IN THE COUNTY COURT OF THE

ELEVENTH JUDICIAL CIRCUIT IN

AND FOR MIAMI-DADE COUNTY,
FLORIDA

CASE NOS.: F24-2015A; F24-2015B; F24-2015C

JUDGE LAURA CRUZ

STATE OF FLORIDA,

Plaintiff,
v.

KIM DEWAYNE CLENNEY,

DEBORAH CLENNEY,
COURTNEY TAYLOR CLENNEY

Defendant.
_______________________________/

AMENDED ORDER GRANTING DEFENDANTS’ MOTION TO SUPPRESS AND/OR

EXCLUDE

THIS MATTER came before the Court on April 23, 2024, on the Defendants’ Motion to

Suppress and Motion to Dismiss for Prosecutorial Misconduct (“Motion”).1 The Court has read

Defendants’ Motion, Defendants’ Supplement to the Motion to Suppress and Motion to Dismiss

for Prosecutorial Misconduct, State of Florida’s Motion to Strike and Response to Defendants’

Motion to Suppress and Dismiss (“Response”), State of Florida’s Supplemental Briefing,

Defendants’ Supplemental Brief and Response to “State of Florida Supplemental Briefing,” State

of Florida’s Reply to Defendants’ Supplemental Briefing, and Defendant’s Reply to State of

Florida’s Reply to Defendants’ Supplemental Briefing, Having also read relevant law and heard

testimony and argument, it is hereby,

1
For the purposes of this order, the Court is only addressing the suppression portion of Defendants’ Motion and is
treating it as a Motion to Exclude.
 ORDERED AND ADJUDGED:

Defendants’ Motion to Suppress and/or Exclude is GRANTED.2 The Court finds that

Courtney, Kim, and Deborah Clenney have all been represented by Frank Prieto, Esq. and Sabrina

Puglisi, Esq. since August/September 2022. The communication sought to be excluded by the

parties is protected by attorney-client privilege and/or work product privilege. This privilege was

violated, albeit perhaps unknowingly, when the communication was read by prosecutors in this

case. The Court finds that the crime-fraud exception for privileged communication under Florida

Statute section 90.502(4)(a) does not apply to this case, because the State of Florida has made no

prima facie showing that Defendants knew their communications could be an alleged crime. The

proper remedy for this breach of privilege is exclusion of the communication from use in this case

as evidence.

FACTUAL BACKGROUND

In 2022, the State of Florida charged Courtney Clenney (“Courtney”) with Second Degree

Murder in the death of Christian Obumseli (“Christian”) under felony case number F22-14137.

After the killing, crime scene technicians from the City of Miami Police Department processed the

apartment in which Courtney and Christian lived, and officers collected items believed to be of

evidentiary value. The apartment was then released to Courtney. However, because Courtney was

Baker Acted immediately after Christian’s death, Kim Clenney, Courtney’s father, came to collect

the remaining items in the apartment after police finished processing the scene. Among the items

taken by Kim Clenney was a black Asus laptop computer. The State of Florida alleges this laptop

belonged to Christian. Defendants allege the laptop was a shared laptop. Prior to the subsequent

2
Again, the court is only granting the suppression and/or exclusion portion of Defendants’ motion.
events, it does not appear that Christian’s family knew of the laptop’s existence, and the laptop

remained in the possession of Kim and Deborah Clenney and/or Courtney Clenney’s defense team.

Frank Prieto, Esq., filed a notice of appearance on Courtney’s behalf in F22-14137 on

August 15, 2022, followed by notices from Sabrina Puglisi, Esq., on August 18, 2022, and Diane

Carames, Esq., on October 25, 2022. The State of Florida listed Kim and Deborah Clenney as

witnesses in their initial discovery drafted August 31, 2022. Evidence appears to show that before

and immediately after the stabbing, Courtney was on the phone with Deborah Clenney. Deborah

sent multiple texts to her daughter immediately following the stabbing, which show that Deborah

knew Courtney had injured Christian. Deborah did not disclose this to the police during her

conversation with them. Evidence also appears to show that Courtney spoke extensively to both

of her parents about her relationship with Christian.

