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AN INVASION OF PRIVACY:
THE MEDIA'S INVOLVEMENT IN LAW
ENFORCEMENT ACTIVITIES

by Henry H. Rossbacher
Tracy W. Young
Nanci E. Nishimura
Rossbacher & Associates

Washington Legal Foundation
Critical Legal Issues
Working Paper Series No.80
January 1998

Washington Legal Foundation
on the World Wide Web:
http://www.wlf.org

TABLE OF CONTENTS

ABOUT WLF'S LEGAL STUDIES DIVISION

ABOUT THE AUTHORS

INTRODUCTION

I. The Ayeni Cases

A. United States v. Sanusi

B. The District Court Decision - Ayeni v. CBS, Inc.

C. The Second Circuit Decision - Ayeni v. Mottola

II. The Berger Case

CONCLUSION

ABOUT WLF'S LEGAL STUDIES DIVISION

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ABOUT THE AUTHORS

Henry H. Rossbacher is the principal of Rossbacher & Associates, a law firm situated in Los Angeles, California, which specializes in civil, criminal and appellate litigation in state and federal court. He has practiced law for over 25 years. Included in his experience are seven years as Assistant United States Attorney and Senior Litigation Counsel for the Department of Justice in Los Angeles and two years as Adjunct Professor of Law at the UCLA School of Law. Mr. Rossbacher is a graduate of the Wharton School of Finance and Commerce of the University of Pennsylvania and of the University of Virginia Law School. Rossbacher & Associates litigated the civil cases of Sanusi, Ayeni and Berger.

Tracy W. Young is a Senior Attorney with Rossbacher and Associates. She received her B.A. from New York University, Cum Laude, and her J.D. from Cardozo School of Law in New York.

Nanci E. Nishimura is a Senior Attorney with Rossbacher & Associates. She received her B.A. from University of Southern California and a M.A. from Waseda University, Tokyo, Japan. Ms Nishimura received her J.D. from The Columbus School of Law at The Catholic University, Washington, D.C.

AN INVASION OF PRIVACY:
THE MEDIA'S INVOLVEMENT IN
LAW ENFORCEMENT ACTIVITIES

by
Henry H. Rossbacher
Tracy W. Young
Nanci E. Nishimura
Rossbacher & Associates

INTRODUCTION

Thoreau heartily accepted the motto, "that government is best which governs least."(1) Our forefathers braved treacherous oceans and alien lands emboldened by that belief, after enduring the Crown's heavy hand invading and restricting their religious and personal lives. That is why, among the many freedoms embodied in our Constitution, the right to privacy was included in the Fourth Amendment to protect individuals from arbitrary intrusion by the state.(2) The right has been fundamental to the establishment of a more tolerant society devoted to the principles of liberty and justice for all.(3)

As the United States Supreme Court has repeatedly emphasized, the principal object of the Fourth Amendment is to restrain government incursions into the private lives of individual citizens.(4) The Warrant clause of the Fourth Amendment adds a further protection by interposing a detached and neutral judicial officer with authority to assess the weight and credibility of information provided by investigating law enforcement officers and thereby restrain their otherwise unbridled discretion.(5)

The promise by the media to provide government officials with massive publicity and the public's voracious appetite for "reality-based" police shows are now threatening the protection of privacy guaranteed by the Fourth Amendment and the case law interpreting it.(6) Two Federal Circuit Courts of Appeals, the Second and the Ninth, have recently taken affirmative steps to curtail the insidious practice of law enforcement officers entering the private property of individuals under investigation with television cameras in tow. In Ayeni v. Mottola, 35 F.3d 680 (2d Cir. 1994), cert. denied, 514 U.S. 1062 (1995),(7) and Berger v. Hanlon, et al., 129 F.3d 505 (9th Cir. 1997),(8) both courts held that a search of private property videotaped by commercial television cameras is unconstitutional, and the federal officers involved are not protected from suit or liability by qualified immunity. The Berger court further held that the media participants may be held liable in damages for violating constitutional rights for acting "under color of federal law."(9) The authors of this article served as co-lead counsel in both of these cases.(10)

The following discussion of these pivotal decisions will focus on the strong, historical underpinnings for their holdings, as well as the very real problems with collaboration between the press and the police to invade privacy. Fourth Amendment jurisprudence has traditionally focused on reasonableness, and whether the action in issue is in furtherance of a legitimate law enforcement purpose. The actions of the federal officers in the Ayeni and Berger cases were not motivated by law enforcement goals, but were undertaken to create television entertainment and were, thus, patently unreasonable.(11) As noted by the Second Circuit in Ayeni, "A private home is not a sound stage for law enforcement theatricals."(12)

