Amicus Curiae Brief — Landberg v. Duffy

“a \ Supreme Court, U S |

TY) FILED

JAN 26 1999

No. 97-1927

In the

Supreme Court of the United States

October Term, 1998

—~>

RODNEY C. HANLON, JOEL SCRAFFORD,

KRIS A. MCLEAN, RICHARD C. BRANZELL,

and ROBERT PRIEKSAT,

Petitioners,

v.

PAUL W. BERGER and ERMA R. BERGER,

Respondents.

i.

—

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

*--

BRIEF AMICUS CURIAE

OF PACIFIC LEGAL FOUNDATION

IN SUPPORT OF RESPONDENTS

—+

M. REED HOPPER

Counsel of Record

ROBIN L. RIVETT

Pacific Legal Foundation

2151 River Plaza Drive, Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

Facsimile: (916) 920-3444

Counsel for Pacific Legal Foundation

~ |DECT AVATLADIE CADV)

Pian,

mal

i

QUESTION PRESENTED

1. Whether law enforcement officers violate the Fourth

Amendment by allowing members of the news media to

accompany them and to observe and record their execution of a

warrant?

2. Whether, if this action violates the Fourth Amendment,

petitioners are nonetheless entitled to a defense of qualified

immunity?

TABLE OF CONTENTS

Page

QUESTION PRESENTED .....:0:+cscseedwuenuueu:

TABLE OF AUTHORITIES CITED ..............00- ii

IDENTITY AND INTEREST OF AMICUS CURIAE ....

STATEMENT OF THE CASE ..........0..e0eeeuees 2

SUMMARY OF THE ARGUMENT ..............-0. d

ARGUMENT ....<..00+csssuceeeene nn eae

I. ANY UNNECESSARY INTRUSION IN THE

EXECUTION OF A WARRANT VIOLATES

FOURTH AMENDMENT PRIVACY RIGHTS .... 6

A. Fourth Amendment Values Dictate That

Governmental Intrusions Be Minimal and

Reasonably Necessary to the Execution of

the Warnell . 00s ccvsrdcnvabenee tee ¢

B. Media Involvement in the Execution of a

Warrant Maximizes the Intrusion ........... 14

ll. THE PURPORTED ACCOMPLISHMENT OF

SOME LAW ENFORCEMENT PURPOSE

DOES NOT JUSTIFY THE EXPANDED

INTRUSION OF THE NEWS MEDIA IN

OBSERVING AND RECORDING THE

EXECUTION OF A WARRANT .............. 16

OONCLIUSOUIN 2.0 0s sacseeeuhauneaen euceaseeeuen 20

TABLE OF AUTHORITIES CITED

Page

Cases

Andersen v. Maryland, 427 U.S. 463 (1976) ......... 9,11

Ayeni v. Mottola, 35 F.3d 680

ed al dake a's 0 7, 9-10, 12, 16-20

Berger v. Hanlon, 129 F 3d 505

i nb at Webs peewee ees 6c 11-13, 15-17

Boyd v. United States, 116 U.S. 616 (1886) ............ 8

Branzburg v. Hayes, 408 U.S. 665 (1972) ............ 19

Buencore v. Harris, 656 F3d. 347 (4th Cir. 1995) ....... 13

Burdett v. Abbot, 104 Eng. Rep. 501 (K.B.1811) ....... 13

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ....... 9

Johnson v. United States, 333 U.S. 10 (1948) .......... 13

Kaiser Aetna v. United States,

SE RCEEPOD cebccsscccevecccccccccas 18-19

Michigan v. Summers, 452 U.S. 692 (1981) ........... 12

Payton v. New York, 445 U.S. 573 (1980) ....... 8-9, 12-13

Silverman v. United States, 365 U.S. 505 (1961) ...... 6-7

Semayne's Case, 77 ENG. REP., No. 194

EEE Se re 6, 13

Stanford v. Texas, 379 U.S. 476 (1965) ............... &

Warden, Maryland Penitentiary v. Hayden,

EE 7

Wilson v. Layne, 141 F.3d 111

i cia rate sites oi cya sa os 6, 12, 16-17, 20

iv

TABLE OF AUTHORITIES—C ontinued

Page

United States Constitution

FUN AMMEN vin kt seni ediveusivetoeds enes passum

SED AMMURGME 2 oe ve wcveseawaee ina cdéwnaeeson 18

Federal Statutes

SS UBL, BOSE otc coun det¥ekccdivece cures 9, 12, 16

Rules

SUID CA ED SF ockc i cet vbicebeteveccteccbacs I

Rule 37.6

IDENTITY AND INTEREST OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37,’ Pacific Legal

Foundation (PLF) respectfully submits this brief amicus curiae

in support of Respondents, Paul and Erma Berger. Written

consent for amicus participation in this case was granted by

counsel for all parties and lodged with the Clerk of this Court.

