Defense attorney Shon Bogar returned to his downtown Vancouver office from lunch Wednesday and was greeted by three officers from the Vancouver Police Department.
He routinely meets with police, but this time, the officers were there to serve him with a search warrant, an unusual occurrence that Bogar found highly offensive.
The officers sought a cellphone that Bogar obtained during his investigation into a domestic violence rape allegation. He was appointed to the case Monday in Clark County Superior Court. His client says he had consensual sex with his longtime girlfriend and denies the allegation.
“They could have taken easy steps to preserve any evidence while still allowing me to do my job in the manner I am constitutionally required to do. They chose a different path,” Bogar wrote in an email to The Columbian on Thursday.
The search warrant, signed by District Court Judge John P. Hagensen, gave police the authority to search Bogar’s person, his office, briefcase, vehicle, or secured compartment such as a safe.
“It’s unusual; it’s certainly not the norm,” Vancouver police Lt. Troy Price said of the situation in a phone interview. “But it’s also not the norm that we find out that the defense has a piece of evidence that we need for a criminal investigation.”
He understands why Bogar would be upset, though.
“I do see where it can cause some friction. Because it happens so rarely, people are surprised when we show up with a search warrant. No one enjoys having a search warrant served on them, but we do it as professionally as we can,” Price said.
“(Citizens) expect us to bring people to justice and to put together the best criminal case possible. We go wherever the evidence is and retrieve that evidence. … It’s extremely rare we have to go to the defense attorney and ask for evidence, and the process is the same, which is by way of a search warrant,” he explained. “We wouldn’t deviate from normal procedures.”
Bogar argues that police should have called him before obtaining a search warrant. He believes law enforcement learned about the phone by listening to jail phone calls between his client and the client’s father, a routine procedure that is legal.
All three police officers who served the warrant were professional, Bogar said, and did not “toss” his office, according to a motion he filed. He told the police that the phone was with his investigator, and they subsequently got the phone from him.
Price said the police had no intention of searching Bogar’s office, but with the search warrant, it gave them legal standing if they were met with resistance.
“It gives us a little bit of room to talk about how to retrieve that evidence,” he said. It also doesn’t put the defense attorney in a situation where he willingly hands over evidence that could hurt his client, Price added.
Bogar didn’t get a chance to examine the phone, he said, and doesn’t know if it holds any evidentiary value.
“As an officer of the court who has never had anyone question my handling of evidence, I have a legal, ethical and moral responsibility to not tamper with anything. I would go to jail, and justifiably so, if I tamper with evidence of a crime. The officer involved told me she did not suspect I would tamper with anything but still sought the warrant,” he wrote in an email to The Columbian.
Although no one implied he tampered with the evidence, Bogar said, “the implication is if a defense attorney does his job, armed officers are going to come and take what he gets. There’s a big chilling effect.
“Actions such as this destroy trust and a sense of mutual respect between folks doing different but equally important jobs in our system of government,” he wrote in an email.
Law enforcement had multiple other options other than to serve a search warrant, he said. They could have sought a motion to compel Bogar to preserve the phone in its current state, he said.
When Bogar contacted the Clark County Prosecuting Attorney’s Office about the situation, it agreed to have an investigator retain the phone so all parties can access it. However, the Vancouver Police Department refused to hand it over, Bogar said.
Price said that once a piece of evidence is seized, it’s secured until it can be analyzed, and then those findings are shared with the prosecution and defense.
But a judge Thursday morning granted Bogar’s motion, which was joined by the prosecuting attorney’s office, and ordered that the Vancouver Police Department turn over the phone to the prosecution’s investigator.
In his 23 years in law enforcement, Price said he’s never encountered this type of situation but said the department will comply with the order. He does not yet know how all of the parties will coordinate efforts to analyze the evidence.
Bogar said Thursday evening that the phone was now in the prosecution’s possession.
During the court hearing, Deputy Prosecutor James Smith said he doesn’t believe there was any “illegality or impropriety” committed. He declined to comment further afterward because of the pending case.