I. THE AYENI CASES

The Ayeni case arose from a search in March 1992, by armed Secret Service Agents, of a credit-card fraud suspect's home in Brooklyn, New York. The agents brought along a CBS camera crew on assignment for the program "Street Stories" to video and audiotape the search. They did so in spite of explicit direction of the Assistant United States Attorney in charge of the investigation "not to permit such an adventure."(13)

One of the agents wore a wireless microphone and provided a running commentary of the proceedings. The suspect, Babatunde Ayeni, was not at home, but his wife, clad only in a dressing gown, and their five-year old son were present. Both were visibly shaken by the agents' invasion and the presence of the large video camera. During the search, the CBS camera crew videotaped Mrs. Ayeni and her son repeatedly, in spite of her objections, and focused close-up shots on the family's personal belongings and documents. Regardless that no evidence of fraud was found, the wired agent, in an on-camera interview, expressed his belief that Babatunde Ayeni was guilty.(14)

A. United States v. Sanusi

Any discussion of the Ayeni case would be incomplete without reference to the underlying criminal matter. In the criminal case against him, Ayeni subpoenaed the videotape of the search from CBS. CBS moved to quash the subpoena on First Amendment and journalistic privilege grounds. Federal District Court Judge Jack B. Weinstein denied the motion and ordered CBS to turn over the tape, which had never been aired.(15) He reasoned that the tape was material to Ayeni as a "window through which he could demonstrate to the jury . . . the government's zeal to arrest him and its failure to produce any evidence after tearing apart his home."(16) The court further found the images of a cowering wife and child "gripping" and likely to influence a jury in Ayeni's favor.(17) Judge Weinstein was so outraged at the constitutional violations and the fact that the Secret Service had disregarded the direction of the Assistant United States Attorney in charge not to bring a commercial camera crew along on the search, he ordered the United States Attorney "to bring this matter and the court's opinion to the attention of the highest authority in the United States Secret Service."(18)

The Sanusi opinion analyzed the Fourth Amendment and the right to privacy it embodies, discussing the early English and United States Supreme Court authorities defining the right as protecting "the sanctity of a man's home and the privacies of life."(19) In statements extremely critical of both the agents and the CBS camera crew, the court cited to the early abuses of the Crown, both through the use of general warrants and the writs of assistance used in the American colonies.(20)

The court, in ordering CBS to produce the unpublished videotape of the search, stated:

That CBS trespassed upon defendant's home and engaged in conduct, with the connivance of the government, directly contrary to Fourth Amendment principles . . . bears upon the court's evaluation of CBS's news gathering privilege. The First Amendment is a shield, not a sword. Even a reporter must accept limits on how far upon another person's privacy he or she may intrude . . ..(21)

Ayeni agreed to a deal with the government in which he pled guilty to attempted credit card fraud and was sentenced to probation and a fine.(22) The government's case had been irreparably weakened by the Secret Service's conduct in violating the Constitution and resulted in a ruling that the videotape of the search would be material exculpatory evidence in a jury trial likely to influence a jury toward acquittal.(23) The government was fortunate the prosecution was not dismissed.

B. The District Court Decision - Ayeni v. CBS, Inc.

Mrs. Ayeni and the Ayenis' minor son, Kayode, then sued CBS, the CBS "Street Stories" producer, Meade R. Jorgensen, United States Secret Service Special Agent James Mottola, seven unknown Secret Service Special Agents and two unknown United States Postal Inspectors. The Ayenis sought civil damages for violation of their Fourth Amendment right to privacy and related common law torts, including trespass and infliction of emotional distress.(24) The damage claim for violation of constitutional rights was brought pursuant to the 1971 Bivens decision by the United States Supreme Court.(25)

Special Agent Mottola, CBS and producer Jorgensen moved to dismiss the complaint under the doctrine of qualified immunity. They claimed that at the time of the search, the Fourth Amendment right to privacy asserted by the plaintiffs was not "clearly established," and it was "objectively reasonable" for them to believe their acts did not violate the Constitution.(26) CBS asserted that its acts were protected because they were undertaken with the permission of the government.(27)

