Central Wyoming Law Associates, PC v. Denhardt, 93-CV-1011-B.

• Decision Date: 28 October 1993
• Docket Number: No. 93-CV-1011-B.,93-CV-1011-B.
• Citation: 836 F. Supp. 793
• Parties: CENTRAL WYOMING LAW ASSOCIATES, P.C., formerly Hursh and Donohue, P.C., d/b/a Hursh, Donohue & Massey, P.C., a Wyoming professional corporation, Plaintiff, v. The Honorable Robert B. DENHARDT, in his capacity as County Court Judge of Fremont County, Wyoming, and William Flagg, in his capacity as County Attorney of Fremont County, Wyoming, and those acting under his direct supervision, Defendants.
• Court: U.S. District Court — District of Wyoming

836 F. Supp. 793

CENTRAL WYOMING LAW ASSOCIATES, P.C., formerly Hursh and Donohue, P.C., d/b/a Hursh, Donohue & Massey, P.C., a Wyoming professional corporation, Plaintiff, v. The Honorable Robert B. DENHARDT, in his capacity as County Court Judge of Fremont County, Wyoming, and William Flagg, in his capacity as County Attorney of Fremont County, Wyoming, and those acting under his direct supervision, Defendants.

No. 93-CV-1011-B.

United States District Court, D. Wyoming.

October 28, 1993.

COPYRIGHT MATERIAL OMITTED

Michael J. Krampner, Casper, WY, John R. Hursh, Riverton, WY for plaintiff.

Hugh L. Kenny, Sr. Asst. Atty. Gen., Elizabeth Zerga, Cheyenne, WY, for defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

BRIMMER, District Judge.

The above-entitled matter having come before the Court upon defendants' Motions for Summary Judgment and the plaintiff's Motion for Declaratory Relief, and the Court having reviewed the materials on file herein both in support of and in opposition to, having heard oral argument from the parties, and being fully advised in the premises, FINDS and ORDERS as follows:

Background

Central Wyoming Law Associates ("CWLA") filed this suit against The Honorable Robert Denhardt, a Fremont County Judge, for allegedly issuing a search warrant in violation of the Fourth Amendment, and against William Flagg, the Fremont County attorney, and the county attorney's office for seeking and executing this warrant. The search warrant authorized the search of confidential client files belonging to CWLA, as well as the seizure of a particular document alleged to be in one of those files.

The essential facts are undisputed. On or about November 16, 1991, a minor referred to as "L.H." was arrested and placed in jail in Fremont County pending juvenile proceedings. While L.H. was incarcerated, he alleged that he was physically and sexually assaulted by other prisoners in the jail.¹ Soon after this incident, Mr. Daniel Massey, an attorney employed by CWLA, entered into an attorney-client relationship with L.H. for purposes of representing him during the juvenile proceedings. Shortly thereafter, L.H. told Massey that he had been assaulted while in jail, and L.H. and his parents then asked Massey to investigate these claims for purposes of determining whether L.H. might have a valid claim for damages against the Fremont County sheriff's office.

Several months later, in the early part of 1992, Massey spoke to another minor known as "R.F.," who shared a cell in the Fremont County jail with L.H. in November of 1991. R.F. told Massey that he had firsthand knowledge of the assault on L.H. At that time, R.F. gave Massey a statement that Massey memorialized and had R.F. sign.²

Sometime later in 1992, Fremont County deputy sheriff John "Jack" Coppock, acting with the advice and assistance of deputy county attorney Ed Newell, began a separate investigation on behalf of Fremont County into L.H.'s allegations of physical and sexual assault. Coppock attempted to locate R.F. based on information that he was given from R.F.'s mother, but that information was inaccurate, and he was never able to locate R.F. to ask him about this incident.³ Coppock then phoned L.H. to speak to him directly about what had happened, but L.H. and his parents refused to speak to Coppock. They told him that their attorney, Dan Massey, advised them not to speak to anyone, including the authorities, about L.H.'s assault.

Coppock, with the assistance of deputy county attorney Newell, decided that he would prepare an affidavit in support of a search warrant in an effort to obtain a copy of the statement that R.F. gave to Massey.⁴ The affidavit was subsequently prepared and presented to Judge Denhardt on December 31, 1992. Denhardt then placed Coppock under oath and Coppock swore under oath that the representations in his affidavit were truthful. Denhardt apparently concluded that the affidavit provided sufficient facts to support a finding of probable cause, and therefore, issued the search warrant.⁵

The warrant described the premises to be searched as "the law offices of Hursh, Donohue & Massey, P.C., being a brown 1 story building at 105 South 6th East, Riverton." The property that was the subject of the warrant was described as "written and/or typed statements by R.F. concerning an alleged assault against L.H. which occurred in the Fremont County Jail." After issuing the warrant, Denhardt "suggested" to county attorney Newell that he accompany Coppock to the premises in order to oversee the execution of the warrant.

