Attorney-client privilege; MCL 767.5a(2); MRE 501; MRPC 1.6 & 1.9; Due process; United States v Kennedy (10th Cir); The exclusionary rule; Mapp v Ohio; The due-process test involving attorney-client communications; “Outrageousness”; United States v Voigt (3d Cir); Whether suppression of the evidence was an appropriate remedy

Holding that the government violated defendant’s right to due process, and suppression of the physical evidence was an appropriate remedy, the court affirmed the trial court’s suppression of that evidence. He was charged with first-degree arson and torturing or killing animals after his home was set on fire and his two dogs died in the blaze. He moved to suppress an email he sent to an employee of his defense counsel’s law firm in which he shared the names of the individuals to whom he had given his lawnmower and gas can on the basis it was protected by the attorney-client privilege, as well as the derivative evidence obtained from it. The trial court found the email was not privileged and denied his motion. In a prior appeal, the court reversed and remanded for the trial court to “address defendant’s contention that there was a constitutional violation requiring suppression of the derivative evidence via the fruit-of-the-poisonous-tree doctrine.” On remand, the trial court suppressed the evidence. In this interlocutory appeal, the court rejected the prosecution’s argument that the trial court erred by “constitutionalizing” the attorney-client privilege. It found that the trial court did not constitutionalize the privilege, and adopting Voigt’s three-part test, held that the government’s actions here violated defendant’s right to due process. “The government knowingly breached defendant’s attorney-client privilege. Rather than try to mitigate the breach, the government deliberately used information obtained from the privileged communication to obtain incriminating physical evidence. The government then charged defendant with several crimes, and it made clear that it intended to use the physical evidence at trial.” The record on appeal confirmed “that the government knew of the privilege; deliberately intruded into it; and defendant was actually and substantially prejudiced. This constituted a violation of due process, not just the common-law privilege.” As such, suppression of the physical evidence was the appropriate remedy. “The evidence obtained by the government in violation of defendant’s right to due process is readily identified and isolated, so suppression is a straightforward remedy. Moreover, with respect to the violation itself, although presented in a rather matter-of-fact set of stipulated facts, a moment’s reflection shows how brazen the government’s actions were in this case.”