Unsealed Warrants Show SFPD Officer Told Judges He Was Targeting A Journalist, But Judges Approved Them Anyway

from the try-sucking-less-next-time,-your-honors dept

Three of the five warrants the San Francisco Police Department obtained to search journalist/stringer Bryan Carmody's home, office, and phones have been tossed by the judges who issued them.

The initial warrant, issued in February by Judge Rochelle East was the first be declared invalid. Judge East said the warrant application was misleading, omitting information that would have made it clear Carmody was a journalist and protected by the state's shield law. This warrant -- seeking access to phone call and text message records -- has been tossed. Since everything else in the Carmody investigation stems from this illegal search, the rest of the warrants are destined for the dustbin.

Judge East's findings have led to two more judges tossing warrants they issued. It also has led -- at least in Judge Victor Hwang's case -- to the judge possibly reading the warrant for the first time. This statement from David Snyder of the First Amendment Coalition says the warrant Judge Hwang tossed contained information about Carmody that made it clear the SFPD was targeting a journalist.

The search warrant application unsealed today shows, beyond any reasonable doubt, that the San Francisco Police Department knew Bryan Carmody is a journalist before they sought a search warrant for his office — and that they provided ample evidence of that fact to the San Francisco judge that authorized the unlawful search of his office.

The warrant [PDF] contains passages that indicate Carmody is in the journalism business. SFPD Sgt. Joseph Obidi dances around it a bit but ultimately delivers enough information that an attentive judge would have rejected this attempt to bypass the state's shield law.

The swearing officer notes that Carmody "is not currently employed at any of the news organizations" that published the leaked death report. But there are other passages in the affidavit's narrative that point towards Carmody's occupation.

Sgt. Watts asked Mr. Carmody if the [officers] that [leaked a copy of a death report to him] profited financially, he stated no. Sgt. Watts asked him if he profited financially, he responded by saying that he profits financially from every story he covers.

And, more explicitly:

It is my belief that Mr. Carmody still has the original copy of the police report in order to further his financial profits by selling it to other interested parties or news outlets at the time. I also believe Mr. Carmody kept the original copy the report as part of his portfolio/records of news stories he has participated in to keep track of his achievements. [...] I believe it is reasonable that someone who makes a career out of producing/selling hot news stories would keep a copy of that as part of his resume.

The affidavit also makes reference to the warrant obtained from another judge to search Carmody's residence. If so, Judge Gail Dekreon likely saw the same narrative and assertions, and yet still gave the SFPD permission to search a journalist's home. As Synder points out, this is unacceptable.

[T]hese statements represent a massive failure by both SFPD and the judiciary to recognize and safeguard the Constitutionally protected rights of Bryan Carmody and, by extension all journalists.

All the warrants will ultimately be tossed because every one of them is predicated on an invalid warrant and an illegal search of Carmody's phone records. But these should have been rejected by the judges who initially reviewed them, shutting down the SFPD's attempt to circumvent the state's shield law. The judicial branch's powers aren't just curative or restorative. They're also supposed to be preventative. Here they failed, leading to multiple rights violations that never should have been allowed to happen.

Filed Under: bryan carmody, journalism, rochelle east, sfpd


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  • identicon
    Anonymous Coward, 9 Aug 2019 @ 5:07pm

    So?

    It's not like judges are held responsible. No, that's they do to other people.

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

    • identicon
      Anonymous Coward, 10 Aug 2019 @ 4:31pm

      Re: So?

      FREEDOM OF THE PRESS Should have been one of the first things those judges were taught in college as it is guaranteed in the bill of rights 1st amendment. They should have to bear the biggest burdon to uphold the US Constitution and in not doing that, they should be held the most accountable. What are they doing to our country? Who has the duty to hold them accountable? If they are not at all accountable for upholding the US Constitution, they should not be deemed legitimate authorities by law.

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

  • icon
    fairuse (profile), 9 Aug 2019 @ 6:17pm

    Fast read error or assume?

    I read it. My fast read is not as well developed as a judge but I did not see obvious statement "He is a journalist", I saw "hack sells", "makes money off stolen information".

