The First Amendment Coalition (FAC) today filed a motion to unseal the San Francisco Police Department’s applications for two search warrants in the case of journalist Bryan Carmody, whose home and office police raided last week, sparking national outrage from press advocates, civil libertarians and many others.
Why two judges authorized those warrants—which appear to be illegal under both California and federal law—remains a mystery since the police department’s applications for the warrants are under seal in San Francisco Superior Court. The now-secret applications should shed light on whether police informed the judge that Carmody is a journalist, which in turn would make clear whether the judges simply ignored that key fact, or whether they never knew it.
FAC’s motion, joined by Reporters Committee for Freedom of the Press and the Northern California chapter of the Society of Professional Journalists, argues 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.
“Our motion to unseal aims to answer one of the most disturbing mysteries of this case—how two judges separately issued warrants that allowed police to raid the home of a working journalist in order to reveal that journalist’s source,” said FAC Executive Director David Snyder. “This obvious and unlawful intrusion on press rights demands accountability, and accountability starts with knowing the facts.”
On March 10, nearly a dozen armed officers raided Carmody’s home and office, seizing dozens electronic devices and other materials. Using a sledgehammer and handcuffing Carmody, a freelance videographer, for hours, police carted away more than a dozen of Carmody’s electronic devices.
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material protected by the state’s journalist shield law, which generally prevents the state from obtaining journalists’ unpublished materials, including confidential sources.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 already be public. 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.
In order to obtain a search warrant to seize property, as police did in Carmody’s case, police must show probable cause to believe that stolen or embezzled property will be found at the location searched. In making this case to a judge, police should have alerted the judge to the fact that Carmody is a working journalist— and, once that information was known, the search warrant should not have issued.
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 and its co-movants in this matter.
You can read the full motion to unseal here.
For further information, contact:
David Snyder
Executive Director
First Amendment Coalition
415-460-5060
dsnyder@firstamendmentcoalition.org
Duffy Carolan
Jassy Vick Carolan
415-539-3399
dcarolan@jassyvick.com