Defense attorney Gerald Wear was meeting with a client Aug. 22 at his downtown Vancouver office when two Vancouver police detectives walked in and served him with a warrant to search a cellphone used by Wear's client, Andrew R. Hayes, accused of killing a 1-year-old girl.
Wear said he was shocked because neither police nor the prosecutor in the case had called him to request the phone.
"I've been doing this since 1975," he said. "I've never had a search warrant served on me or my office. It's an extraordinary measure."
Wear begrudgingly agreed to turn the phone over to detectives at a court hearing Monday in order to avoid a search. He said he was deeply concerned about the court's authorization of a search. He said the surprise search warrant was indicative of a larger problem in the county's court system: a lack of procedure for obtaining evidence from defense attorneys.
Wear said investigators or Senior Deputy Prosecutor Alan Harvey should have made an informal request for the phone or at least given him warning that a search warrant would be served. The warrant gave police the power to rummage through Wear's office in search of the phone during which time they would likely have seen clients' confidential documents, Wear said.
The attorney-client privilege of his clients and possibly those of the other two attorneys who share an office with him might have been jeopardized, Wear said. He also complained that authorities have still not allowed him to see the affidavit supporting the search warrant.
On the day the warrant was served, Wear called Harvey and told him the phone wasn't in his office but at another location with his private investigator, Ron Miller. Harvey drove to Wear’s office to discuss Wear’s concerns. Detectives John Ringo and Troy Price and Harvey agreed to postpone the search and give Wear a few days to research ethical issues related to surrendering the phone.
"Had the cops been a little less reasonable, they could have turned my office upside down and compromised (client-attorney-protected) records," Wear said.
The confrontation highlights gray areas in state law about defense attorneys' obligations to hand over evidence and what procedures investigators should follow to obtain that evidence from defense counsel.
Attorneys are required by law to protect their clients' secrets, but they also are prohibited from obstructing justice, said Vancouver attorney Mark Muenster of the Washington Association of Criminal Defense Lawyers. They may not alter or tamper with evidence. If an attorney has physical evidence of a crime, he or she must turn it over to law enforcement, while simultaneously protecting attorney-client privilege. One of the only ways to do that is to hire another attorney to deliver the evidence to law enforcement without disclosing the source, Muenster said.
Wear said in his case, he didn't know if the phone contained any evidence, either incriminating or exculpatory, because he and Miller, the private investigator, hadn't had a chance to review the phone's contents.
No clear procedures
Courts have no clear procedures for going about obtaining evidence from defense attorneys, said Superior Court Judge John Nichols, who authorized the search warrant. State law doesn't spell out how it should be done. Judges typically follow case law, which has few, if any, references to digital evidence, Nichols said.
Wear said giving police the power to search a defense attorney's office is "dangerous" and has "a chilling effect on attorney-client privilege."
He called on county judges, with the participation of prosecutors, criminal defenders and police, to come up with less intrusive procedures to obtain evidence from defense attorneys.
He suggested alternatives, including calling the defense attorney to request evidence, before seeking a warrant, issuing a subpoena or using an impartial mediator or magistrate to decide what has to be turned over.
The phone belongs to the victim's mother, Emilee Smith, who gave it to Hayes to use on a regular basis.
Phone key to case?
Investigators believe the phone may contain information about what happened to the victim, Amya Gibson, on the day she died.
Investigators searched for the phone at Hayes' home in Portland and on Hayes' person without success. Recordings of Hayes' jailhouse calls revealed that Wear had the phone, Harvey said.
Nichols authorized the warrant for a search of the cellphone alone and not a search of Wear's office.
"Detective Ringo … indicated he had a lot of respect for you and that he wasn't going to go in there with guns blazing and just kind of make the request (for the phone)," Nichols told Wear.
Harvey said a search warrant is the mechanism for obtaining evidence in such cases.
"We treated Gerry just like everyone else, and we tried not give him any special treatment," Harvey said. "We engaged in self-restraint, and we handled it appropriately."
Hayes, 24, was baby-sitting Amya when she died May 29. He has been charged with first-degree manslaughter in her death.
The Clark County Medical Examiner's Office determined that Amya died of human-inflicted blunt-force trauma, a conclusion Wear has said he plans to challenge.
Hayes told police that Amya died after falling off of a bed.
Hayes' trial is tentatively scheduled for Sept. 16.