Client Privacy Invaded, Court Rules : DeMassa Wins Part of Battle Over Search of His Files

The 9th Circuit Court of Appeals ruled Friday that a portion of a 1983 search of San Diego attorney Phil DeMassa’s files by federal officials was illegal because it violated DeMassa’s clients’ right to privacy.

In an eight-page opinion, the justices wrote that the “attorney-client privilege confers upon the client an expectation of privacy in his or her confidential communications with the attorney” and noted that this is a “hornbook rule” that has never been disputed.

DeMassa and four of his clients had asked the court to rule on two matters in a petition filed on Dec. 6, 1984. The petitioners included defendants on drug charges who are represented by DeMassa and Hells Angel leader Sonny Barger.

The court’s ruling in the first matter represented a setback to U.S. Atty. Peter K. Nunez, whose office had argued that DeMassa’s clients only had a right to challenge the search of DeMassa’s law office and not of the files. Nunez had argued that the clients “had no possessory or ownership interest in their files.”

The government’s arguments were called “invalid” by the appellate court, which said that “it is clear that neither ownership nor possession is a necessary or sufficient determinant of the legitimacy of one’s expectation of privacy.”

“Because the Fifth Amendment’s protection against testimonial self-incrimination may be threatened by the act of disclosure of legal files, that constitutional guarantee also supports the clients’ legitimate expectations of privacy,” the opinion said.

The case has its roots in a search of DeMassa’s office and home by federal investigators that lasted from April 19 to April 21, 1983. Drug Enforcement Administration agents and Internal Revenue Service investigators, acting with a search warrant issued by U.S. Magistrate Roger McKee, confiscated 95 cartons of documents during the search, including more than 1,100 of DeMassa’s case files.

DeMassa had been implicated in drug smuggling activities by Louis Villar, a major figure in the Coronado Company smuggling ring who turned government informant. Villar, who had previously been represented by DeMassa, told federal investigators that DeMassa was involved in the ring’s drug smuggling schemes.

Lawyers for DeMassa argued that the search was unconstitutional because the agents confiscated items not covered by the warrant, and U.S. District Judge Robert J. Kelleher agreed. Kelleher also ruled that DeMassa’s clients, particularly those whose cases had nothing to do with the Coronado Company’s drug conspiracy, would face irreparable harm if prosecutors were to have free reign to search the 95 cartons and peruse their files.

Although Kelleher ordered all of the cartons sealed, he also ruled that DeMassa’s clients were not entitled to get their confiscated files. Friday’s ruling by the 9th Circuit Court said that Kelleher erred by not allowing the clients an opportunity to argue for the release of their files.

Brad Battson, DeMassa’s Los Angeles attorney, said that Kelleher will now have to determine which files can be released to DeMassa’s clients.

“What’s going to happen now, we will have to go back to Judge Kelleher and he will have to go through the files to determine which files belong to the clients and which files are covered by the search warrant. Those not covered by the search warrant will have to be returned,” Battson said.

Nunez’s secretary said he had no comment on Friday’s ruling because prosecutors had not read the opinion.

In the second matter acted on Friday, the justices denied a petition by DeMassa for a hearing on a November, 1984, decision by the court that DeMassa could not appeal the search of his office and home until the conclusion of his upcoming criminal trial.

While Kelleher had ruled that the search was illegal because the search warrant was too broad, he also ruled that the government was entitled to files pertaining to DeMassa’s alleged ties to the Coronado Company. Kelleher appointed a special master to determine which files were to be handed over to prosecutors and which were to remain sealed.

DeMassa’s attorneys wanted Kelleher to rule the entire search illegal, including the search of any files pertaining to DeMassa’s alleged ties to the Coronado Company. Kelleher refused, and his decision was upheld by the 9th Circuit Court in November. DeMassa is scheduled to go to trial Oct. 1 in federal court in San Diego.