Protection of Privileged Information from Search Warrant

A privilege is a legal right that a certain class or group of individuals have from revealing information to the public, police or courts. The classes comprise professionals, including doctors and lawyers, the media and religious figures. Each of these groups deal with the public in various ways either as clients, patients, parishioners, or news sources.

The protected privilege information is acquire by these various professionals in the performance of their various duties and responsibilities connected to their interaction with the public. The information protected is confidential because of the relationship of the parties and the need to acquire sensitive information that couldn’t be divulged or acquired by others without sacrificing the open and free exchange of information necessary to fulfil the professional responsibility of those receiving the information from their clients, or patient, news sources, or parishioners

This Privileged information that need not be divulged is also protected from searches and seizures by the police or other governmental officials provided there is no wrong doing suspected by the professional or other person who has received the information and has the privilege.

Privilege of Newsperson.

Press and the Media have a privilege that protects them from being the subject of a search warrant. That privilege prohibits the issuance of warrants for most items in their possession. It grants employees of periodical publications and radio and television stations immunity from being held in contempt of court in refusing to disclose either sources of information or unpublished information to litigants during court proceedings. [1]

Attorney-client Privilege

The attorney client privilege is one of the most important privileges and protects attorneys from revealing information received from client’s during their relationship, and prevents the information from being seized through a search warrant. “[T]he fundamental purpose of the attorney-client privilege is the preservation of the confidential relationship between attorney and client, and the primary harm in the discovery of privileged material is the disruption of that relationship . . . .”[2]

It is believed the societal benefit outweighs the potential harm in non-disclosure of information received from clients by attorney’s which is held in trust for their clients. “Adequate legal representation in the ascertainment and enforcement of rights or the prosecution or defense of litigation compels a full disclosure of the facts by the client to his attorney.”[3]

Physician, Psychotherapist, or Clergy.

This group has a similar privilege from revealing confidential communications. And as with attorneys these individual are also protected from issuing search warrants for documentary or other evidence “in the possession or under the control of” physician, psychotherapist, or member of the clergy. As with attorneys they must not be “suspected of engaging or having engaged in criminal activity related to the documentary evidence.” [4]

The nature of these privileges require a statutory structure protecting those exempted from searches by police. Statutes require that a neutral special master be appointed to help police serve a search warrant on an attorney, physician, psychotherapist or member of the clergy who may possess documentary evidence believed to relate to a criminal case. [5]

The special master is appointed to protect the privilege between the professional and his or her client, patient or congregant. Empowered to seize any items in the warrant, the special master accompanies police officers and conducts the search. He seals and keeps possession of the privileged items until a hearing is held, usually within three days, to determine if they are privileged. Review of the documents is left to the judge.

These privileges or exemption from searches and seizures are narrowed to only four professions which are attorneys, physicians, psychotherapists, and clergymen—and defines them by reference to Evidence Code provisions on privileged or confidential communications. [6]

[1] Section 1524(g) of the California Penal Code; PSC Geothermal Services Co. v. Superior Court (1994) 25 C.A.4th 1697, 1705, 31 C.R.2d 213

[2] Fireman’s Fund Ins. Co. v. Superior Court (2011), 196 Cal. App. 4th 1263, 1272.

[4] Section 1524(c) of the California Penal Code

[5] Sections 1524 (c)-(f) of the California Penal Code

[6] Geothermal Services Co. v. Superior Court (1994) 25 C.A.4th 1697, 31 C.R.2d 213