Reporters Involved in Police Searches Info


Staff member
Privacy and private property

Privacy considerations go beyond public records. The U.S. Supreme Court and multiple federal appeals courts have found that reporters who accompany officials onto private property can be liable for invasion of privacy. The courts have also found that police officers can violate search and seizure laws by bringing a third party with them.

What that means for journalists is that, rather than independently witnessing an event, they must rely only the word of officials after an event takes place. It is akin to the difference between being an embedded reporter with a military unit in wartime, and hearing from Central Command what the unit did. It is not the same.

In 1999, the U.S. Supreme Court held that police officers can violate the Fourth Amendment when executing an arrest or search warrant by bringing members of the media into a private residence. However, in 2001 CNN and the federal government settled an invasion of privacy lawsuit brought by Montana ranchers. The decision affected the media's ability to accompany officials to certain places, such as police ride-alongs.

CNN was reporting on the alleged poisoning of eagles and other birds by ranchers. The case presented the legal question of whether the media could be liable for accompanying law enforcement officials on otherwise lawful searches of private persons.

The suit was filed by Paul and Erma Berger after Fish and Wildlife Service agents raided the Bergers' Montana ranch in March 1993 in search of evidence that they illegally poisoned the birds. Prior to the raid, the FWS granted a CNN camera crew permission to accompany the agents onto the property. During the search, the camera crew filmed the agents as they searched the Bergers' ranch, and recorded a conversation between Paul Berger and an FWS agent who wore a hidden microphone.

The Bergers sued the FWS and CNN in separate actions, asserting civil rights violations in both lawsuits and several wiretap and other state claims against the network. A U.S. district court judge in Billings dismissed the civil rights suit against the network in February 1996, holding in part that the reporters could not be "state actors" and thus cannot be sued for civil right violations. The district court also dismissed the other claims against CNN and its employees.

In November 1997, a panel of the U.S. Court of Appeals in San Francisco (9th Cir.) reversed the dismissal of the civil rights claim and the Bergers' claims of trespass and intentional infliction of emotional distress. The panel held that the news reporters had cooperated so closely with the FWS during the search that they became joint actors. That decision made CNN susceptible to a lawsuit for violating the Bergers' civil rights. (See NM&L, Winter 1998)

In May 1999, the U.S. Supreme Court sent the case back to the Ninth Circuit to reconsider its ruling in light of the high court's finding that the law was unclear at the time of the raid. At the same time, the Supreme Court ruled in a similar case that law enforcement officials were entitled to qualified immunity for their actions because the state of the law was uncertain at the time of the search. (Cable News Network, Inc. v. Berger; Wilson v. Layne)

In November 1999, the Ninth Circuit ruled the federal officials were immune to suit, but media participants were not. (Cable News Network, Inc. v. Berger)

The "lost stories" here are those where the media serves an important role as an independent observer of state power. Many searches and arrests lead to allegations of racial motives, police brutality or other improper behavior. Allowing news media to observe such scenes would typically infringe very little on a true "privacy" interest, and would serve a valuable role in helping a community understand how its police officers enforce the law.



Staff member
Media presence during home searches violates subjects' rights

U.S. SUPREME COURT--Law enforcement officers who permit the news media to accompany them across the threshold of a home when serving a search warrant violate the Fourth Amendment's prohibitions against unreasonable searches and seizures. The officers would be vulnerable to civil liability, a unanimous U.S. Supreme Court held in late May.

Eight of the justices, however, ruled that the officers involved in the 1992 search that sparked the lawsuit were entitled to qualified immunity for bringing a photographer and reporter from The Washington Post into the home of Charles and Geraldine Wilson in Maryland, as they searched for the couple's fugitive son, because the state of the law was not clear at that time. Justice John Paul Stevens dissented on this point, arguing that "it has long been clearly established that officers may not bring third parties into private homes to witness the execution of a warrant."

Writing for the Court, Chief Justice William Rehnquist said that the presence of the news media did not further the objectives of an authorized intrusion by law enforcement officers into a home to execute a search or arrest warrant. The ostensible benefits of media presence -- accurately informing the public about law enforcement efforts to control crime, minimizing police abuses and protecting officers from violence by the subjects of searches and arrests by recording those events -- were outweighed by privacy interests of homeowners.

"The Washington Post reporters in the Wilsons' home were working on a story for their own purposes. They were not present for the purpose of protecting the officers, much less the Wilsons. A private photographer was acting for private purposes, as evidenced in part by the fact that the newspaper and not the police retained the photographs," Rehnquist wrote.

The Court agreed in November 1998 to review conflicting opinions from federal appellate courts on the issue of whether the presence of the news media can transform otherwise legal searches into violations of the Fourth Amendment.

The U.S. Court of Appeals in Richmond (4th Cir.) had ruled 6-5 in April 1998 that the officers who searched the Wilson home in Maryland were immune from any liability for allowing the reporters to accompany them because it would not have been obvious to reasonable officers at the time that the media's presence violated the Fourth Amendment.

In a companion case, the Court vacated a ruling of the U.S. Court of Appeals in San Francisco (9th Cir.) that U.S. Fish and Wildlife officers who allowed a CNN camera crew to accompany them on a raid of a Montana ranch in 1993 violated the Fourth Amendment. The high court remanded the case to the Ninth Circuit to reconsider its ruling in light of the court's finding that the law was unclear at the time of the raid. (Hanlon v. Berger; Officers' Counsel: Richard Cordray, Grove City, Ohio; Wilson v. Layne; Officers' Counsel: Richard Cordray, Grove City, Ohio and Lawrence Fletcher-Hill, Baltimore, Md.)