Friday, July 5, 2002
Bay Area Newspaper Searches Spark Questions of Legality
From Staff and Wire Service Reports
Media advocates said Wednesday that police may have violated state and federal law in serving search warrants on three Bay Area newspapers.
Jim Ewert, legal counsel for the California Newspaper Publishers Association, said the search appeared to violate shield laws that provide protection for newsrooms.
“If a reporter has confidential sources that are used for investigative purposes and sources know that cops can obtain that person’s identity...they’re going to be a lot less willing to come forward because they don’t want to have their identities revealed,” he said.
The warrants were served last week on three Bay Area newspapers by Palo Alto police following up on an investigation into illegal massage parlors.
The police requested that an employee at the Palo Alto Daily News print out invoices for customers who purchased newspaper ad space for their massage parlors. The paper complied with the request.
Those advertisers were the same people arrested May 11 in a raid of Palo Alto-area massage and acupuncture parlors that were allegedly operating as fronts for prostitution, said Sgt. Lacey Burt.
Five people were arrested during the raids, four of whom were released on bond. The fifth person was being sought for missing a court date.
Chief Assistant District Attorney Paula Kuty said that the requests for invoices should have been handled a different way. Her office worked with the police to get the warrant approved by a judge.
“Obviously this is an unusual occurrence to put it mildly,” Kuty said. “I think there is a certain amount of chagrin on the part of the deputy who did this. He should have told the police not to proceed in this fashion.”
Kuty did say that an “expansive” reading of the state evidence code would likely have covered the legality of the warrant. However, if the warrant fell short of legal scrutiny, Kuty said law enforcement officials weren’t the only parties with their fingerprints on the warrants.
“A judge did review this and a judge made the same error, if error it be,” Kuty said.
Palo Alto Daily News publisher Dave Price said his lawyers have advised him that the warrant was extremely broad in scope.
“Although police said they were after information about classified advertising, our attorneys have told us that this warrant would have allowed police to search any part of our newspaper building, including the newsroom,” Price said. “That’s going too far.”
San Mateo Daily News, a sister publication of the Palo Alto newspaper, also was served a warrant.
In addition, a similar search warrant was served by fax on June 28 at the offices of San Jose-based Metro Newspapers, publishers of three Bay Area weeklies. Editor and publisher Dan Pulcrano said he didn’t think the warrant was appropriate for obtaining ad invoices, but his office complied after consulting lawyers.
“This is judicial indiscretion,” Pulcrano said. “Both the Palo Alto Police Department and this judge should be ashamed.”
It was the Palo Alto Police Department whose search of a newspaper office more than 30 years ago resulted in a change in federal law that appears to restrict the use of search warrants against newspapers.
Palo Alto police officers executed a search warrant at the offices of the Stanford Daily in April 1971 to secure copies of photographs and other materials gathered for a story on a hospital protest that had turned violent.
The newspaper brought an action in federal court for injunctive and declaratory relief. Ruling in 1978 in the case of Zurcher v. Stanford Daily, the U.S. Supreme Court upheld the validity of the search.
But the ruling sparked Congress two years later to pass the Privacy Protection Act of 1980, which bars execution of search warrants on news organizations unless there is probable cause to believe that the person who has the materials in question committed a crime, or seizure is necessary to prevent death or injury.
The Los Angeles District Attorney’s Office executed a warrant at the offices of the Metropolitan News Company, publisher of the Metropolitan News-Enterprise, on May 2. Investigators were seeking invoices for legal advertisements placed by representatives of the proponents of recall against officials in the city of South Gate.
Copyright 2002, Metropolitan News Company