United States District Court Judge Jack B. Weinstein, the same judge as in Sanusi, disagreed. Judge Weinstein denied CBS' and Jorgensen's motion on the ground that as private parties rather than government officials, CBS and producer Jorgensen were not entitled to invoke any government immunity doctrine because they were acting merely as "agents" of the government.(28) Judge Weinstein denied Mottola's motion on the ground that "well established Fourth Amendment principles" prohibit government agents from allowing "a private citizen into a home to photograph for non-governmental purposes during the execution of a search warrant . . .."(29) The fact that no prior case law had so held was deemed immaterial by the court. "Rather, '[i]t suffices that the [agent] be aware of general well-developed legal principles."'(30)

The District Court drew the following legal principles from the Fourth Amendment and Supreme Court and other case law applying it,(31) as well as federal statutory authority(32): That the Fourth Amendment (1) guarantees against unreasonable governmental intrusions into areas where citizens have a reasonable expectation of privacy, particularly the home;(33) (2) ensures that when the government does enter private property, the interruption of privacy is minimized and that the search is closely tailored to the purpose of the warrant; and, (3) precludes private parties from searching and seizing private property unless they are officially aiding the government in the execution of the warrant.(34)

Judge Weinstein found "Agent Mottola's act of facilitating the CBS camera crew's entry into the apartment and its filming of the search. . .was so far from then well established acceptable constitutional behavior that no case law precedent was needed to alert him to the fact that the execution of a warrant for the benefit of private persons violated the Constitution."(35) The court compared Mottola's acts to those of "a rogue policeman using his official position to break into a home in order to steal objects for his own profit or that of another."(36) The District Court also considered CBS' videotaping to be an unconstitutional seizure of private images.(37)

C. The Second Circuit Decision - Ayeni v. Mottola

Mottola appealed to the United States Court of Appeals for the Second Circuit. CBS and Jorgensen did not participate in the appeal after reaching a

confidential settlement with the Ayenis.(38) The Second Circuit, in a unanimous published opinion by Chief Judge Jon O. Newman, affirmed Judge Weinstein's decision, reiterated his protection of the sanctity of Americans' homes provided by the Fourth Amendment, and expanded the qualified immunity analysis.(39) The Court of Appeals held that: (1) the Fourth Amendment prohibited Mottola from bringing the CBS camera crew into the Ayenis' home; (2) the Ayenis had a clearly established right to privacy under the Fourth Amendment to be protected from such actions; and, (3) Mottola could not have reasonably believed his actions were constitutional.(40)

The Court of Appeals reasoned, based on traditional Fourth Amendment principles, that

. . .law enforcement officers conducting searches under a warrant are limited in their conduct to either (a) actions expressly authorized by the warrant, or (b) such further actions as are impliedly authorized because they are reasonably related to accomplishing the search authorized by the warrant or accomplishing additional legitimate law enforcement objectives.(41)

Mottola exceeded "well-established principles" by bringing into the Ayeni home "persons who were neither authorized by the warrant to be there nor serving any legitimate law enforcement purpose by being there . . .."(42)

The Ayeni decision was not based on the identity of the private intruders, rather on the intruders' function and whether their presence was expressly or impliedly authorized by the search warrant. The fact that the intruders in Ayeni were the media, although material, was not dispositive, but served to further offend the court and the Constitution:

The unreasonableness of Mottola'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 to privacy. The purpose of bringing the CBS camera crew into the Ayenis' home was to permit public broadcast of their private premises and thus to magnify needlessly the impairment of their right to privacy.(43)

The issue of unlawful seizure by videotape of private images and by sound recording, as opposed to the search, was treated separately and concluded in the Ayenis' favor. The Court of Appeals held:

We agree with the District Court that the video and sound recordings were "seizures" under the Fourth Amendment, and rendered the search far more intrusive than it needed to be.(44)

The matter was remanded to the District Court for further proceedings.(45)

II. The Berger Case

In Berger, the United States Court of Appeals for the Ninth Circuit was asked to address a factual scenario similar to that in Ayeni, but also to reach issues directly involving the liability of the media under Bivens and common law torts. The Berger case involved a written agreement between Cable News Network, Inc. (CNN) and the Federal government allowing CNN to accompany United States Fish and Wildlife Service agents during their search of a 75,000-acre Montana sheep ranch owned by Paul and Erma Berger, an elderly couple. CNN and its parent, Turner Broadcasting Systems, Inc., "wanted footage of the discovery of evidence showing that Paul Berger was poisoning eagles, and the government wanted the publicity."(46) The footage would be used for broadcast on CNN's and TBS' television shows "Earth Matters" and "Network Earth."(47)

