Judge Unseals, Tosses Warrant Used By The San Francisco PD To Obtain A Journalist's Phone Records

from the have-fun-sleeping-in-the-fucked-up-bed-you-made,-SFPD dept

Back in May, the San Francisco Police Department raided the home of a local "stringer," hoping to discover who had leaked a sensitive police report to the journalists. This raid violated the state's journalist shield law and the First Amendment. Since it was obvious the source of leaked document was an SFPD officer or employee, the raid was also incredibly stupid… unless the real point of the show of force was to discourage journalists from publishing leaked documents.

It took a few days before the SFPD police chief was willing to condemn the raid. According to the chief, the still-unseen affidavit glossed over the target's occupation -- an omission that likely would have seen the warrant application tossed if it had been included.

Speculation about the contents of at least one of the warrants is about to come to an end. The judge overseeing stringer Bryan Carmody's challenge of the warrant has ordered the affidavit to be unsealed.

“The search warrant will be unsealed with the exception of one portion,” San Francisco Superior Court Judge Rochelle East said in court.

One paragraph of the 11-page warrant must be blacked out to protect the identity of a confidential police informant. The unsealed file will be released by July 23 at 10 a.m. to attorneys for three press advocacy groups and a freelance journalist whose home was raided by police.

The same judge has also declared the warrant invalid. Matthew Keys has more details at the California Globe:

A judge in San Francisco tossed a search warrant she issued against a freelance journalist in May, saying police did not disclose to her that the target of the warrant worked in the news media industry.

The ruling, handed down in San Francisco County Superior Court, means materials gathered from the home and office of journalist Bryan C. Carmody cannot be used as evidence against him or anyone else as police continue their investigation into the leak of documents and photographs related to the death of former San Francisco Public Defender Jeff Adachi.

Unfortunately, this only takes care of one of the warrants targeting Carmody. This one sought phone records linked to the numerous cellphones Carmody owns. The other warrants -- targeting Carmody's home and office -- are still being challenged.

The good news is those warrants are likely to meet the same fate. It's highly unlikely the affidavits attached to those search warrants included the fact that the target was a journalist. Two more hearings are set to discuss those warrants, but it seems pretty clear from the ruling here that SFPD officers lied to a judge (or judges) to get around the state's shield law.

If those hearings go the same way, the SFPD will lose all the evidence it collected during its bullshit raid. It won't have anything to use against Carmody, but it seems unlikely a prosecution would even be pursued at this point. But a stack of bad warrants also invalidates anything it might have wanted to use against the employee who leaked the document. The SFPD probably should have kept its internal investigation internal, rather than bring it to the doorstep of a journalist's house.

Filed Under: 1st amendment, 4th amendment, bryan carmody, investigation, journalism, phone records, san francisco, sfpd, warrant


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  • icon
    Stephen T. Stone (profile), 23 Jul 2019 @ 3:51pm

    Cops being held accountable for their bullshit? In my United States of America?

    Will wonders never cease.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Jul 2019 @ 4:16pm

      Re:

      article does not actually say they are being held accountable. That would mean they were actually punished for their bad behavior (note: telling someone they can not inflict harm on others is not really punishing them).

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Jul 2019 @ 8:16pm

      Re:

      In other news, the Satanic Zamboni has been brought out of mothballs to prepare a rink for an exhibition hockey game (hey, it's still hell, right?).

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Jul 2019 @ 3:56pm

    There IS a however, here...

    The police will almost certainly retain copies of all the information gleaned from the (now officially callable "stolen") information from Brian Carmody's property and may well use it (with official cover-up stories) to harass both Carmody and others in ways that may not be readily linkable to the police's theft.

    As always, once information is out, it's OUT.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 23 Jul 2019 @ 4:26pm

    Now, about that followup...

    Having the warrants and subsequent legal action tossed is a great start, but unless there's some actual punishment handed out to those involved I'd still count this as a win for the police, as the message of 'publish something we don't like and we will make you suffer for it' will stand.

    Preventing more harassment against a specific journalist is great and all, but that doesn't change what they've already done, nor provide do anything to keep them from doing it again. Don't slap wrists, bring down the hammer, and give them a very real and visible reason not to act like thugs again in the future.

    reply to this | link to this | view in chronology ]

  • identicon
    Manok, 23 Jul 2019 @ 10:47pm

    This all doesn't matter, now does it? The evidence cannot be USED against the leaker in court, but still the leaker can be discovered with the evidence. After that, some work-place harassment, downgrade of security clearance, skipped promotions, or what not, would take any future sting out of this mole.

    reply to this | link to this | view in chronology ]

    • identicon
      jilocasin, 24 Jul 2019 @ 5:33am

      Re: Not being able to use evidence in court may be the point

      Perhaps this is the whole point of the exercise. The leaker was most likely a police officer. The police force wanted the information leaked. Since they had to investigate (too much heat from outside the police force) what better way than to make sure that none of the evidence would ever be admissible?