Pacific Legal Foundation is a nonprofit, tax-exempt

organization incorporated under the laws of California for the

purpose of litigating important matters of public interest. PLF

has thousands of supporters nationwide and advocates a

balanced approach to dealing with public interest issues. PLF

supports the concept of limited government and believes public

officials must be respectful of the constitutional rights of those

whom they serve. Law enforcement personnel have a duty not

only to execute the law, but also to protect the civil rights of

citizens. Police action that i excessive or unduly intrusive

undermines individual liberty and is intolerable in a free society.

This case is a singular example of government excess and

intrusion into the privacy of individuals. It calls into question

the fundamental protections afforded the people in the Fourth

Amendment to the United States Constitution. How this Court

answers the questions raised by this case will determine the

expectation of privacy we have in our very homes. A considera-

tion of a broad spectrum of perspectives is, therefore, warranted.

Pacific Legal Foundation has a long history of amicus participa-

tion in this Court and believes its public policy perspective on

balancing the needs of law enforcement with individual liberty

will provide a necessary viewpoint on the issues presented in this

' Pursuant to Supreme Court Rule 37.6, amicus Pacific Legal

Foundation states that no counsel! for a party to this action authorized

any portion of this brief and that no person or entity, other than

amicus, made a monetary contribution to the preparation or

submission of this brief.

2

+

STATEMENT OF THE CASE

Paul and Erma Berger own a ranch in Montana. In 1993,

disgruntled former employees of the Bergers reported to the

United States Fish and Wildlife Service (Service) that they had

seen Mr. Berger poison protected eagles. An investigation

ensued that came to the attention of the media. Reporters for

Cable News Network (CNN) approached agents of the Service

to work out a television deal. The media wanted footage for

their television program “Earth Matters,” and the Service wanted

publicity of its environmental law enforcement efforts. An

Assistant United States Attorney signed a contract with CNN

authorizing CNN reporters to accompany United States agents

as they executed a criminal search warrant on the Bergers’

ranch. Under this contract, CNN would retain exclusive

editorial control of any video and voice recordings of the event.

In March, 1993, a magistrate judge issued a sealed search

warrant for the Bergers’ ranch authorizing a search of all the

premises, except the residence. The judge was never apprised

of the media contract nor was he informed that the media would

join the search. The media participated in a pre-search briefing

where the media were provided details of the sealed warrant and

supporting documents. At this briefing, law enforcement officers

allegedly discussed with the media ways of preventing the

Bergers from discovering the reporters were not government

agents. On the morning of the search, CNN reporters and

government agents descended on the ranch in 10 vehicles.

Media cameras mounted on the inside and outside of

government vehicles recorded the event. Reporters were dressed

in plain clothes, indistinguishable from federal agents. A special

agent for the Service was wired with a CNN microphone. As

the cars came up the road, Mr. Berger drove out to meet them.

Mr. Berger was told by the special agent that he would be served

a warrant and that the government was authorized to search

3

all buildings on his property. The special agent asked if he could

accompany Mr. Berger back to the ranch in Mr. Berger’s truck

so he could explain how the search would proceed. Mr. Berger

agreed. The special agent did not tell Mr. Berger that the

warrant did not include the house nor did he inform Mr. Berger

that he was wearing a hidden microphone and his conversations

would be recorded.

At the time of the search, Mr. Berger was 71 and

Mrs. Berger was 81. Only 10 days prior, Mr. Berger had been

released from the hospital after treatment for high blood

pressure. He was visibly upset and naturally acquiesced when

the special agent asked him if he could come into his home.

Thus began an all-day search of the Berger ranch that involved

threats of imprisonment if the Bergers did not cooperate, staged

photo shoots, on-camera interviews by federal agents on the

Berger property whereby the agents made derogatory comments

about the Bergers, and planned diversions so the Bergers would

not discover the presence of the media. On one occasion,

Mr. Berger objected to the presence of video cameras. Federal

agents responded by redirecting the cameras and interrogating

the Bergers with strongly worded leading questions while surtep-

titiously taping the answers. Apparently, to add some drama to

the affair, the Assistant United States Attorney wore an ATF hat.