On March 11, 1993, shortly before the search, Kris McLean, the Assistant United States Attorney in charge of the investigation (and a defendant in the Bergers' lawsuit), and CNN correspondent Jack Hamann executed an agreement on CNN letterhead in which the United States Attorney's Office for the District of Montana agreed to allow CNN to accompany USFWS agents while they executed a search warrant at the Berger ranch. In return, CNN agreed to embargo any broadcast of the footage until the occurrence of one of several events, including resolution of the criminal case by plea bargain, instruction of a jury to avoid television, Mr. Berger's waiver of a jury trial, or the government's decision not to bring charges.(48)

In accordance with this agreement, CNN personnel attended and filmed a pre-search briefing and were made privy to confidential information, including the sealed search warrant, in violation of the Privacy Act and the Department of Justice's own guidelines regulating prosecutors' relations with the media.(49) The government had earlier obtained sealed search and seizure warrants without disclosing the participation of CNN to the issuing Magistrate Judge.(50)

The next morning, CNN personnel joined twenty-one armed agents and other law enforcement personnel, including AUSA McLean disguised as a federal agent,(51) in a caravan of trucks to converge on the Berger ranch and execute the search warrant. The force was "large enough to take on Rambo."(52) Paul Berger had no criminal record, no history of violence, had never threatened the government, and was seventy-one (71) years old, ill with emphysema and only recently released from the hospital at the time. His wife was eighty-one (81) years old and also ill.(53) Never mind, the onslaught made for good television.

CNN did not just ride along. They mounted video cameras both on the outside and inside of government vehicles and "documented every move made by the federal appellees."(54) They also wired USFWS Special Agent Joel Scrafford with a hidden CNN microphone that continuously transmitted live audio only to CNN technical personnel. At no time were the Bergers aware of CNN's presence, that the cameras belonged to the media, or that Agent Scrafford was secretly recording them. AUSA McLean did not participate in the search. He was there to be interviewed by CNN for their upcoming cable program.(55)

Agent Scrafford not only recorded outside on the ranch grounds and inside out-buildings, he entered the Bergers' home, which was explicitly excluded from being searched by the written limits of the search warrant, and recorded agents interrogating Mr. and Mrs. Berger.

After eight hours of searching, the agents did not find any evidence of dead eagles. Mr. Berger was, nonetheless, charged with a number of felonies related to the killing of eagles; the government alleged that he used a pesticide to kill predators, including eagles, by applying it to sheep carcasses. Mr. Berger was acquitted of all charges except the misdemeanor charge of using a pesticide contrary to its labeling. Regardless, CNN broadcast both video footage and sound recordings from the search, including recordings made inside the Berger home, in a segment entitled "Ring of Death." Correspondent Hamann introduced the segment by implying that Mr. Berger had killed hundreds of eagles. The show was broadcast by CNN and TBS nationally and internationally approximately ten times.(56)

The Bergers sued AUSA McLean, the various federal agents, CNN and TBS, correspondent Jack Hamann, and CNN technical personnel present at the search in two complaints. The complaints, which proceeded on identical courses, sought civil damages for violations of the Fourth Amendment right to privacy under Bivens, violations of the Federal wiretapping statute,(57) and related common law torts, including trespass, infliction of emotional distress and conversion, and sought an injunction against the media's further broadcast of the illegally obtained video footage and sound recordings.(58)

United States District Judge Jack D. Shanstrom dismissed the complaints and the Bergers appealed. In a lengthy published, unanimous opinion by Circuit Court Judge Mary M. Schroeder, joined by Circuit Court Judge Andrew J. Kleinfeld and District Court Judge Rudi M. Brewster,(59) the Ninth Circuit reversed Judge Shanstrom on all but the wiretapping, conversion and injunction claims. This discussion will focus on the portions of the Berger opinion that relate to the Fourth Amendment claims.

