Is a prison “kite” protected by the attorney-client privilege?

People v. Superior Court of Santa Cruz County (Cal. Ct. App., Jan. 12, 2023, No. H049188) 2023 WL 167078, at *1–2

 Summary: Is a suspected inmate “kite”—a written message sent in violation of jail rules— covered by the attorney-client privilege when it is contained in an envelope sent by an inmate to his attorney?  Because the inmate here did not establish the kites are a confidential communication to his attorney, the attorney-client privilege does not apply. The Court issued a peremptory writ of mandate requiring the Superior Court to vacate its order finding otherwise.

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Real party in interest Jason Joel Cortez was an inmate at the Santa Cruz County Jail, awaiting trial on charges he committed murder in the jail for the benefit of a criminal street gang. The District Attorney alleges that while detained on another matter, Cortez and a codefendant fatally strangled their cellmate, German Carrillo.

Seizure of kite in attorney client mail

A  kite is a clandestine note usually written on a small piece of paper in very small print and used by an inmate to communicate with another person either inside or outside of the jail. Kites are rolled up and often wrapped in plastic to minimize their size and to facilitate concealment in an inmate’s clothing, mouth or rectum. Kites are considered a jail security risk because inmates may use them to communicate about smuggling contraband or to plan assaults on other inmates.

Here, a correctional officer at the jail intercepted what he believed to be kites in outgoing mail sent by Cortez. Jail personnel routinely search outgoing inmate mail for contraband. Mail from an inmate to an attorney is also searched, but a special procedure is used to preserve confidentiality. The legal mail is opened in front of the inmate who sent it; the envelope’s contents are visually inspected but any written communication is not read. Here, the correctional officer was inspecting outgoing mail when he examined an envelope from Cortez addressed to his attorney. Suspecting the envelope contained contraband, he opened it to see what was inside. He did not do so in front of Cortez because he did not believe the envelope actually contained legal mail

The officer opened the envelope and  found another envelope fashioned from the lined yellow paper sold at the jail commissary. The officer opened it and found what appeared to be multiple kites. Each kite was made from differently colored paper and each had different writing, leading the officer to believe they were written by different people.

When the attorney for Cortez’s codefendant learned jail staff had intercepted the envelopes, he moved to continue the preliminary hearing. The Santa Cruz County District Attorney petitioned this court for a writ of mandate vacating the trial court’s decision that the documents are privileged.

Attorney-Client Privilege

“The attorney-client privilege only protects communications between attorney and client made for the purpose of seeking or delivering the attorney’s legal advice or representation.” (Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2 Cal.5th 282, 293 (Board of Supervisors).)  “The privilege does not apply to every single communication transmitted confidentially between lawyer and client. Rather, the heartland of the privilege protects those communications that bear some relationship to the attorney’s provision of legal consultation.” (Id. at p. 294.)

A reviewing court reviews a court’s factual findings made in deciding whether documents constitute a confidential attorney-client communication for substantial evidence.

In camera review of documents

Because the testimony of the correctional officer suggested the envelopes contained writings that were not confidential attorney-client communications and Cortez failed to satisfy his threshold burden to support the exercise of attorney-client privilege, the magistrate examined the documents in camera to ascertain what they are. The Judge found they were kites gang members use to communicate with other members and noted they were addressed to people other than Cortez’s attorney. Those findings support the conclusion that the small, handwritten notes smelling of feces inside the yellow interior envelope are not confidential communications to an attorney, but rather were written to be read by others. Cortez’s assertion of privilege based merely on his use of the jail’s legal-mail channel did not satisfy his threshold burden to present preliminary facts supporting its application. A conclusory assertion of privilege is insufficient to make the required prima facie showing. The initial ruling from Judge Cogliati correctly determined the documents are not privileged because they are not a confidential communication to an attorney. Judge Burdick’s order setting aside that ruling incorrectly found the attorney-client privilege applied even in the absence of the required threshold showing.

In evaluating whether the attorney-client privilege applies to the documents at issue here, it is irrelevant whether the jail violated any applicable statute or regulation by opening the envelope and examining its contents outside Cortez’s presence. (See Pen. Code § 2601, subd. (b) [providing that inmates have the right to confidential correspondence]; (Cal. Code Regs., tit. 15, § 3142 [requiring that confidential mail be opened in the presence of the inmate]; see also In re Jordan (1972) 7 Cal.3d 930, 934, 103 Cal.Rptr. 849, 500 P.2d 873 [regulation allowing prison staff to open and read any outgoing mail violated inmate right to confidential communication].) Even if the jail violated the regulation requiring legal mail to be opened in the inmate’s presence, the remedy would not automatically render everything inside the envelope—including communications originally intended for people other than an attorney—subject to the attorney-client privilege. The only question in this petition is whether the attorney-client privilege applies.

How the writings came to be disclosed would be important if they were confidential attorney-client communications and a waiver of the privilege were being claimed. But that is not the situation presented here.