Although no convincing evidence was ever discovered of

poisoned eagles, Mr. Berger was charged with a few felony

counts of killing protected species and a misdemeanor count of

using a pesticide not in accordance with its labeling. Mr. Berger

was acquitted on the felonies but convicted on the misdemeanor.

A highly edited version of the video and audio tapes, implying

that the Bergers had killed hundreds of eagles, was aired on

CNN at least 10 times and shown internationally.

The Bergers filed a civil suit against the agents and the

media for violating their civil rights, trespass, and intentional

infliction of emotional distress. The Ninth Circuit Court of

Appeals ruled the search was patently unreasonable and held the

4

agents liable. The court also ruled that the media had trespassed

in violation of state law and may be liable for emotional distress.

The court refused to enjoin further airings of the video.

+

SUMMARY OF THE ARGUMENT

Any unnecessary intrusion in the execution of a warrant

violates Fourth Amendment privacy rights. As this Court has

stated, the principle objective of the Fourth Amendment is to

protect individual privacy from government intrusion. This

protection is afforded by the warrant requirement. By the Fourth

Amendment’s express terms, no warrant may issue except for

probable cause based on sworn affidavit. The warrant must also

specify with particularity the places, things, and persons to be

searched or seized.

This Court has warned that public officials must take care

to assure that searches and seizures are conducted so as to

minimize the intrusion. This implies a limitation not only on

how the warrant is executed but on who may execute it. Conse-

quently, where warrants are required, home invasion must be

grounded on either the express terms of a warrant or the implied

authority to take reasonable law enforcement actions related to

the execution of the warrant. In this case, the warrant did not

address media involvement because law enforcement officers

withheld their media plans from the magistrate. Nor was the

presence of the media determined to be reasonably necessary to

the execution of the warrant. Therefore, the presence of the

media unduly and substantially expanded the intrusion into the

Bergers’ privacy in violation of the Fourth Amendment. Fourth

Amendment values dictate that governmental intrusions be mini-

mal] and reasonably necessary to the execution of the warrant.

Media involvement in the execution of a warrant maximizes

the intrusion. While there were only 3 CNN reporters to the 21

law enforcement officers on the Bergers’ property, their impact

5

on the Bergers’ privacy was anything but marginal and

insignificant. The audio and video tapes CNN took of the search

were broadcast repeatedly to both national and international

audiences. Moreover, these tapes were edited to show the

Bergers as scofflaws who maliciously killed protected wildlife,

although they were never convicted of such crimes. Further,

federal law enforcement officers invited the media onto the

Bergers’ private property in violation of state trespass laws.

Consequently, the impairment to the Bergers’ privacy occa-

sioned by the presence of the media could not have been greater.

Additionally, the purported accomplishment of some law

enforcement purpose does not justify the expanded intrusion by

the news media in observing and recording the execution of a

warrant. Empirical evidence demonstrates, in this and other

cases, that the presence of the media is just as likely to generate

police grandstanding and misconduct as it is to deter violence

and crime. Therefore, the media perform no legitimate police

purpose when they accompany law enforcement officers in the

execution of a warrant. Private news media coverage is not

reasonably necessary to the execution of the warrant and should

not be allowed.

Furthermore, the media have no more right than the general

public to observe and record the execution of a warrant. They

can be excluded from private property. Therefore, this Court

should not allow a warrant to become a press pass. Instead, this

Court should resolve that law enforcement officers must mini-

mize impairment to the constitutionally protected right to

privacy.

6

ARGUMENT

I

ANY UNNECESSARY INTRUSION IN THE

EXECUTION OF A WARRANT VIOLATES

FOURTH AMENDMENT PRIVACY RIGHTS

The Fourth Amendment provides:

The right of the people to be secure in their persons,

houses, papers and effects, against unreasonable

searches and seizures, shall not be violated, and no

warrants shall issue, but upon probable cause,

supported by oath or affirmation, and particularly

describing the place to be searched, and the persons or

things to be seized.