On September 13, 2022, prosecutors told defense counsel that in addition to listing the

Clenney parents as fact witnesses about the murder and the relationship between Courtney and

Christian, if Courtney’s attorneys had held meetings with Courtney in the presence of her parents,

the state would subpoena Kim and Deborah Clenney to testify about Courtney’s statements. Two

days later, on September 15, 2022, Kim and Deborah Clenney retained Frank Prieto, Esq. and

Sabrina Puglisi, Esq. as attorneys for themselves as well as their other daughter, Morgan Clenney.

Defense counsel did not tell the State of Florida about this representation until this Motion was

filed, approximately one and a half years after the Clenney family hired Mr. Prieto and Ms. Puglisi.

The retainer agreement stated that Kim and Deborah Clenney, “employ[ed] and retain[ed]

the Attorneys to provide all reasonable and necessary legal services in handling representation,

consulting, and guidance to the Clenney Family for matters related to the prosecution in the matter

of State of Florida v. Courtney Clenney, Case No.: F22-14137.” The retainer agreement covered,
but was not excluded to, the following services: contact with law enforcement; contact with the

State Attorney’s Office; evaluation and review of evidence; monitoring and supervising of defense

investigators; security and transportation to and from court; monitoring of the Crisis Management

Team; continuing legal advice to the Clenney Family; contact with media on behalf of the family;

reviewing witness statements and gathering evidence; and preservation of evidence.

On November 3, 2023, the City of Miami Police Department obtained and executed a

search warrant for the iClouds of Courtney and both of her parents.3 When reviewing the iClouds

of Kim and Deborah Clenney, prosecutors encountered a group text chain that included Kim and

Deborah Clenney as well as Mr. Prieto and Ms. Puglisi. The prosecutors did not filter or sequester

Prieto’s or Puglisi’s names from their search of Kim and Deborah Clenney’s iClouds, because the

prosecutors did not know of their representation of the Clenney parents at the time.4

Within that chat was a message from Mr. Prieto sent on July 8, 2023, that said, “Mike Haas

(IT expert) now has possession of all the electronics we need him to evaluate, clone, and run

searches on. I did not have the password for the suspected Obumseli laptop. Does anyone have

that readily available?” Texts after this show that Mr. Prieto asked Courtney for possible passcodes

to the laptop. Several possible passcodes were given and relayed from Mr. Prieto to Deborah and

Kim Clenney. According to the texts, Kim Clenney tried these passcodes until one worked. Once

Mr. Clenney accessed the computer, Mr. Prieto advised him not to review anything on the

computer so that Mr. Clenney would not be a witness to the contents of the computer in the case.

3
This was a nearly identical search warrant to an earlier warrant from February 2, 2023, which had gone stale.

4
Although Defense has argued that the State discussed attorney/client privilege within the warrants themselves, it
appears from the warrants this was a general discussion based on the Clenneys’ role as parents of Courtney. Frank
Prieto himself testified that it was not his responsibility to tell the State of his representation, and he had not done so
before the warrants were served.
The computer was then immediately collected and turned over to Mr. Haas, the defense I.T. expert,

for cloning and preservation of evidence.

After reading these texts, ASA Khalil Quinan stopped reviewing the correspondence and

gave the iCloud communication to the Miami Dade Police Department for investigation into the

crime of Unauthorized Access of a Computer. The Miami Dade police believed that there was

probable cause that Deborah, Kim, and Courtney Clenney had in fact committed this crime.

