A San Francisco judge yesterday ordered police to publicly release sealed documents relating to a search warrant executed on freelance journalist Bryan Carmody, whose home and office were raided by SFPD in an unlawful show of force that shocked journalists and free-press advocates across the country.
The order, the result of a motion filed by the First Amendment Coalition along with two press-advocacy groups, requires the San Francisco Police Department to release, by Tuesday, their application for a search warrant used to secretly collect information from Carmody’s phone.
The search warrant application will show what if anything police told Judge Rochelle East about Carmody’s status as a journalist before East signed the search warrant. What East knew is a critical fact, because both California and federal law prohibit the use of search warrants to seize journalists’ notes and unpublished materials.
Judge East said in court yesterday that police did not tell her Carmody is a journalist before she signed the warrant to search Carmody’s phone records — a strong indication that police either concealed that fact from the judge or, much less likely, didn’t know of Carmody’s status.
FAC, along with the Society of Professional Journalists (NorCal chapter) and Reporters Committee for Freedom of the Press, has been fighting in court since May 17 to bring to public light the search warrant applications in Carmody’s case. Duffy Carolan of the law firm Jassy Vick Carolan represents FAC and its co-movants in this matter.
“The warrant application should shed more light on how the process went off the rails such that San Francisco police executed at least five illegal warrants on a working journalist — an incredible breach not only of state and federal law, but of the public’s trust in both San Francisco police and the city’s judiciary,” said FAC Executive Director David Snyder. “We are grateful that this key piece of information will finally be made public.”
Separately yesterday, Judge East quashed the search warrant executed on Carmody’s phone. Tom Burke of the law firm Davis Wright Tremaine represents Carmody in that matter.
FAC’s motion to unseal was met with extended bureaucratic delay. FAC’s attorney attended five hearings before four different judges, all of whom deferred ruling until Judge East finally ruled on the merits of the motion to unseal.
SFPD raided Carmody’s home and office on May 10, carting away the freelance journalist’s digital devices, files and other materials and prompting outrage across the nation. It later emerged that police had also obtained warrants for Carmody’s cell phone.
FAC’s motion to unseal argued that California law requires the warrant applications to be public — and that they should have been public immediately after police informed the court they had executed the warrant.
Police have said that the raid was part of an investigation into the leak of a police report detailing the investigation into the death of San Francisco Public Defender Jeff Adachi.
But California law makes clear that authorities may not use a search warrant to seize material protected by the state’s journalist shield law, which generally prevents the state from obtaining journalists’ unpublished materials, including confidential sources.
The search warrants in Carmody’s case should have been public shortly after police raided Carmody’s apartment and home. California law generally requires search warrant applications to be made public immediately after police or prosecutors file a search warrant “return”— in essence, a document showing that the warrant was executed. Although that document has apparently been filed, the search warrant application in Carmody’s case remains under seal.
California’s journalist shield law (Section 1070 of the Evidence Code and Article 1, section 2(b) of the California Constitution) makes clear that the state is not entitled to obtain “any unpublished information” or “the source of any information,” and the state’s law regarding search warrants specifies that “no warrant shall issue for any item or items described in the shield law.”
Duffy Carolan of the law firm Jassy Vick Carolan represents FAC, SPJ NorCal and RCFP.
You can read the full motion to unseal here.
For further information, contact:
Glen Smith
Legal Fellow
First Amendment Coalition
415-460-5060
gsmith@firstamendmentcoalition.org
Duffy Carolan
Jassy Vick Carolan
415-539-3399
dcarolan@jassyvick.com