U. S. Const., amend. IV.

This constitutional amendment is an extension of English

tradition and jurisprudence and embodies the core value that the

home is sacrosanct. See Wilson v. Layne, 141 F.3d 111, 121

(4th Cir. 1998). In recognition of fundamental privacy and

property rights, as early as the Semayne’s Case, 77 ENG. REP.,

No. 194 (K.B. 1604), the King’s Bench declared that the “house

of every one is to him as his castle and fortress,” id. at 195, and

prohibited the government from forcibly entering a home at the

behest of a private party. /d. at 198. It is ironic, therefore, that

this Court must now decide whether the law prohibits the

government from forcibly entering a home with a private party.

A. Fourth Amendment Values Dictate

That Governmental Intrusions Be

Minimal and Reasonably Necessary

to the Execution of the Warrant

As this Court stated in Silverman v. United States, 365 U.S.

505 (1961):

7

The Fourth Amendment, and the personal rights which

it secures, have a long history. At the very core stands

the right of a man to retreat into his own home and

there be free from unreasonable governmental

intrusion.

Id. at 511.

“The protection of privacy from encroachment by govern-

ment officers is the ‘principle’ object of the [Fourth]

Amendment.” Ayeni v. Mottola, 35 F.3d 680, 684 (2nd Cir.

1994) (citing Warden, Maryland Penitentiary v. Hayden,

387 U.S. 294, 304 (1967)). This right of privacy is assaulted

everytime the government enters private property. Is it any

wonder then that the Fourth Amendment expressly prohibits

unreasonable searches and seizures and requires the protection

of an authorized warrant?

But if this warrant requirement is to protect .zainst undue

governmental impairment of the right of privacy and the sanctity

of the home, it must have meaningful limits. The Framers of the

Constitution clearly intended such limits. This warrant require-

ment is not like the writs of assistance that authorized agents of

the Crown to search as they pleased and were so odious to the

8

American colonists.” Rather, these warrants are bounded by the

exacting requirements of the Fourth Amendment.

The Framers required all warrants to be obtained on

probable cause supported by sworn affidavits. To further pro-

tect individual rights of privacy and property, the Framers also

required all warrants to describe with particularity the place to be

searched and the persons or things to be seized. U.S. Const.,

amend. IV.

In recognition of these strict requirements, this Court has

long recognized that an entry into the home without a warrant

(with few exceptions) is per se unreasonable and, therefore,

unconstitutional. See Payton v. New York, 445 U.S. 573, 588-90

* Writing for the Court in Stanford v. Texas, Justice Stewart

explained:

“Vivid in the memory of the newly independent Americans

were those general warrants known as writs of assistance under

which officers of the Crown had so bedeviled the colonists.

The hated writs of assistance had given customs officials

blanket authority to search where they pleased for goods

imported in violation of the British tax laws. They were

denounced by James Otis as‘the worst instrument of arbitrary

power, the most destructive of English liberty, and the

fundamental principles of law, that ever was found in an

English law book,’ because they placed ‘the liberty of every

man in the hands of every petty officer.’ The historic occasion

of that denunciation, in 1761 at Boston, has been characterized

as perhaps the most prominent event which inaugurated the

resistance of the colonies to the oppressions of the mother

country.’ “Then and there,” said John Adams, ‘then and there

was the first scene of the first act of opposition to the arbitrary

claims of Great Britain. Then and there the child Independence

was born.””

Stanford v. Texas, 379 U.S. 476, 481-82 (1965) (quoting Boyd v.

United States, 116 U.S. 616 (1886)).

9

(1980); and Coolidge v. New Hampshire, 403 U.S. 443, 454-55

(1971).

The Framers took great pains to ensure our protection from

unnecessary intrusion. They saw firsthand the dangers attendant

to overbearing and arbitrary government. To avoid these

dangers, they drafted a Fourth Amendment designed to

minimize governmental impairment of individual rights. With

good reason, this Court has admonished that “responsible offi-

cials, including judicial officials, must take care to assure that

[searches and seizures] are conducted in a manner that

minimizes unwarranted intrusions upon privacy.” Andersen v.

Maryland, 427 U.S. 463, 482 n.11 (1976). Minimizing intru-

sions necessarily requires a limitation on who may execute the

warrant as well as how the warrant may be executed.

According to the Second Circuit in Ayeni:

With respect to express authorization, a warrant

identifies not only the premises that may be searched

and the items that may be examined or seized, but also

the officers who are authorized to participate in the

search and seizure.

