The following story is taken from news reports and contact with a defense counsel at Camp Pendleton, CA . And this is not a one-time event.
The same thing happened to this law firm some 20 years ago – see US v Calhoun, 49 MJ 485 (1998)
CAMP PENDLETON — Military investigators raided the Camp Pendleton offices of Marine defense attorneys last week, looking for a cellphone but also opening unrelated case files and potentially casting a pall over dozens of them.
Agents with the Criminal Investigative Division searched the Defense Services Organization’s offices on the North County base May 2.
“It’s definitely unacceptable,” said Marine Lt. Col. Clay Plummer, the regional defense counsel for the Western Region. He oversees the attorneys whose offices were searched.
Plummer compared the unusual event to investigators rummaging through the offices of civilian public defense attorneys. “We are a public defender,” he said. “Just the thought of them going through our case files is unacceptable.”
Agents found the cellphone within 30 minutes, but stayed an additional two hours, searching the offices and opening files kept by defense attorneys not related to the case involving the phone, Plummer said. None of the attorneys present was allowed to leave during the search.
Camp Pendleton officials released a statement Friday afternoon acknowledging that a search of defense attorneys’ offices is “a rare event.” The base commander, Brig. Gen John Bullard, has appointed a judge advocate to “identify whether any potentially privileged material was improperly disclosed,” the statement said.
The search was authorized by an appropriate commander, according to the statement. Base officials declined to comment further.
Attorneys in the office represent service members accused of matters ranging from minor violations of military law to murder.
Plummer said the defense attorneys involved would notify their clients of the incident. They will also litigate the issue in court, so that judges can determine whether violations occurred and decide on remedies.
The criminal case involving the cellphone has reached the Article 32 stage, which is the equivalent of a preliminary hearing in California criminal court.
Plummer declined to give details of the case, but said the government knew the military defense attorney was in possession of the phone — and that the lawyer was asserting that it was protected under attorney-client privilege.
Such privilege “can only be broken under limited circumstances — and searching for a cellphone is not one of them,” Plummer said.
A search of defense offices is “absolutely extraordinary,” military law expert Gary Solis said, adding that he had never heard of it happening in any service branch during his more than four decades of association with military law.
“Authorize a search warrant for defense offices? It would never cross my mind because of the lawyer-client relationship, which is so integral,” said Solis, a former Camp Pendleton Marine attorney and judge who now teaches military law.
“Every citizen knows that attorney-client communications cannot be invaded by the government,” he said. “That alone makes this such a unique and unusual event. What magnifies the issues involved are that so many cases are now affected.”