Therefore, with the assistance of the prosecutors, they issued a warrant for the arrest of Kim and

Deborah Clenney and served a search warrant at the business address of defense I.T. expert, Mike

Haas, to retrieve the Asus laptop.5

LEGAL ANALYSIS

Based upon the factual scenario above, the Court must decide several issues. Were these

communications protected as the privileged work product of Mr. Prieto and Ms. Puglisi for their

representation of Courtney Clenney in Case F22-14137? Were Kim and Deborah Clenney’s text

conversations with Mr. Prieto and Ms. Puglisi during July 2023 privileged because of their

attorney-client relationship? To what does that privilege extend? Were these texts excluded from

any privilege by the crime-fraud exception for privileged communication under Florida Statute

section 90.502(4)(a)? Did prosecutors violate either the work product privilege of Mr. Prieto and

Ms. Puglisi in Case F22-14137 or the attorney-client privilege between Kim and Deborah Clenney

and their attorneys? If a violation of privilege occurred, what is the appropriate remedy for this

violation?

5
Assistant state attorneys assisted in reviewing and editing the arrest warrants and the search warrant.
 Work Product Privilege

Of the issues above, the Defendants and State have focused most on the issue of attorney-

client privilege. However, given how the events above unfolded chronologically, the violation of

the work product privilege seems to lie at the heart of the Defendants’ consternation with the State

of Florida’s actions. It seems clear prosecutors likely did not know that an attorney-client

relationship existed between the Clenney parents and Mr. Prieto and Ms. Puglisi. However, as

soon as they encountered text messages from Courtney Clenney’s attorneys about anything related

to the litigation of her case, the State of Florida should have stopped reading. Given that they did

continue to read, believing the communications fell within the Crime-Fraud Exception under

Florida Statute section 90.502(4)(a), the State should have immediately contacted the Court for an

in-camera review of the communications to get a ruling as to whether the exception applied. See §

90.502(4)(a), Fla. Stat. (2024); see also First Union Nat’l Bank v. Turney, 824 So.2d 172 (Fla. 1st

DCA 2001).

In the criminal context, the work product privilege is codified under Florida Rule of

Criminal Procedure 3.220(g)(1), entitled “Matters Not Subject to Disclosure.” Fla. R. Crim. P.

3.220(g)(1). This rule states that, “[d]isclosure shall not be required of legal research or of records,

correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or

conclusions of the prosecuting or defense attorney or members of their legal staffs.” Id. There

does not appear to be a clear distinction between “fact work product” and “opinion work product”

within this definition.

Under Florida Rule of Civil Procedure 1.280(b)(4), the court “shall protect against

disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or

other representative of a party concerning the litigation materials prepared in anticipation of

litigation by or for a party or its representative”. Fla. R. Civ. P. Rule 1.280(b)(4). However, if a

party seeking discovery of what would otherwise be “fact work product” has need of the material

and is unable to obtain the substantial equivalent without undue hardship, the Court may order that

the discovery be provided. Id.

The rationale supporting the work product doctrine is that “one party is not entitled to

prepare his case through the investigative work product of his adversary where the same or similar

information is available through ordinary investigative techniques and discovery

procedures.” Dodson v. Persell, 390 So.2d 704, 708 (Fla. 1980). Fact work product traditionally

protects that information which relates to the case and is gathered in anticipation of litigation. State

v. Rabin, 495 So.2d 257 (Fla. 3d DCA 1986). Opinion work product consists primarily of the

attorney's mental impressions, conclusions, opinions, and theories. Id. The privilege extends to an

attorney's selection of the facts and information that the attorney considers important to the

case. See Smith v. Fla. Power & Light Co., 632 So.2d 696, 699 (Fla. 3d DCA 1994).

Communication between attorneys and third parties is often protected by work-product privilege

if the communication pertains to litigation and is made in anticipation of litigation. Liberty Mut.

Fire Ins. Co. v. Kaufman, 885 So.2d 905 (Fla. 3d DCA 2004).