Ayeni v. Mottola, 35 F.3d at 685-56.

As a limit on those who may accompany law enforcement

officers in the execution of a warrant, this interpretation of

Fourth Amendment requirements has been codified in federal

statutory law:

A search warrant may in all cases be served by any of

the officers mentioned in its direction or by an officer

authorized by law to serve such warrant, but by no

other person, except in aid of the officer on his

requiring it, he being present and acting in its

execution.

18 U.S.C. § 3105 (emphasis added).

10

This straightforward statute makes clear that law

enforcement officers may not bring along third parties in the

execution of a warrant except in the limited circumstance where

the third party is needed to aid the officers. According to the

Second Circuit, the type of aid envisioned by this statute is

actual assistance in conducting the search.

In Ayeni v. Mottola, secret service agents entered the home

of Mr. and Mrs. Ayeni with a warrant to search for evidence of

credit card fraud on the part of Mr. Ayeni. These agents were

accompanied by a CBS television crew for “Street Stories.”

Mr. Ayeni was not home. However, Mrs. Ayeni, who was not

a Suspect, was in the home with her young son. She was clad

only in a dressing gown. Mrs. Ayeni objected to the videotaping

of herself and her son. At one point she even tried to avoid the

CBS camera by covering her face with a magazine. Her son was

crying, and he told his mother he was frightened. When

Mrs. Ayeni attempted to cover her son’s face with a magazine,

a Special agent grabbed the magazine out of her hand, threw it

on the floor, and told them to “shut up.” This same agent

directed the camera crew to video tape Mrs. Ayeni’s face while

he questioned her about her husband. Ayeni v. Mottola, 35 F.3d

at 683.

The Second Circuit found this search patently unreasonable

and in clear violation of both the Fourth Amendment and

statutory law. The court noted with asperity that CBS was not

assisting the agents in conducting the search. “On the contrary,

the officers were assisting CBS in producing a television show.”

Id. at 687. So it is in the present case.

The Assistant United States Attorney had a signed agree-

ment with CNN to allow video and audio taping of the search at

the Bergers’ ranch. As in Ayeni, the purpose of these recordings

was to provide footage for a television show and not to aid the

officers in the search:

11

In this case we have not only a verbal agreement, but

a written contractual commitment between the

government and the media to engage jointly in an

enterprise that only the government could lawfully

institute--the execution of a warrant--for the mutual

benefit of both the private interests of the media and

the government officials’ interest in publicity. It is

also alleged that the federal entities shared confidential

information with the media. Indeed, the record in this

case suggests that the government officers planned and

executed the search in a manner designed to enhance

its entertainment, rather than its law enforcement

value, by engaging in, for example, conversations with

Mr. Berger for the purpose of providing interesting

soundbites, and to portray themselves as tough, yet

caring investigators, rather than to further their

investigation.

Berger v. Hanlon, 129 F.3d 505, 515 (9th Cir. 1997).

The responsible officials in these cases, and many others,

did not follow the admonition of this Court to “take care to

assure that [searches and seizures] are conducted in a manner

that minimizes unwarranted intrusions upon privacy.” See

Andersen v. Maryland, 427 U.S. at 482 n.11. Rather, in viola-

tion of Fourth Amendment protections, the law enforcement

officers did their best to maximize the intrusion by bringing

along the media who can and will broadcast all they hear and see

to the world.

Both law enforcement and judicial officers are in need of

a workable standard more clearly defining the constitutional

limits of searches and seizures. This Court has been asked to

answer the question whether law enforcement officers violate the

Fourth Amendment by allowing members of the news media to

accompany them and to observe and record their execution of a

warrant. To comport with the intent and language of the Fourth

12

Amendment, the answer to that question must seek to minimize

privacy intrusions.

According to the Second Circuit:

It has long been established that the objectives of the

Fourth Amendment are to preserve the right of privacy

to the maximum extent consistent with reasonable

exercise of law enforcement duties and that, in the

normal situations where warrants are required, law

enforcement officers’ invasion of the privacy of a

home must be grounded on either the express terms of

a warrant or the implied authority to take reasonable

law enforcement actions related to the execution of the

warrant.

Ayeni, 35 F.3d at 688.

