Listening to Defendant’s Phone Calls to His Attorney is Okay so long as You Say You Didn’t Really Hear Anything.

State v. Andersen, Minn.S.Ct., 6/30/2010.  A jury convicted Mr. Andersen of first degree premeditated murder of Chad Swedberg.  Mr. Swedberg was apparently shot from some distance while at his maple syruping camp. 

Police searched Andersen’s property pursuant to a search warrant; they found a rifle that may have been the murder weapon.  Mr. Andersen moved to suppress the rifle and other evidence that the officers found.  To prevail, he must show that the affidavit in support of the search warrant contains intentional or reckless misrepresentations of fact that are material to the finding of probable cause to issue the warrant.  State v. Moore, 438 N.W.2d 101, 105 (Minn. 1989) (discussing and applying the two-prong test developed in Franks v. Delaware, 438 U.S. 154, 171-72 (1978)).  The appellate court first decided what the standard of review was and announced that the intentional/reckless misrepresentations is reviewed under a clearly erroneous standard, while materiality is reviewed de novo.  Applying this newly announced standard, the appellate court concluded that the application established probable cause so it was not necessary to determine the misrepresentations question.

In the run up to trial, various police investigators listened to telephone calls that Mr. Andersen made to his attorney’s cell phone.  The officers insisted that as soon as they realized that the calls were to an attorney they stopped listening.  Mr. Andersen said that the state should be required to prove that none of the state’s evidence derived, directly or indirectly from those phone calls.  Now, an intrusion into the attorney-client relationship does not, by itself, constitute a violation of the Sixth Amendment.  Weatherford v. Bursey, 429 U.S. 545 (1977).   The federal courts have articulated various tests by which to determine whether there has been a Sixth Amendment violation, but the appellate court here adopts none of them.  Rather, it’s satisfied with the trial court’s findings that the cops stopped listening once it was determined that it was an attorney call, that they heard nothing relating to the case, and that no one else overheard anything relating to the case.  Everyone got that? 

Three justices concurred in the result but continued to disagree with the majority’s standard of review of convictions based on circumstantial evidence.  See State v. Stein, 776 N.W.2d 709, 719 (Minn. 2010) to read up on this.  These same three justices would also support instructing the jury on the law of circumstantial evidence.