Under the law and definitions above, the conversations between Mr. Prieto and Ms. Puglisi

and the Clenney parents fall squarely within fact work product. Mr. Prieto and Ms. Puglisi were

speaking with Courtney’s parents about a specific piece of potential evidence in Courtney’s murder

case. They were gathering information about this laptop in anticipation of litigation which would

be important to their defense of Courtney Clenney against her murder charges. However, simply

because the communications were privileged, the laptop itself and evidence contained within the

laptop likely are not. Its contents are unique and would not otherwise “be available through
ordinary investigative techniques and discovery procedures.” See Dodson, 390 So.2d at 708. If

the State had petitioned the Court for access to the laptop because there was no other way to access

the information within it, the Court likely would have granted this request.

The State of Florida saw the Defendants’ possession of this Asus laptop through

prosecutorial blinders that led them to the belief that opposing counsel were knowingly engaged

in (and encouraging their clients to engage in) criminal activity. A more reasonable perspective

would have been that opposing counsel were involved in the normal investigation of a criminal

case, of which the prosecution was rarely privy to because they are not entitled to know the inner

workings of the Defendants’ case until such time as the Court or law deems that necessary.

Attorney-Client Privilege

“A ‘client’ is any person … who consults a lawyer with the purpose of obtaining legal

services or who is rendered legal services by a lawyer.” § 90.502(1)(b), Fla. Stat. (2024). The

burden of establishing the existence of an attorney-client relationship rests with the claimant. See

State v. Rabin, 495 So.2d 257, 260 (Fla. 3d DCA 1986). In determining whether a privileged

attorney-client relationship exists, the primary focus is on the intent of the person claiming the

privilege. Id.

The privilege belongs to the client and is applicable only when a communication is for the

purpose of facilitating the rendition of professional legal services to the client. An older case from

1942 makes a very clear distinction between privileged and non-privileged communication. “The

privilege . . . does not extend to every statement made to a lawyer. If the statement is about matters

unconnected with the business at hand, or in a general conversation, or to the lawyer merely as a
personal friend, the matter is not privileged.” Modern Woodmen of America v. Watkins, 132 F.2d

352, 354 (5th Cir. 1942).

Defendants have proven that they have been clients of Mr. Prieto and Ms. Puglisi since

September 2022. As stated above, the retainer agreement between Kim and Deborah Clenney and

Mr. Prieto and Ms. Puglisi covered “all reasonable and necessary legal services in handling

representation, consulting, and guidance to the Clenney Family for matters related to the

prosecution in the matter of State of Florida v. Courtney Clenney, Case No.: F22-14137.” The

text conversations were about accessing and using evidence in their daughter’s murder case. As

such, the communication is covered by the legal representation provided to the Clenneys by their

attorneys and is protected by attorney-client privilege. This was not a conversation between

friends or a conversation unrelated to the prosecution of Courtney Clenney’s murder case. The

Court finds there was a valid attorney-client relationship between the parties, and that the text

conversation at issue was clearly related to legal representation sought. Therefore, the

communication should be protected as privileged.6

The State has argued that there is an inherent conflict in the representation of both Courtney

Clenney and her parents by Mr. Prieto and Ms. Puglisi. In State v. Rabin, a case cited by both

Defendants and State, a criminal defense attorney, representing a defendant accused of murder,

had a meeting with his client’s ex-wife to determine what the defendant had told her. See State v.

Rabin, 495 So.2d 257. “At or near the outset of the meeting, [the wife] asked Rabin whether their

conversation would be “repeated,” and Rabin assured her that it would be kept confidential. At the

6
The Court does not find that the text messages are protected by the attorney-client privilege that existed between
Courtney Clenney and Mr. Prieto and Ms. Puglisi. Courtney had her own relationship with these attorneys, and the
Court does not find that the communications were protected under her attorney-client privilege nor that her parents
were acting as her agents.
end of their conversation, Rabin advised [the wife] that she would probably need counsel but that,

because of a possible conflict of interest, he could not represent her.” Id. at 258.

All parties should note that attorney-client privilege may protect the communication

between attorney and client, but it does not protect any underlying facts known by the client.