This is a workable standard and one not inconsistent with

Supreme Court jurisprudence. See Payton v. New York,

445 U.S. at 602-03; and Michigan v. Summers, 452 U.S. 692,

705 (1981). Moreover, this standard is endorsed by the Ninth

Circuit in this case (see Berger, 129 F.3d at 510-11) and the

dissent in Wilson (see Wilson v. Layne, 141 F.3d at 119). This

standard is also impliedly codified in 18 U.S.C. § 1305. Fourth

Amendment values dictate that forcibly executed invasions of

private property under purported authority of government

warrants be minimal and reasonably necessary to the execution

of the warrant.

Although law enforcement officers require some latitude in

the execution of a warrant, the requirement that the invasion be

grounded in the express terms of the warrant prevents govern-

ment overreaching and protects core Fourth Amendment values.

As this Court has stated:

The right of officers to thrust themselves into a home

is... a grave concern, not only to the individual but to

a society which chooses to dwell in reasonable security

13

and freedom from surveillance. When the right of

privacy must reasonably yield to the right of search is,

as a rule, to be decided by a judicial officer, not by a

policeman or Government enforcement agent.

Payton v. New York, 445 U.S. at 586 n.24 (quoting Johnson v.

United States, 333 U.S. 10, 14 (1948)).

In Berger, law enforcement officers obtained a warrant to

search the Berger property without disclosing the media

contract, the planned presence of the press, or the media’s

purpose. Therefore, the warrant did not expressly address media

involvement in the execution of the warrant, either as active

participants or as passive observers. Nor was the media

presence reasonably necessa’y to the execution of the warrant.

To the contrary:

This was no ordinary search. It was jointly planned by

law enforcement officials and the media, as

memorialized by a written contract, so that the officials

could assist in the media obtaining material for their

commercial programming. The television cameras

invaded the residential property of the plaintiffs and

the microphone invaded their home. This search

Stands out as one that at all times was intended to serve

a major purpose other than law enforcement.

Berger, 129 F.3d at 510.

It has been established since the early seventeenth century

that “[e]ven a duly authorized officer could not execute a

warrant to further the purposes of a private individual.”

Buencore v. Harris, 656 F.3d 347, 354 (4th Cir. 1995) (citing

Semayne’s Case, 77 Eng. Rep. at 198); Burdett v. Abbot,

104 Eng. Rep. 501, 560-61 (K. B. 1811)). This Court should

not allow law enforcement officers to advance the private

pecuniary interests of the media, and unnecessarily erode the

delicate privacy and property rights of citizens, by allowing the

media to accompany them in the execution of a warrant.

14

B. Media Involvement in the Execution

of a Warrant Maximizes the Intrusion

Petitioners downplay the media intrusion in this case. They

argue that the presence of CNN reporters at the Berger ranch

was marginal and insignificant:

[T]o the degree the Bergers allege a privacy interest

which was invaded by the reporters’ presence during

the execution of the warrants, the incremental impact

of having twenty-four people (including three

journalists) instead of twenty-one (the FWS warrant

execution team) witness the execution of the warrant

. .. Should not impact the constitutional balance. In

other words, the incremental harm of having three

civilians observing what twenty-one law enforcement

officers already are viewing does not outweigh the

significant public interests served by the presence of

neutral journalists.

CNN brief at 38.

Putting aside CNN’s undeserved claim of neutral

journalism, this argument borders on the ludicrous. CNN’s

incremental impact was not merely three journalists, but the

whole world. The video and audio tapes CNN recorded during

the course of the search on the Bergers’ private property were

broadcast repeatedly to national and international audiences.

The object of these broadcasts was to maximize dissemination

of private information about the Bergers that was obtained by

CNN only by use of the coercive power of government to

compel the Bergers to grant CNN access. Moreover, these tapes

were not allowed to speak for themselves. They were edited to

imply more than they showed. The Bergers were portrayed by

CNN as scofflaws who killed scores of protected eagles although

Mr. Berger was never convicted of such a crime. Joint

Appendix (App.) at 127. Consequently, the impairment to the

Bergers’ privacy could not have been greater.

15

But further insult was added to the Bergers’ constitutional

injury when the media broke state trespass law--with the

collusion of law enforcement officers--by entering the Berger

property without their consent or knowledge.

The Ninth Circuit held the media violated generally

recognized principles of trespass law in the State of Montana

when they accompanied federal agents in the execution of a

warrant on the Berger property. Berger, 129 F.3d at 517.

