial Court noted at the end of this John Doe decision, there might be other circumstances in which items left with an attorney might be subject to compelled production through a subpoena.  Consequently, defense attorneys must carefully consider the issues raised by this John Doe decision, and must vigilantly resist all governmental over-reaching.