The privilege protects only communications to and from a lawyer; it does not protect facts
known by the client independent of any communication with the lawyer, even if the client
later tells the fact to the lawyer: “the communication between the attorney and client is
privileged, but the underlying facts are discoverable.” S. Bell Tel. & Tel. Co. v.
Deason, 632 So.2d 1377, 1387 (Fla.1994); see also Carnival Corp. v. Romero, 710 So.2d
690, 694 (Fla. 5th DCA 1998) (“Although the communications between an attorney and
client are privileged, the underlying facts are discoverable.”). In other words, “[t]he client
cannot be compelled to answer the question, ‘What did you say or write to the attorney?’
but may not refuse to disclose any relevant fact within his knowledge merely because he
incorporated a statement of such fact into his communication to his attorney.” Upjohn
Co. v. U.S., 449 U.S. 383, 396, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981).

Coffey Garcia v. S. Miami Hosp., Inc., 194 So.3d 533, 537 (Fla. 3d DCA 2016).

Nothing that is known by Kim or Courtney Clenney is privileged. They are listed witnesses

in the murder case of their daughter and will still be subject to questioning about everything they

know regarding the case. The Court will now turn back to the Rabin case and the issue of conflict

of interest. In their retainer agreement, Kim and Deborah Clenney agreed to the following:

The attorneys have discussed with the Clenney family that representation of multiple
parties can always lead to a conflict of interest; however, the lawyers reasonably believe
that joint representation of the family members will not adversely affect the lawyers
responsibilities to and relationship with the other clients. The Clenney family understands
that a conflict could arise; however, they believe that the interests of the family and joint
representation is in their best interest and consent to being jointly represented.

The Court agrees with Defendants that it is not for the State of Florida to decide when there is a

conflict of interest. At this moment in time, Kim and Deborah Clenney appear to have signed a

valid retainer agreement and to have knowingly waived any potential conflict. The conversation

at issue here is privileged because of that attorney-client relationship. However, the Court foresees
this dual representation as being potentially problematic in the future, as the attorney in Rabin

seemed to when he was asked to represent both his client and his client’s ex-wife, a potential

witness. If the murder case goes to trial, will Mr. Prieto and Ms. Puglisi still be able to represent

two witnesses in the case? At the moment, that issue isn’t before the Court, but it is foreseeable

that a conflict could arise in the future.

Violation of Both Work Product and Attorney-Client Privilege

In the matter at hand, prosecutors did violate both the work product privilege and the

attorney-client privilege when they read and used the communications between the Clenney

parents and their attorneys. Although prosecutors may have been unaware of the existence of an

attorney-client relationship between Courtney’s parents and Mr. Prieto and Ms. Puglisi, the

protection of this privilege existed, nonetheless. The Court believes that the prosecutors should

have understood the communication to be work product as soon as they saw the communication

was from Courtney Clenney’s attorneys and was related to her murder case. If the prosecution

believed that opposing counsel had discovery to which they were entitled, they could have easily

brought the matter to the attention of the Court.7

Crime-Fraud Exception

Florida Statute section 90.502(4)(a) states, “There is no lawyer-client privilege under this

section when [t]he services of the lawyer were sought or obtained to enable or aid anyone to

commit or plan to commit what the client knew was a crime or fraud.” § 90.502(4)(a), Fla. Stat.

