In a case being watched by both the cannabis and legal communities nationwide, attorney Jessica McElfresh and her legal team scored two modest victories last week.
In a pre-trial hearing in San Diego Superior Court, Judge Laura W. Halgren ordered the return of McElfresh’s seized medical records and set a schedule for the attorneys in the case to file further briefs.
The major issue of the briefs requested by the judge is how the long-established concept of attorney-client privilege applies in this case. McElfresh had worked with hundreds of clients during her seven years practicing cannabis law. The current lawyers for many of those clients have expressed to Judge Halgren their claim that attorney-client privilege applies to paper and electronic files seized during a search of McElfresh’s home and office.
McElfresh is charged with several felonies in the case against Med-West, a San Diego medical marijuana company that was raided by law enforcement in January 2016. The district attorney alleges McElfresh, among other things, conspired with Med-West ownership and staff to conduct and conceal illegal cannabis extraction operations. She has entered a not guilty plea to all charges.
Stacy Hostetter is an associate attorney at the Law Offices of Omar Figueroa, a prominent cannabis legal firm. She flew to San Diego from Northern California to appear in court on behalf of the National Cannabis Bar Association (NCBA). The NCBA plans to file an amicus (“friend of the court”) brief in support of a ruling from the bench that upholds attorney-client privilege.
Before the proceedings, Hostetter explained the goals of her trip.
“I’m hoping that the judge will be discussing what she wants briefed with regards to attorney-client privilege,” she said. “There’s a question about how that works and what the process should be moving forward in this case. It’s nice to be able to get an idea of where she stands preliminarily, that way we can address her specific concerns.”
Eugene Iredale, McElfresh’s criminal defense attorney, sensed support from Judge Halgren for limiting the scope of the prosecution’s search of McElfresh’s computer files. Iredale believes that the D.A.’s request for a broad search is prosecutorial overreach.
“With respect to attorney-client privilege, it is the prosecution’s somewhat peculiar, Pickwickian interpretation of the warrant that is mostly problematic. And that is, they say ‘We can go through every file, we can look in every file that was seized, regardless of whether it was mentioned in the warrant application, regardless of whether there was a finding of probable cause, regardless of the scope of the warrant,’ and fortunately, it appears that rather unusual view is not going to prevail,” said Iredale after the hearing.
Iredale was also encouraged by the judge’s order that medical records taken by the government be returned to McElfresh.
“The seizure of her personal medical records was lunatic. It’s inexplicable. It’s the grossest of overreaches. It has nothing to do with anything,” he said. “It’s an example of the overreach, the totalitarian nature of the search warrant and the theory by which the prosecution claims a right to invade every file of every client to search through to find some potential or speculative evidence against her. It’s unprecedented.”
The judge also requested legal briefs on how a search of location data contained in McElfresh’s mobile phone should be accomplished. The prosecution wants access to all GPS data on her phone for a period of three years.
Iredale sees this request as beyond the scope of the warrant and another example of over-zealous prosecution from the D.A.’s office.
“The second aspect of what they’re seeking is truly, outrageously over-broad,” he said. “And that is, they want to know every search she did for three years, every website she visited, every social media app, everything that she has in her computer. Incredible.”
Iredale believes the judge may limit the search to locations specified in the warrant, based on her comments and questions.
Jessica McElfresh, while pleased with the outcome of the hearing, was also visibly frustrated with the ordeal she is going through.
“I am still disturbed that the D.A. keeps trying to expand this into a further search of files not related to the warrant,” she said. “I appreciate that the judge has to hear everyone out, but this has been going on now for a while. I think it’s time that they stop trying to get into more of my files than could ever be covered by the warrant.”
Judge Halgren has asked for briefs and replies from both sides by September 15. She is expected to rule on the matters at a hearing scheduled for September 27.