Shrier

*405 Opinion

What is the appropriate judicial remedy for interference with the right to counsel by law enforcement agents who intentionally eavesdrop on attorney-client privileged communications? A magistrate ordered outright dismissal of the criminal case. This surely would have a deterrent effect upon law enforcement agents. We balance the competing rights at stake and conclude that dismissal is too drastic and would be “judicial overkill.” Exclusion of overheard communications and any derivative evidence flowing therefrom is the appropriate remedy. This should deter overzealous law enforcement agents as there is nothing to be gained by such unlawful activity. At the same time, the Attorney General’s client, the People of the State of California, will not be stymied in their attempt to enforce criminal law and recoup public money allegedly “stolen” by respondents.

The People appeal from the superior court’s order denying their motion to reinstate a felony complaint pursuant to Penal Code section 871.5. 1 Prior to the preliminary hearing, a magistrate dismissed the complaint concluding that intentional eavesdropping by special agents of the Department of Justice was so…