      If you get to harass a journalist in the process, all the better....

      Just saying.

      reply to this | link to this | view in chronology ]

  • identicon
    Annonymouse, 24 Jul 2019 @ 4:16am

    So when will all involved be held criminally responsible? Yes that includes the chief and their lawyers.

    reply to this | link to this | view in chronology ]

  • icon
    btr1701 (profile), 24 Jul 2019 @ 1:04pm

    means materials gathered from the home and office of journalist Bryan C. Carmody cannot be used as evidence against him or anyone else

    That's not accurate. Tossing the warrant means the state won't be able to use the fruits of the illegal search against Carmody, but they can still be used against third parties. The illegal search of Carmody's property only violated Carmody's rights, no one else's.

    It's a classic law school Crim Law exam question: Cops illegally search Bob's house without a warrant. They find no evidence against Bob, but they do find a gun with Bill's fingerprints on it that was used in a murder. Is the gun evidence admissible in Bill's murder trial?

    The answer is yes. Bill can't challenge the illegal search of Bob's house as a violation of his own rights. Only Bob's rights were violated. Bill has no reasonable expectation of privacy in Bob's house. The evidence is admissible against Bill.

    reply to this | link to this | view in chronology ]

    • icon
      aldestrawk (profile), 24 Jul 2019 @ 3:26pm

      Re:

      Can you answer this? The statement of probable cause identifies Carmody as the intermediary in supplying the police report from an unknown SFPD police officer to television news outlets. It does not mention that Carmody, himself, was suspected of any crimes. If Carmody was not at all a journalist would this be a valid search warrant to either access his phone metadata, voicemail, email, and texts or to search his home? The search warrant and affidavit give the impression, as written, that a judge should see no problem with this.

      reply to this | link to this | view in chronology ]

      • icon
        btr1701 (profile), 25 Jul 2019 @ 11:19am

        Re: Re:

        If Carmody was not at all a journalist would this be a valid search warrant

        Depends on if leaking a police report is a crime or not. I have no idea if it is.

        But assuming that it is a crime and the cops had probable cause to believe there is evidence of that crime on a person's electronic gear, and we're assuming that the person isn't a reporter, then yes, a warrant to seize and search those devices for that evidence would be valid.

        But if leaking a report is not an actual crime-- if it's just a violation of department policy, for example-- then there's nothing on which to base a warrant to begin with, probable cause or not, because warrants to invade and seize private property are generally only valid for the pursuit of evidence of criminal activity.

        reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 24 Jul 2019 @ 5:05pm

      Re:

      It's a classic law school Crim Law exam question: Cops illegally search Bob's house without a warrant. They find no evidence against Bob, but they do find a gun with Bill's fingerprints on it that was used in a murder. Is the gun evidence admissible in Bill's murder trial?

      The answer is yes. Bill can't challenge the illegal search of Bob's house as a violation of his own rights. Only Bob's rights were violated. Bill has no reasonable expectation of privacy in Bob's house. The evidence is admissible against Bill.

      That is some grade-A bullshit there. Not only is evidence from an illegal search admissible simply because it's being used against someone else, but the person it's being used against can't challenge it's admissibility?

      Beyond allowing police to benefit from an illegal search, that would seem to open up a truck sized loophole, in that if police suspect that there's incriminating evidence at a location not owned by the suspect but don't have enough to get a warrant all they'd need to do is find a pretext to search the place, claim the search was aimed at the owner rather than the suspect, and keep any evidence against the real suspect they find.

      reply to this | link to this | view in chronology ]

      • icon
        btr1701 (profile), 25 Jul 2019 @ 11:11am

        Re: Re:

        That is some grade-A bullshit there.

        Not sure if you're disagreeing with me or the state of the law, but it's been well-settled law for decades that you have to have standing to challenge a search/seizure, i.e., it has to be your home, car, briefcase, etc, that was searched or seized. You can't claim the search and seizure of someone else's property to be a violation of your 4th Amendment rights:

        A defendant's 4th Amendment rights are violated only when the challenged conduct invaded his legitimate expectation of privacy rather than that of a third party. Cf. Rakas v. Illinois, 439 U.S. 128; United States v. Miller, 425 U.S. 435 . Pp. 731-733; United States v. Payner, 447 U.S. 727 (1980).