At the outset, the Berger court was not only asked to address the issue raised in Ayeni, whether the Federal agents were protected from suit and liability under qualified immunity; it was also asked to decide whether CNN had acted "under color of law," which would render the media liable for constitutional violations under Bivens. The court's response was clear and emphatic. Videotaping and recording by the media for commercial purposes during a government search on private property is unconstitutional, and the officers involved are not protected by qualified immunity.(60)

The Bergers' situation presented a particularly egregious example of the problems posed by concerted action by the media and government, and the Berger court considered the extent of their mutual involvement material. The court did not, however, limit its holding to only extreme cases of joint action. It cited to and approved the Ayeni decision and noted another recent Ninth Circuit decision that had also approved Ayeni in recognizing that the videotaping of searches for non-law-enforcement purposes might render the underlying search unreasonable.(61) The court emphasized the Ayeni court's reliance on both federal statutory prohibitions against the participation in by unauthorized individuals and the needless magnification of the impairment of the right to privacy by publicizing the search.(62) The court further noted a Fourth Circuit decision denying qualified immunity to a federal officer who had brought a private individual along on a search of private property because the latter was acting solely for private purposes.(63)

The Berger court noted, and distinguished, decisions by three other circuits that appear to differ in their approach to this issue, granting qualified immunity or finding the search reasonable where officers allowed the media to tag along.(64) In one case decided by the Sixth Circuit, the search warrant authorized photography and videotaping.(65) This fact alone did not appear dispositive to the Ninth Circuit, which focused on the non-law enforcement purpose of the recording in Berger, finding the publicity aspect of the media presence in direct conflict with protection of privacy under the Fourth Amendment.(66)

Making explicit what had been implicit in Ayeni,(67) the Berger court addressed the media's liability under Bivens for violating the Bergers' Fourth Amendment rights. The media, as private parties, could be held liable only if they acted "under color of law."(68) The court employed the "joint action" test enunciated by the United States Supreme Court and concluded that:

the "inextricable" involvement of the media with both the planning and execution of this search, the government's active involvement with the media's news gathering activities, and the mutually-derived benefits, is more than enough to make the media government actors.(69)

CONCLUSION

The Ayeni and the Berger courts were troubled by the reality of government and the press marching hand-in-hand to achieve higher ratings. In light of the traditional roles played by each, where the media generally serve as a government watchdog and the government seeks to govern without unduly interfering with personal, individual liberties, the media and government make strange bedfellows. The corrupting influence of their joining forces to create titillating television shows has blurred roles, with government agents becoming reporters and reporters becoming government agents. The negative effects of this insidious arrangement, the weakening of both the media and the government, are exemplified by the Berger and the Ayeni cases.

In Ayeni, the media's involvement in the pre-indictment search weakened the prosecution's case, resulting in an impaired prosecution. An innocent woman and child were cynically subjected to indecent indignities solely for commercial purposes. In Berger, CNN executed an agreement giving the government control over when the network could publish video of the search.(70) The Oft-made media argument that their presence at a search could serve to document police abuses was shown to be disingenuous. If the agents had beaten the elderly Bergers, CNN would not have been able to immediately report that fact. The press had sold its independence to the police. The police had sold its public trust to the press.(71)

In both cases, law enforcement was distracted from its work by the media presence; the agents were required to perform for the cameras and to "baby-sit" their lay charges tagging along on a police function.(72) In fact, the written agreement exposes the tacit, implicit, and unavoidable agreements between the media, whenever they rely on the government for access to stories, and the government, whenever it violates the limits on its police powers to benefit itself by aligning itself with the media: the media will subordinate its independence and the government will perform for the cameras. The result is prosecutions motivated by publicity, not the public interest. The losers are the citizens of this country and their constitutional rights.

Ayeni and Berger and the constitutional holdings they contain are important. The media and the government, the press and the police, have been reminded that these practices are now and always have been unconstitutional. Both are subject to lawsuits for substantial damages if they violate these fundamental constitutional rights, as they should be. The constitutional right of privacy is fundamental to the American conception of liberty. "The Right To Be Let Alone," free from venal intrusions by the media and government, is and has been, self-evident since the Revolution.

1. Henry David Thoreau, Civil Disobedience (1866).

2. The Fourth Amendment to the United States Constitution provides that:

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.

3. The Declaration of independence (U.S. 1776).

4. See Soldal v. Cook County, 506 U.S. 56 (1992); Winston v. Lee, 470 U.S. 753, 758 (1985); I.N.S. v. Delgado, 466 U.S. 210 (1984); State of Delaware v. Prouse, 440 U.S. 648 (1979); Warden, Md. Penitentiary v. Hayden, 387 U.S. 294 (1967); Jones v. United States, 357 U.S. 493 (1958).

