A Searching Inquiry
The Minnesota Supreme Court affirmed an attorney’s criminal conviction
An attorney, Kristi McNeilly, was convicted of theft by swindle. During the investigation that led to her conviction, law enforcement executed two warrants—the first to search her law office (the “office warrant”) and the second to search the electronic devices seized from her office (the “device warrant”). McNeilly argues that the office warrant was not sufficiently particular under the Fourth Amendment to the United States Constitution and Article I, Section 10, of the Minnesota Constitution because it allegedly authorized an unlimited search of her electronic devices. She also argues that the device warrant was not sufficiently particular. Finally, she argues that both warrants were executed in an unreasonable manner under the Fourth Amendment and Article I, Section 10, because insufficient procedural measures were taken to safeguard privileged attorney-client communications and attorney work product.
For the reasons discussed below, we hold that the warrants were sufficiently particular. We further conclude that even if we determined that the search warrants were executed in an unreasonable manner in violation of the Fourth Amendment or Article I, Section 10, McNeilly is not entitled to a new trial because, under our governing standard, the jury’s verdict was surely unattributable to the district court’s decision not to suppress evidence obtained in the search. Consequently, the alleged constitutional error here was harmless beyond a reasonable doubt. Thus, we do not decide whether the searches of McNeilly’s office and electronic devices were executed in an unreasonable manner under the Fourth Amendment or Article 1, Section 10. But given our concern about the constitutional and other implications of allowing the police to gain access to privileged attorney-client communications and work-product materials, we use our supervisory powers to establish prospective procedural safeguards for searching the law office of an attorney who is suspected of a crime. We affirm McNeilly’s conviction.
Facts
Attorney Kristi McNeilly swindled a client, M.W., out of $15,000. In May of 2018, M.W. owned a townhouse in Minnetonka where he lived with J.S. (his then-boyfriend) and two renters. On May 1, 2018, a detective from the Minnetonka Police Department (the “Minnetonka detective”), working with the Southwest Hennepin Drug Task Force, executed a search warrant at the townhouse.
During the search, police found a vial of suspected drugs in M.W.’s safe, marijuana in J.S.’s possession, and methamphetamine in the possession of one of the renters. J.S. received a citation, the renter was arrested for methamphetamine possession, and although M.W. was not charged, the vial of suspected drugs was sent by law enforcement to a lab for testing.
At the time of the townhouse search, McNeilly was representing M.W. in a landlord-tenant dispute. M.W. and J.S. met with McNeilly to discuss the existing and potential criminal charges. At the meeting, McNeilly informed M.W. that she had spoken to someone at the prosecutor’s office who indicated that they were building a significant case against him. M.W. signed a retainer agreement with McNeilly and paid her $20,000 as required by the agreement. J.S. signed a separate, flat-fee retainer agreement and M.W. also paid that retainer fee.
The Minnetonka detective visited the home of M.W. in early July 2018. Following McNeilly’s advice, M.W. did not reveal what the substance in the seized vial was. Several months later, on October 29, 2018, McNeilly represented J.S. at a hearing regarding the marijuana possession; J.S. paid a $200 ticket for a paraphernalia citation. By November 5, 2018—more than 6 months after M.W.’s home was searched—M.W. had not been charged with an offense.
The swindle
M.W. and J.S. testified that, on November 5, 2018, McNeilly communicated with M.W., stating that it was urgent that they speak. McNeilly claimed that the Minnetonka detective and the prosecutor had asked to meet with her, which she suggested was a bad sign. A few hours later, McNeilly arrived at M.W.’s house and told M.W. and J.S. that she had been invited into the “back room,” where esteemed attorneys had the privilege to meet with authorities to make deals for clients that would not involve any charges. She described this as a big step in her career that meant she had “made it.”
According to M.W. and J.S., McNeilly claimed that a federal bug had been planted in M.W.’s house by a renter and subsequently removed by the Minnetonka detective when he spoke with M.W. in July. McNeilly claimed that M.W. faced 15–20 years in federal prison, but he could avoid charges if he paid $35,000 to the police union and acted as a conf dential informant. McNeilly showed M.W. a copy of a confidential informant form. When M.W. said he did not want to be an informant, McNeilly offered him a second option: pay $50,000 to the police union and no service as a confidential informant would be necessary. M.W. would pay McNeilly and she would deliver the money to the union.