        Beyond allowing police to benefit from an illegal search, that would seem to open up a truck sized loophole

        The person who was illegally searched (Bob in my example above) would still have grounds for any number of civil actions against the police department and grounds for a 1983 suit against the individual officers for violation of civil rights under color of authority, so it's not like the cops would get a free pass for illegally ransacking someone's house looking for evidence against his friend. It's just that the evidence they find is not subject to the exclusionary rule if the person challenging it has no standing to do so.

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 25 Jul 2019 @ 8:17pm

          Re: Re: Re:

          Not sure if you're disagreeing with me or the state of the law,

          The latter. My objection is not that I don't believe you, it's that I do. Police should not be allowed to benefit from an illegal action(search or otherwise), as allowing that provides entirely the wrong incentives to the very people who are supposed to uphold the law and be held to higher standards.

          reply to this | link to this | view in chronology ]

      • icon
        someoneinnorthms (profile), 25 Jul 2019 @ 4:33pm

        Re: Re:

        And you have just summarized the standard technique law enforcement uses to investigate crimes.

        For the record, the legal concept described above is called "standing." I don't have standing to challenge any evidence found from an illegal search of your home if I am put to trial for a crime in the US. 1

        reply to this | link to this | view in chronology ]

  • icon
    aldestrawk (profile), 24 Jul 2019 @ 5:36pm

    The SFPD learned from television news outlets that Carmody was a source of the police incident report about Adachi's death. At that point, the investigating officer, Sgt. Joseph Obidi, knew he was a stringer. Obidi said he did an Internet search on Carmody's name and came across his LinkedIn profile. The initial search warrant for Carmody's phone information noted that in that profile Carmody described himself as a "Freelance Videographer/ Communications Manager" at "USO Bay Area" (the company where Carmody was the founder, owner, and sole employee). One would assume that the investigating officer would have looked for records concerning Carmody within SFPD's own databases. That officer would have found that Carmody had a press pass issued by the SFPD. A lot of SFPD officers would have known Carmody by name considering he had been working as a stringer for 30 years while based in SF. Let's give Sgt. Obidi, who has worked for the SFPD for 11 years, the benefit of the doubt and assume he didn't know of Carmody. A responsible officer would have mentioned the fact that Carmody was a stringer, that he possessed an SFPD press pass, and let the judge decide if Carmody qualified as a journalist. However, neither fact was mentioned. Instead, the statement of probable cause notes that:

    "Further Internet research revealed that Bryan Carmody is not currently employed by any of the news organizations that obtained the death investigation report."

    It seems that the statement of probable cause was written in a way to give the judge the impression that Carmody may have been a journalist at one time but was not one currently. There is no actual lie within that statement but it does seem to be intentionally misleading.

    The statement of probable cause states that the police were investigating theft/fraud and obstruction of justice. Later on, it explicitly states the unknown SFPD police officer was suspected of those crimes. It was never explicitly stated that Carmody was guilty of any crime. The statement did say that the search of Carmody's phone records would:

    "...assist me in determining the identity of the person(s) who stole the police report and may have interfered with the open death investigation by providing it to Bryan Carmody."

    On the day of the raid, an SFPD statement was more ambiguous about who committed the crimes being investigated.

    “...actions are one step in the process of investigating a potential case of obstruction of justice along with the illegal distribution of a confidential police report.”
    David Stevenson, SFPD spokesman May 10, 2019.

    On May 21st, SFPD Chief William Scott said this:

    “We do believe that Mr. Carmody committed a crime and that’s what we’ve been investigating, Scott said The reason for the raid and seizure “is that we believe that he was complicit in committing crimes,” he said.

    A police press release included this:

    "Under investigation are theft of the incident report and “unlawful dissemination” of confidential information obtained through the California Law Enforcement Telecommunication System..."

    It seems that the SFPD is now trying to say, after the fact, that they were investigating Carmody, himself, for crimes to justify the search warrant being applied to a journalist.

    However, Carmody cannot be guilty of unlawful dissemination for receiving the police report from an officer and then selling it as part of a news package to news outlets.
    Could Carmody be prosecuted for possession and sale of stolen information? Only if a copy of the incident report, or more accurately, a photocopy of a printed station copy of the report, can be considered stolen property.

    reply to this | link to this | view in chronology ]


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