5. See Wong Sun v. United States, 371 U.S. 471 (1963).

6. As noted by Elsa Y. Ransom, in her 1996 article, Home: No Place for "Law Enforcement Theatricals" - the Outlawing of Police/Media Home Invasions in Ayeni v. Mottola:

Scenes of law enforcement officers entering the homes of suspects have long been a fixture in television news. In recent years, with the advent of reality-based police shows [i.e., COPS], such scenes have become more revealing as the camera began to follow the police inside to give the viewer a close-up look at the search and arrest. At the 1995 meeting of the National Association of Television Program Executives, fifteen new reality-based entertainment programs were unveiled, including at least three that were exclusively devoted to fighting crime.

16 LOY. L.A. ENT. L.J. 325 (1996), citing David Tobenkin, Stations Face New Reality: Syndicators Have Host of Offerings, Including Magazine, Health, Law Enforcement Entries, Broadcasting & Cable (Jan. 23, 1995) at 58. These programs are among the most profitable on the air. The minimal costs of non-union camera crews and unknown producers, plus their popularity in syndication abroad, gives an overwhelming economic incentive for their production.

7. The Second Circuit affirmed the District Court's decision upholding the complaint against both CBS and the federal agents. The District Court found neither had immunity for their wrongful actions. Ayeni v. CBS, Inc., 848 F.Supp. 362 (E.D.N.Y. 1994). The Ayeni appeal resolved an interlocutory issue of qualified immunity arising from the District Court's denial of a single complaint for violation of the Fourth Amendment and related state claims against the government agents, the media entity and individuals responsible for the search: Tawa Ayeni and Kayode Ayeni, a minor, by Tawa Ayeni, his mother and natural guardian v. CBS, Inc., a New York corporation, Meade R. Jorgensen, James Mottola, Seven Unknown Special Agents of the United States Secret Service and Two Unknown Postal Inspectors of the United States Postal Service, D.C. No. CV 93-0957, Appeal Nos. 94-6041(L) and 6047.

8. The Berger decision resolves two separate appeals from the dismissal of two complaints for violation of the Fourth Amendment and related state claims against the government agents, media entities and individuals responsible for the search: Paul W Berger and Erma R. Berger v. Rodney C. Hanlon; Joel Scrafford; Richard C. Branzell; Robert Prieksat; Kris A. McLean; Turner Broadcasting System, Inc.; Robert Rainey; Donald Hooper; United States of America, D.C. No. CV-95-00046-JDS. Appeal No.96-35251; and Paul W. Berger and Erma R. Berger v. Jack Hamann; Cable News Network, Inc., D.C. No. CV-94-00046-JDS, Appeal No.96-35266.

9. See Berger v. Hanlon, et al., 129 F.3d 505, 509-511 (9th Cir. 1997). Of course, the Constitution's restrictions apply equally to all media, whether print, audio or television

10. The Sanusi and Ayeni criminal and civil cases were litigated by Rossbacher & Associates with Harry C. Batchelder, Jr., Esq. of New York, New York. The Berger civil actions have been brought by the Rossbacher firm with Charles "Timer" F. Moses, Esq. and Jay F. Lansing, Esq. of the Moses Law Firm of Billings, Montana, Mr. Berger's counsel in the criminal prosecution.

11. Id. at *5-7; See Ayeni, 35 F.3d at 686.

12. Id. at 686. Judge Weinstein made a similar point: "CBS had no greater right than that of a thief to be in the home, to 'capture' the scene of the search on film and to remove the photographic record." Ayeni, 848 F.Supp. at 368.

13. United States v. Sanusi, 813 F.Supp. 149, 161 (E.D.N.Y. 1993).

14. The underlying facts are from the Sanusi decision by Judge Weinstein, in which he denied CBS, Inc.'s motion to quash a subpoena seeking the unpublished videotape of the search for use in the criminal charges against Babatunde Ayeni.

15. Id.

16. Id. at 159-160.

17. Id.

18. Id. There is no record that any Secret Service personnel were disciplined as a result of this matter. To the contrary, Department of Justice attorneys flatly denied that the Constitution had been violated, as they have in the Berger case.

19. Id. at 157, quoting from Boyd v. United States, 116 U.S. 616, 630 (1886), interpreting the seminal English case on the subject, Entick v. Carrington & Three Other King's Messengers, 19 State Tr. 1029 (1765), an English trespass action involving an invasion of a home.

