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.
So police seeking out a warrant as opposed to a subpoena is pretty unusual in cases of journalistic leaks and is generally reserved for more serious crimes?
Yeah. I can't think of a recent case with a search warrant like this. There's Supreme Court precedent on this from 1978 with the the Zurcher v. Stanford Daily case. That seems to be the only significant Supreme Court precedent on search warrants and newspapers or journalists. The court in that case [ruled that the police department] had a search warrant based on legitimate probable cause [to search a newsroom].
You don't see too many judges going out on a limb like this to allow law enforcement into a news-gathering operation. You would need really extraordinary circumstances for a judge to sign off on something like that, and I just don't see extraordinary circumstances [in this case]. Even if somebody broke the law in giving the reporter the report, I would think law enforcement would have access to other information that would make the search warrant unnecessary.
What's the importance of California shield law in this case, and why didn't it apply?
California has a strong shield law. It has some absolute protections for reporters in many cases [and] more limited protections when reporters are part of litigation. But still, it's protection. The shield law is applicable to subpoenas, not search warrants. So again, this police procedure here really speaks to an understanding of where law enforcement can go with an investigation.
Could this have a chilling effect for future journalism?
Any time you see something heavy-handed like this, it does send a chill down the spines of reporters and journalists all over the country. But I hope this is just a blip and not indicative of a larger effort to root out sources.
This isn't the first time something like this has happened. Under the Obama administration, [there were multiple] leak investigations that involved reporters. The Bush administration had several high-profile leak investigations, and perhaps the highest profile was the Judith Miller case, where she ended up in jail for 85 days for not complying with a subpoena. But those were also subpoena cases; there were no search warrants. At least with a subpoena, there's more time to negotiate or to file motions to challenge these things. I hope this isn't signaling law enforcement to circumvent the subpoena process and frustrate the search warrants.
Our judges serve an important role in this as well. Establishing probable cause if there's a crime or information about a crime is usually something that a judge would be aware of, [along with] the First Amendment implications. It doesn't look like the judge paid much consideration [to] that.
This interview has been edited for length and clarity.
*Update—May 14th, 2019: This post has been updated with the correct spelling of Roy Gutterman's name.