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Pacific Standard Magazine Discusses Journalist Raid with Professor Roy Gutterman

Posted on Wednesday 5/22/2019
Roy Gutterman

SAN FRANCISCO POLICE RAIDED A FREELANCE JOURNALIST'S HOME. WAS IT LEGAL?

(Pacific Standard | May 13, 2019) On Friday, May 10th, freelance journalist Bryan Carmody awoke to police officers using a sledgehammer on the gate to his home in San Francisco. After Carmody allowed the police inside, they seized a variety of items, including computers, phones, and flash drives from his home and office. Carmody was detained in handcuffs for roughly five hours while police searched his home, KQED reports.

They were searching for the source of a leaked police report that Carmody had sold to three TV news stations, according to the San Francisco Chronicle.

The police report concerned the events surrounding the death of San Francisco public defender Jeff Adachi in February at age 59. Adachi was known for being a watchdog of police conduct, the Chronicle reports. Just hours after his death, information from the leaked police report—including that Adachi had died from accidental overdose of cocaine and alcohol—appeared on various news stations.

Two weeks ago, investigators asked Carmody to identify the source that had provided him with the report, but he declined. The raid was "a step in the process of investigating a potential case of obstruction of justice along with the illegal distribution of confidential police material," a spokesman for the San Francisco police told NPR.

To learn more about what made this raid unusual, Pacific Standard spoke to Roy Gutterman, an expert in communications law and First Amendment rights. Gutterman is the director of the Newhouse School's Tully Center for Free Speech, and a member the Freedom of Information Committee for the Society of Professional Journalists and the faculty committee for the Government Accountability Project in Washington, D.C.

If a reporter obtains leaked documents, have they committed a crime?

Reporters get materials and documents they shouldn't have all the time. That's not necessarily a crime—and it shouldn't be considered a crime—unless the reporter played a pivotal role in obtaining the documents illegally, such as breaking into an office or hacking into a computer system. But simply having sources who give you materials you shouldn't have does not and should not constitute a crime.

As far as we know, Carmody didn't obtain those documents illegally. Was it still legal for the cops to search his home and office?

The police got a search warrant—I can't believe a judge approved the search warrant in the first place. The question of the probable cause as to whether the reporter played a role in a leak is a huge step away from what should be permitted under both the First and Fourth Amendment.

Why would a judge approve a warrant in this case? And what is the significance of having a warrant issued instead of a subpoena?

When police show up at a house or a business with a search warrant, everybody that is subject to that search warrant has to comply. There are legitimate law-enforcement reasons for that: the destruction of evidence, the preservation of evidence. However, I don't think a leak investigation is the kind of criminal matter that would warrant an early morning execution of a search warrant. At least you can file a motion to quash and challenge it and attempt to get it thrown out of court [with a subpoena]. There's no such luxury with a search warrant.

Again, [law enforcement is] coming to a freelance reporter's home. They're not going to an organized crime hideout or a drug stash or any place like that. So it just seems extremely heavy-handed. Law enforcement knew what they were doing: They knew that they could just go right in and execute the search warrant without having to worry about a legal challenge on the spot ...

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