20. Id. In Buonocore v. Harris, 65 F.3d 347 (4th Cir. 1995), the Fourth Circuit sets out an extensive discussion of the relationship between the injustices in "the colonies" caused by general warrants and writs of assistance, the Americans' revulsion at their use, and the Founding Fathers' determination that the Constitution prohibit their incorporation into American law.

The United States is not the only former British Colony to find abuses of the right of privacy to be inimical to freedom. Chief Justice McEachern of the Court of Appeal for British Columbia, in a very recent opinion for a unanimous court, suppressed all the evidence seized by police during a search pursuant to a search warrant where the Canadian Broadcasting Corporation accompanied the authorities in entering the defendant's home and filmed the search, the defendant's arrest, and his home. The opinion underlines the universal significance of protecting these rights:

The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state. Our private residences are the places where we have the highest possible expectation of privacy against all intrusions except those authorized by law. The importance of all this is demonstrated when one thinks for a moment of the affront to democracy and decency if, as is sometimes the case, a search warrant is issued against an innocent person and a search of his or her residence is conducted with media coverage such as occurred in this case.

Regina v. Richard Andre West, Docket Number CA 022220 (Dec. 10, 1997 Vancouver, B.C.)

21. Id. at 160.

22. Ayeni had been indicted for conspiring to commit and committing credit card fraud in violation of 18 U.S.C. §§ 1029(a)(3) and (c)(1). See Sanusi, 813 F.Supp. at 151.

23. Sanusi, 813 F.Supp. at 161. The Secret Service had deliberately violated the Ayenis' rights with full knowledge that their conduct might eventually result in a dismissal of the prosecution for unconstitutional conduct. Set forth below is a portion of the deposition of Special Agent Betty Conkling, press assistant to Special Agent-in-Charge ("SAC") Heavey of the New York Resident Agency of the Secret Service, testifying about her conversations with SAC Heavey on the night of the raid just before taking the CBS camera crew into the Ayeni home:

A [T]he policy of the Eastern District [U.S. Attorney]. . .was that they would not sanction such activities with the press because of an ongoing investigation. .

Q What did SAC Mr. Heavey say?

A . . .that he would be willing to take the risk because the benefit far outweighed the risk.

Q What was the risk that he was willing to take?

A I believe we spoke about the possibility of tainting evidence.

Q When you and Mr. Heavey were taking the risk, Mr. Heavey was taking the risk of the tainting of the evidence, it would be because the conduct of the Secret Service was illegal; is that right?

A That the evidence would be tainted.

Q Because of the illegality of the conduct of the Secret Service?

A Yes.

Q You all knew that before you did this?

A It was discussed, yes.

(6/14/95 deposition transcript of Betty A. Conkling at [Page(s):line(s)] 59:1-60:10, 85:20-86:7.)

It later came to light that the Secret Service took the CBS camera crew into other homes that night as well and allowed CBS to attend the confidential pre-search briefings.

24. See Ayeni v. CBS, Inc., 848 F.Supp. 362 (E.D.N.Y. 1994), aff'd, Ayeni v. Mottola, 35 F.3d 680 (2d Cr. 1994), cert. denied, 514 U.S. 1062, 115 S.Ct. 1689 (1995).

25. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

26. Ayeni v. CBS, Inc., 848 F.Supp. at 365; Harlow v. Fitzgerald, 457 U.S. 800 (1982); Anderson v. Creighton, 483 U.S. 635 (1987); see also Soares v. Connecticut, 8 F.3d 917, 920 (2d Cir. 1993).

27. Id. at 367.

28. Id. at 367, citing Wyatt v. Cole, 112 S.Ct. 1827, 1833 (1992).

29. Id. at 366, 368.

30. Id. at 367, citing Jefferson v. Ysleta Indep. Sch. Dist., 817 F.2d 303, 305 (5th Cir. 1987).

31. Id. at 366, and the cases cited therein.

32. See 18 U.S.C. § 3105, providing that a person not specifically authorized by a search warrant may not participate in a search unless in aid of the officer authorized by the warrant.

33. The pivotal case relied on by the court for this proposition was Katz v. United States, 389 U.S. 347 (1967).

34. Id. at 365-368.

35. Id. at 368.

36. Id.

37. Id.

38. See Ayeni v. Mottola, 35 F.3d at 684 n.2.

39. Id. at 685-686. The three-member panel deciding the Ayeni interlocutory appeal included Chief Judge Newman, Judge Pierre N. Leval and Judge Lawrence W. Pierce.