Coppock, accompanied by several other deputies, executed the warrant later that day. Upon their arrival at CWLA's law offices, Coppock knocked on the door. He showed Donald Rissler, an attorney of CWLA, the warrant and told him to produce the statement. Rissler, concerned over the legality of a search of an attorney's confidential files, asked the officers to wait a little while so he and several other CWLA attorneys who were present could do some legal research on the validity of this warrant. After an hour or so, Rissler attempted to reach a judge in Fremont County in an effort to prevent the warrant from being executed. His efforts were unsuccessful, however, primarily because it was New Year's Eve and he could not locate a judge.

Approximately two hours later, Rissler produced an unsigned, draft copy of a statement that Massey had prepared regarding his conversation with R.F. Coppock accepted this draft copy based on the representations of the CWLA attorneys present that they would produce the final, signed version when it was found.⁶ Coppock then gave a receipt for the statement pursuant to WYO. R.CRIM.P. 41(e). At no time did the executing officers ever physically rummage through the files of CWLA. R.F.'s statement was produced by Rissler and handed to Coppock without Coppock or any of the other deputies ever handling CWLA's files.

Since Coppock only obtained a draft copy of R.F.'s statement, and not the final, signed version, CWLA immediately filed an action in state court seeking a temporary restraining order against any further searches of their office for the signed statement. A restraining order was issued by the state district court and the signed statement of R.F. was filed with the state court under seal pending further hearing, which never occurred. While the restraining order is technically still in effect, the subject matter of that order, the December 31, 1992 warrant, has expired because according to its own terms, it was only valid for ten days.

Since the time that the warrant was executed, CWLA alleges that Ed Wall, another deputy county attorney, has threatened Lori Gorseth, another CWLA attorney who works for Massey, by telling her that he would obtain subpoenas and search warrants for other files of hers which contained confidential information. Plaintiffs note specific examples of these threats.

Plaintiffs allege that on January 20, 1993, Detective Dale Adams requested certain confidential information from Gorseth regarding a client of CWLA. When she called Wall, he allegedly threatened to get a search warrant for the documents if she did not comply with Adams' request. Then, a few weeks later, Wall served a subpoena on Gorseth commanding her to testify for the prosecution regarding a then-pending criminal prosecution of a client formerly represented by CWLA. Then, sometime in February or March, 1993, Gorseth obtained a copy of an unsigned affidavit and an unissued search warrant prepared by the county attorney's office for the confidential information that Wall allegedly threatened to obtain from Gorseth through a search warrant. Finally, on April 1, 1993, Wall allegedly threatened to have Gorseth thrown in jail if she did not comply with his requests, and allegedly further threatened to use his powers to obtain search warrants for documents that he wanted.

Defendants dispute the plaintiffs' characterization of these so-called threats, and further contend that no other "threats" have been made since the April 1 incident.

This lawsuit was then initiated five days after this last incident between Wall and Gorseth. Plaintiffs' complaint sought a declaratory judgment that the search warrant was per se invalid on two grounds: (1) Coppock's affidavit was insufficient to enable Judge Denhardt to conclude that probable cause existed, and (2) the warrant did not describe the items to be seized with particularity as required by the Fourth Amendment. The complaint also sought a prospective injunction seeking to enjoin Denhardt from issuing, and the County attorney's office from seeking, any search warrant for CWLA's offices involving confidential client files. Plaintiffs also sought an order of return to have the state return any and all documents seized during the December 31, 1992 search, as well as attorney's fees and costs.

Defendants have moved for summary judgment alleging several grounds in support thereof. They initially argue that CWLA has no standing to bring these claims because the claims belong to Hursh, Donahue & Massey, and not CWLA. In essence, they contend that CWLA is not the real party in interest under FED.R.CIV.P. 17(a). As to the validity of the search warrant, they argue that there was probable cause under the "totality of the circumstances" standard of Illinois v. Gates, 462 U.S. 213, 231-32, 103 S.Ct. 2317, 2328-29, 76 L.Ed.2d 527 (1983), and that the warrant did meet the particularity requirements of the Fourth Amendment, citing, inter alia, Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976). As far as the prospective injunction, they strenuously contend that the plaintiff has failed to make the necessary showing that it has standing to pursue this claim, and therefore, the defendants contend that summary judgment is warranted on that claim as well.

Plaintiff filed a combined opposition to the...