Contrary to the district court that had found there Washo

trespass because the government was “in control of the

premises” when it searched the Berger ranch with the media, the

Ninth Circuit ruled “such control does not authorize law

enforcement officers to invite third parties on the premises for

reasons unrelated to law enforcement.” More specifically, the

court held: “The warrant therefore does not justify the media

intrusion here, because the officers invited the media for

newsgathering, not for law enforcement.” /d. at 516.

The parties agree that the media have no right to accompany

the police in the execution of a warrant and can do so only when

authorized by law enforcement officers. See CNN brief at 28.

As amici ABC, et al., point out, “media representatives are

typically permitted to observe searches and seizures only at the

sufferance of law enforcement officials.” Amici ABC brief at 8.

In this case, law enforcement officers not only granted

permission for the media to trespass on private land, but

conspired to hide the media’s presence from the Bergers during

the search.

It would be strange indeed if government officials were

constitutionally authorized te conspire with the media, or any

third party, to violate state law in the execution of a warrant.

This type of government behavior simply cannot fall within the

ambit of reasonable searches under the Fourth Amendment.

Media involvement in the execution of a warrant without the

informed consent of the property owner always magnifies the

16

intrusion. This is contrary to the goal of the Fourth Amendment

to minimize impairment to the right of privacy.

THE PURPORTED ACCOMPLISHMENT OF SOME

LAW ENFORCEMENT PURPOSE DOES NOT

JUSTIFY THE EXPANDED INTRUSION OF THE

NEWS MEDIA IN OBSERVING AND RECORDING

THE EXECUTION OF A WARRANT

Petitioners would have this Court believe that the media

always serve a legitimate law enforcement purpose. They

suggest, for example, that media observation and recording of

the execution of a warrant necessarily enables public oversight

of law enforcement, deters crime, and curbs potential police

misconduct. See CNN brief at 10. This is patently untrue. The

media certainly did not serve these laudable functions in this

case or in the Wilson and Ayeni cases. Rather, they served only

their own mercenary interests.

It is hard to comprehend how CNN enabled oversight of

law enforcement in this case when CNN was anything but a

neutral observer. As the Ninth Circuit found, CNN was seeking

entertaining footage for its environmental television show. To

that end, CNN staged photo shoots and sought provocative

soundbites. See Berger, 129 F.3d at 515. CNN even edited the

audio and video tapes for television to imply the Bergers killed

hundreds of eagles when the evidence did not back up those

accusations. See Joint App. at 127.

The presence of CNN did not deter crime in this case but

precipitated it. The federal officers who allowed CNN to

accompany them to execute the warrant violated a federal statute

prohibiting third party involvement except in aid of the search.

See 18 U.S.C. § 1305. Also, CNN itself committed the crime of

trespass when it entered the Bergers’ private property and

surreptitiously recorded the Bergers’ conversations in their home

without their consent.

17

Finally, the media did not deter police misconduct. Rather,

the presence of the media induced police misconduct. For

example, prior to the search, the media were illegally given

information relative to the search and investigation that was

under seal by the court. See Berger, 129 F.3d at 515. Moreover,

the federal agents were more intent on playing to the cameras

than on conducting a search. /d.

In Wilson, the companion case to Berger, two reporters

accompanied the police as they entered the home of Mr. and

Mrs. Wilson to execute an arrest warrant for their son. The

subject of the warrant was not found in the home but news

reporters took snapshots of Mr. Wilson as he was wrestled to the

floor of his living room in his underwear with a police gun at his

head. They also took pictures of Mrs. Wilson as she entered the

living room from the bedroom dressed only in a shear

nightgown. Although the Fourth Circuit proposed hypothetical

reasons for the reporters’ presence in the Wilson home, such as

affording protection to the officers or facilitating accurate

reporting, the dissent correctly remarks that these reasons are not

“sufficiently necessary to the execution of an arrest warrant to

justify the undermining of the sanctity of the home... ~

Wilson, 141 F.3d at 132.

The unnecessary presence of a CBS camera crew in the

Ayeni case particularly rankled the Second Circuit. The court

was Outraged at the boorish conduct of special agents when they

intruded into a home looking for evidence of credit card fraud.