40. Id. at 686.

41. Id. at 685 (footnotes omitted).

42. Id. at 686.

43. Id.

44. Id. at 688, citing Katz, supra, 389 U.S. at 360-361.

45. The authors negotiated a confidential settlement between the government and the Ayenis before trial.

46. Berger, 129 F.3d at 507.

47. Id.

48. Unless otherwise stated, these facts are based on the recitation included in the Ninth Circuit's opinion. Id. at 508-509.

49. See 5 U.S.C. § 552a (Privacy Act); 28 C.F.R. § 50.2(b); Department of Justice Manual §1-7.001 at 1-285 (1990-1 Supp.) and 1-7.000 (1993 Supp.).

50. See First Amended Complaint filed on May 16, 1995, U.S.D.C. Mont. Case No. CV 95-46-BLG-JDS.

51. Id.; see also the Briefs of Appellants filed in the United States Court of Appeals for the Ninth Circuit, Case Nos. 96-35261 and 96-35266, Statement of Facts at 4-10.

52. See Kevin Helliker, Feathers Fly - CNN Got Its Story About Poisoned Eagles But Rancher Cries Foul, WALL ST.J. at 1A (Sept. 25, 1997).

53. Id.; see also First Amended Complaint filed on May 16, 1995, U.S.D.C. Mont. Case No. CV 95-46-BLG-JDS.

54. Berger, 505 F.3d at 509.

55. See Brief of Appellants, n.51, supra.

56. Id. at 9.

57. 18 U.S.C. §§ 2510, et seq.

58. See n.8, supra. The United States substituted for McLean on the trespass claim and was dismissed with prejudice. The Bergers' claim against the United States under the Federal Tort Claims Act is currently pending.

59. District Court Judge Rudi M. Brewster sitting by assignment from the United States District Court for the Southern District of California.

60. See Berger, 129 F.3d 505.

61. Id. at 512, citing Marks v. Clarke, 102 F.3d 1012 (9th Cir. 1996) (as amended on denial of rehearing Feb. 26, 1997).

62. Id.

63. Id., citing Buonocore v. Harris, 65 F.3d 347, 456 (4th Cir. 1995).

64. Id., citing Stack v. Killian, 96 F.3d 159 (6th Cir. 1996); Parker v. Boyer, 93 F.3d 445 (8th Cir. 1996), cert. denied, 117 S.Ct. 1081 (1997); Wilson v. Layne, 110 F.3d 1071 (4th Cir. 1997), vacated July 30, 1997. The Fourth Circuit in Wilson v. Layne has reheard the case en banc and has now set the case for another reargument en banc.

65. The Stack v. Killian case involved a 1991 search that pre-dated the Sanusi and Ayeni decisions and the Fourth Circuit decision in Buonocore. The Circuit noted that Ayeni was a "trend in the law" in 1991. The plaintiff's claim alleged a Fourteenth Amendment privacy violation that had previously been rejected in another case.

66. Berger, 129 F.3d at 511.

67. Judge Weinstein had found the media liable, as noted above, at the District Court level in Ayeni v. CBS, Inc.

68. Id. at 514, citing Howerton v. Gabica, 708 F.2d 380 (9th Cir. 1983).

69. Berger, 129 F.3d at 515 (citations omitted).

70. Mr. Helliker's recent article in the wall Street Journal observed that:

The allure of access often tempts the media into deals that give the authorities substantial power to shape both the content and timing of stories.

See n.52, supra.

71. One preeminent journalist has found the government's and journalists' conduct in Berger "collusive" and reprehensible, condemning Turner and Time Warner for taking "the media's shameless claim to a right to trespass to a preposterous extreme." Max Frankel, A Case of Sheep v. Coyotes - When the Police and News Crews Collude, They Prey on the Unsuspecting, N.Y. TIMES MAG. at 30 (Dec. 21, 1997).

72. The execution of search and arrest warrants on private property can often be dangerous work, entailing as it does the invasion of private homes and apartments where armed suspects are often unwilling to peaceably comply with law enforcement demands. A reporter or camera crew technician could easily be shot or harmed in some way during one of these "news gathering" excursions, a likely scenario that raises unnecessary questions, and risks, of responsibility and liability. It is wrong for law enforcement agencies to endanger their personnel by requiring that they perform guard or guide duties for untrained "civilians" while they perform the often dangerous and always stressful job of executing warrants in criminal cases. These duties are also inherently demeaning to law enforcement personnel.

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