M.W. agreed to the $50,000 option and indicated that he could pay $15,000 that day and the remainder in the next few months. McNeilly said she would have to check with the Minnetonka detective. She went to the garage—ostensibly to make a phone call—and emerged 5–10 minutes later claiming that he had agreed to the deal but that she would be on the hook for the remaining $35,000 if M.W. failed to pay. She also said that the money had to be transmitted to the union by 6 p.m. that same day. McNeilly drove M.W. to the bank and stood behind him while he got a $15,000 cashier’s check. She instructed him to write on the memo line “legal fees.” M.W. handed McNeilly the cashier’s check, which she immediately deposited into her account. M.W. testified that within a few days, he began to question this arrangement.
McNeilly claims that M.W. and J.S. fabricated this version of events. At trial, she maintained that the $15,000 was payment for legal services.
After the searches there were charges and a trial
Much of the evidence used at trial, however, was not obtained from the searches of McNeilly’s office and computer. The evidence unrelated to the office and computer searches included bank records, phone records, text messages and emails between McNeilly and M.W., as well as testimony from M.W., J.S., Paule, and several members of law enforcement. McNeilly has never identified any privileged communications or work-product material that were introduced into evidence.
McNeilly was convicted and sentenced to 366 days in prison, with a 3-year stay of the sentence. She appealed her conviction, and the court of appeals affirmed.
Office warrant
the office warrant did not authorize an unlimited search of McNeilly’s devices. Rather, the scope of the search of the computer authorized by the office warrant was limited to the items identified in the warrant that could be found on a computer: confidential informant forms; files, invoices, or documents associated with McNeilly’s representation of M.W. and J.S; and retainer agreements for M.W. McNeilly does not otherwise claim the items listed on the office warrant are insufficiently particular. Accordingly, we conclude that the office warrant was sufficiently particular.
The device warrant was also sustained.
Notably
We emphasize that unlike our prior decision in O’Connor and many of the federal decisions, in this case, the lawyer—not the lawyer’s client—is the target of the police investigation. This distinction is significant because the attorney-client privilege belongs to the client and not the attorney. It is the client that has the protected privacy interest, not the lawyer.
Thus
we turn to the question of the procedures necessary to safeguard the client’s interests—as recognized in O’Connor—when the lawyer is the target of the investigation.
In these circumstances going forward, all seized documents are presumptively privileged
The State can satisfy its initial burden to demonstrate that documents are neither privileged nor work product by establishing (without the prosecution team reviewing the documents) (i) that the documents fail to meet the elements of those protections; (ii) that the attorney-client privilege has been waived by the client or that the work-product protection has been waived pursuant to existing law; or (iii) that an exception to the privilege (e.g., crime-fraud) applies…
As a corollary to the presumption of privilege, review of files should be limited as much as practicable during the search process. For example, if a warrant authorizes seizure of a particular client’s file and the fact that it is a particular client’s file is clear without opening it, there is no need to open the physical file (or the relevant electronic file) during the search and before the privilege review by a neutral magistrate or designee or by a taint team as discussed below.
Taint team
If law enforcement uses a taint team to screen documents, the district court must, with input from the taint team, the attorney-defendant, and her clients who express interest, review and approve the process the taint team will use to ensure that sufficient safeguards are in place to protect from disclosure privileged communications and work product materials. The process must at a minimum ensure that:
(i) The taint team is disinterested, does not include any members of the investigation or prosecution team, and is walled off from the investigation and prosecution team;
(ii) The State strictly limits access to any material it holds to necessary personnel and controls are implemented so that the State knows which personnel have accessed the material;
(iii) Privilege determinations are made by attorneys; and
(iv) There is a meaningful opportunity for disputed privilege and work-product determinations to be adjudicated by the court (or another neutral magistrate or special master appointed by the court).
Procedures going forward for “taint teams” in such circumstances
The rule and remedy we announce today will apply prospectively to searches conducted after the date of the filing of this opinion. We do not apply these new rules to this case because the remedy—suppression of evidence obtained in the search—would not change the outcome. See supra at section II.B. We do not need to decide today whether the harmless error or constitutional harmless-error test applies to these new rules because, as explained above in section II.B, the outcome would not change even under the higher, constitutional standard.
ANDERSON, Justice (concurring).
I concur. I write separately to note the undecided constitutionality of taint teams in Minnesota.
THISSEN, Justice (concurring).
I join in the concurrence of Justice Anderson.
(Mike Frisch)