When the woman of the house tried to cover her crying son’s

face with a magazine, a federal agent took the magazine out of

her hand, threw it to the floor and told them to “shut up.” He

then directed the camera crew to film the woman's face while he

questioned her. To these antics, the Second Circuit declared:

“A private home is not a soundstage for law enforcement

theatricals.” The court further remarked:

The unreasonableness of the [agent's] conduct in

Fourth Amendment terms is heightened by the fact

that, not only was it wholly lacking in justification

based on the legitimate needs of law enforcement, but

it was Calculated to inflict injury on the very value that

the Fourth Amendment seeks to protect--the right of

privacy. The purpose of bringing the CBS camera

crew into the Ayeni’s home was to permit public

broadcast of their private premises and thus magnify

needlessly the impairment of their right to privacy.

Ayeni, 35 F.3d at 686.

As evidenced by these cases, the presence of the media is

just as likely to generate police grandstanding and misconduct as

it is to deter violence and crime. As a general proposition, it

does not follow that the media necessarily perform a legitimate

police purpose when they accompany law enforcement officers

in the execution of a warrant. Even if they did, this would not

suffice to justify law enforcement officers in allowing the media

to accompany them and to observe and record their execution of

a warrant, because the presence of the news media is not

reasonably necessary to the execution of the warrant. Moreover,

if the presence of the media were justified, because the media

could accomplish some general law enforcement goal such as

public oversight of law enforcement, the presence of the media

could be justified in any police action or investigation, not just

the execution of a warrant. However, the Framers apparently

believed that public oversight of law enforcement was

adequately addressed in the Sixth Amendment requirement of a

public trial.

Nevertheless, petitioners argue that “government execution

of a warrant is not a private event... .” CNN brief at 47. This

is only half true. While neither the subject of the warrant nor

law enforcement officers can preclude the news media from

covering a story, they can exclude the media from private

property. The right of a landowner to exclude others is “one of

the most essential sticks in the bundle of rights that are

commonly characterized as property.” Kaiser Aetna v. United

i

States, 444 U.S. 164, 176 (1979). As noted above, the media

transgressed the law of trespass when they entered the Berger

property and invaded their home with a hidden microphone.

This right to exclude forms the very basis for Fourth

Amendment privacy protection. This means the news media,

like the rest of the general public, may stand on a public street or

sidewalk and record the event from that vantage point, but they

cannot invade private property without the owner’s consent.

As Justice White pointed out in Branzburg v. Hayes,

408 U.S. 665 (1972), “[i}t has generally been held that the First

Amendment does not guarantee the press a constitutional right

of special access to information not available to the public

generally.” Id. at 684 (emphasis added).

In Branzburg, a newspaper reporter vas held in contempt

for refusing to divulge to a grand jury his personal knowledge of

criminal acts that he had obtained in pursuit of a story. In

addressing the right of the reporter to withhold such information,

this Court reviewed certain purported press privileges and

concluded, among other things:

Despite the fact that news gathering may be

hampered, the press is regularly excluded from

grand jury proceedings, our own conferences, the

meetings of other official bodies gathered in

executive session, and the meetings of private

organizations. Newsmen have no constitutional

right of access to the scenes of crime or disaster

when the general public is excluded .. . .

Branzburg v. Hayes, 408 U.S. at 684-85 (emphasis added).

By this reasoning, the media have no more right than the

general public to observe and record the execution of a warrant.

While “government execution of a warrant is not a private

event,” the warrant is not a license to turn a home into an open

house, or, as the court noted in Ayeni, “[a] private home is not

20

a soundstage for law enforcement theatricals.” Ayeni, 35 F.3d

at 686.

—>

CONCLUSION

The Fourth Amendment to the United States Constitution

guarantees that the sanctity of the home and the fundamental

right to privacy will not be abridged except by warrant or

“exigent circumstances.” CNN was not mentioned in the

warrant nor was its presence reasonably necessary to execute the

warrant. CNN accompanied federal agents only for its own

commercial purposes. When law enforcement officers orche-

strate the entry of third parties, including the media, onto private

property without the consent of the owner, “without the

authorization of a warrant, for no legitimate law enforcement

need and justified by no exigent circumstances, they violate the

clearly established protections of the Fourth Amendment.”

Wilson, 141 F.3d at 132. |

DATED: January, 1999.

Respectfully submitted,

M. REED HOPPER

Counsel of Record

ROBIN L. RIVETT

Pacific Legal Foundation

2151 River Plaza Drive, Suite 305

Sacramento, California 95833

Telephone: (916) 641-8888

Facsimile: (916) 920-3444

Counsel for Pacific Legal Foundation