(2024). The State of Florida argues that this text communication between Kim and Deborah

Clenney and their attorneys falls within this exception. The prosecution, as the party seeking to

use the crime-fraud exception, has the burden of presenting prima facie evidence that the Clenneys

7
Again, perhaps this would have been more reasonable than the conclusion that opposing counsel was engaged in
knowingly felonious behavior.
sought the advice of counsel to knowingly commit or plan to commit a crime. See First Union

Nat’l Bank of Fla. v. Whitener, 715 So.2d 979, 982 (Fla. 5th DCA 1998). The disputed

communication itself cannot be used for this purpose, unless the party asserting the privilege

consents, which clearly Defendants here have not. See First Union Nat'l Bank, 715 So.2d at 983–

84. Therefore, the State failed to meet this burden entirely.

The Court does not need to look any further than the plain language of the statute for and

answer was to whether it applies here. The plain language of the statute states that the client had

to know they were seeking legal advice to aid in the commission of a crime. The language of the

statute could have easily left out the words “what the client knew.” It could have read, “the services

of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit … a

crime.” The statute was purposely written with a knowledge requirement. This exception was

written to prevent a client from knowingly seeking counsel to aid in a crime and then hiding behind

the attorney-client privilege. The knowledge is a key component to this exception, and the State

laptop using the passcode give to them by Courtney could be considered a crime.

If prosecutors truly believed that the crime-fraud exception applied, and they had evidence

of the alleged crime aside from the privileged communications themselves, they were obligated to

first bring this to the Court’s attention before violating any privileged communication. The State

of Florida should have immediately addressed the issue to the Court,

Absent agreement otherwise, the trial judge should not examine written communications
between attorney and client, unless the party seeking to establish the crime-fraud
exception adduces competent evidence, apart from the disputed documents, that would
lead a reasonable person to believe that such an examination would reveal that the
communications were part of an effort to perpetrate some crime or
fraud. See Zolin, 491 U.S. at 572, 109 S.Ct. 2619 (“Before engaging in in camera review
to determine the applicability of the crime-fraud exception, ‘the judge should require a
showing of a factual basis adequate to support a good faith belief by a reasonable
person,’ Caldwell v. District Court, 644 P.2d 26, 33 (Colo.1982), that in camera review
of the materials may reveal evidence to establish the claim that the crime-fraud exception
 applies.”). Even if in camera inspection makes it appear that the crime-fraud exception
applies, a full evidentiary hearing is necessary (unless waived by the proponent of the
privilege), before confidential communications between attorney and client can be
disclosed to another party. See First Union Nat'l Bank, 715 So.2d at 983–84; American
Tobacco Co., 697 So.2d at 1256. “When communications appear on their face to be
privileged [or the privilege is otherwise established], the party seeking disclosure bears
the burden of proving that they are not.” Shell Oil Co. v. Par Four P'ship, 638 So.2d
1050, 1050 (Fla. 5th DCA 1994). See Robichaud v. Kennedy, 711 So.2d 186, 188 (Fla.
2d DCA 1998); Cone v. Culverhouse, 687 So.2d 888, 892 (Fla. 2d DCA
1997); The Haskell Co. v. Georgia Pac. Corp., 684 So.2d 297, 298 (Fla. 5th DCA 1996).

First Union Nat’l Bank v. Turney, 824 So.2d 172, 183 (Fla. 1st DCA 2001). The State of Florida

did none of the above, instead taking it entirely upon themselves to unilaterally conclude the

exception applied and that the privileged could be breached.

Remedy

The Court is left with consideration of what the appropriate remedy is for the violation of

the Defendants’ attorney-client and work product privileges. Although the Court believes these

are statutory rather than constitutional rights,8 the Court still finds that the only equitable remedy

is exclusion of these statements from use as evidence in this case.

8
The Court recognizes that Defendants have analogized this to an illegal search and seizure under the 4 th
Amendment, but the Court isn’t sure it agrees with that analogy, and it is not the basis of this opinion.
 Conclusion

Therefore, for all of the reasons given above, the Court GRANTS the Defendants’ Motion

to Suppress and/or Exclude. All statements among Kim Clenney, Deborah Clenney, Frank Prieto,

and Sabrina Puglisi regarding the black Asus laptop will be excluded from use in this case.

DONE AND ORDERED in Chambers in Miami-Dade County, Florida, on July 1, 2024,

nunc pro tunc to June 26, 2024.

________________________________
Laura Shearon Cruz
Circuit Court Judge