Defendant claims outrageous government conduct

November 22, 2018

Almost a year after being arrested and accused of beating up his girlfriend at a Jackson hotel, Cody Wagner is claiming police acted without decency when they obtained a search warrant for his phone that included privileged conversations with his attorney.

In a motion to dismiss for outrageous government conduct, Wagner, through his attorneys, Katie Mannen and Tom Fleener, assert that police gained access to his phone without assembling a privilege team.

“Not only did law enforcement have access to privileged communications, they reviewed and even took action on the privileged information by sharing it with the alleged victim in the case,” his attorneys wrote.

Wagner was arrested Jan. 1 after police responded to reports of a fight at the 49er Inn and reportedly found Wagner’s girlfriend covered in blood.

When officers arrived, the victim was outside and said that her boyfriend had hit her.

Wagner told police they had argued about her dancing with other men at the bar, so he left without her. He said that she attacked him when she returned to the room.

But the victim told the opposite story, saying Wagner assaulted her when she returned to the hotel room.

“She thought she was going to die,” Jackson police Lt. Roger Schultz said at the time. “There was some indication that he may have choked her.”

The victim was hospitalized, and Wagner was arrested and charged with aggravated assault and battery, strangulation of a household member and domestic battery.

“She is very afraid of the defendant,” Teton County Deputy Prosecutor Brian Hultman told the court in hearings shortly after Wagner’s arrest.

Wagner was released from jail and ordered to have no contact with the victim. That included their shared home in Driggs, Idaho.

The court allowed Wagner to return to his home state of Ohio, and Wagner started communicating about his case with his counsel via text.

“The defendant is a licensed attorney,” the motion states. “Consequently he knew how important it was to start preserving evidence and preparing a trial strategy.”

Mannen and Fleener say police overstepped and violated their client’s rights when they obtained a search warrant for their client’s phone upon his return to Teton County for a court hearing.

“There can be no greater violation of this privilege than the government reviewing communications between a client and lawyer about the very case the government is investigating,” they wrote.

The claims left the state of Wyoming mostly speechless.

“The state of Wyoming is at a loss on how to respond to this motion,” Teton County Deputy Prosecutor Becket Hinckley wrote in his response. “Maybe the court is aware of a privilege team but the attorney for the state is unaware of Teton County or anyone in Wyoming that uses the same procedures at the Department of Justice.”

Hinckley asked the court to deny the defendant’s motion to dismiss.

An upcoming December trial that was set for Wagner has been vacated, and a scheduling conference is on the Teton County District Court’s Nov. 26 docket.

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