    All I can say is the cops want you, they will get you and fk'all who you are.

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

  • identicon
    Anonymous Coward, 10 Aug 2019 @ 3:10am

    Judge Victor Hwang obviously isn't the only judge that signs warrants without reading them. i have to wonder how many others do the same thing? some of them? all of them? whichever it is, surely it's a breach of their duties as judges, isn't it? it would be good to know that when a warrant is requested, the judge actually takes the time to carry out the part of his duty to ensure what is requested is valid and not, as in this case, a pack of bullshit. it definitely goes to show how much trust should be put in the police officers, ie, not a whole lot!!

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

    • identicon
      Anonymous Coward, 11 Aug 2019 @ 8:50am

      Re:

      Do not even talk to law enforcement. Absolutely give them the silent treatment. Unless they are directing you to answer them, don't even say Hello to them on the street.

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

      • identicon
        Anonymous Coward, 11 Aug 2019 @ 1:41pm

        Re: Re:

        Don't forget the supreme court decision that assumes people are morons and might not know their rights. Not talking to law enforcement is suspicious in and of itself. You have to explicitly invoke your right to remain silent if you don't want to talk with law enforcement.

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

  • icon
    mechtheist (profile), 10 Aug 2019 @ 3:52am

    Disturbing implications

    It's kinda scary to think there are judges who apparently rubber stamp the warrants that come across their desks. Given their position, you'd think they'd trust cops less than you're typical young black male. That would be an interesting survey, what percentage of judges would trust LEOs.

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

    • identicon
      Anonymous Coward, 10 Aug 2019 @ 6:03am

      Re: Disturbing implications

      Judges and cops are part of the same system.

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

      • identicon
        Anonymous Coward, 11 Aug 2019 @ 8:52am

        Re: Re: Disturbing implications

        If it were not for cops, judges and lawyers would have "ZERO" to do for their job.

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

      • identicon
        Anonymous Coward, 11 Aug 2019 @ 1:13pm

        Re: Disturbing

        more precisely: government LEO's, Judges, and Prosecutors consider themselves as team mates (although they are supposed to be legally independent of each other)

        Current formal U.S. justice system is structured as an assembly line for convictions.
        Presumption of Innocence is not an operative principle, but merely a pro forma "burden" that cops/judges/prosecutors must work around.

        Judges receiving warrant-applications are strongly disposed to approve them -- because they come from trusted "Team Mates".

        team-mates reflexively support each other-- Boat Rockers are not team players and suffer significant consequences from the team

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

    • icon
      That One Guy (profile), 10 Aug 2019 @ 6:26am

      Re: Disturbing implications

      In addition to what the AC above notes about how they likely consider themselves part of the same 'group' it's not like a judge would ever be on the negative end of an interaction with a cop and as such have any reason to develop that distrust, so while judges shouldn't trust police(at most they should have a completely neutral stance towards them) it's not too surprising that they would just accept anything they say at face value.

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

      • icon
        mechtheist (profile), 10 Aug 2019 @ 6:56am

        Re: Re: Disturbing implications

        They may be part of the same group, and so accept what they say, but then, they are also in position to observe how often what they said doesn't match the truth, as in court scenarios, not some interaction out on the street or wherever. DAs/US Attorneys should not be allowed to be judges, there's too much of a built in bias, but that's where most come from I think, it's true for the feds/US Attorneys.

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

        • identicon
          Anonymous Coward, 10 Aug 2019 @ 4:42pm

          Re: Re: Re: Disturbing implications

          The bias the AGs and prosecutors share is called prosecutorial bias. It is what they are all about. It is in the same bag as extreme prejudice. They don't pull the triggers, but they do push all the buttons.

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

      • identicon
        Anonymous Coward, 11 Aug 2019 @ 9:01am

        Re: Re: Disturbing implications

        Probably something like 83% of the time police investigations are going to yield money for their system. Out of the remaining percentage if they have to reverse a decision once in a while, who gives a fuck? They were going for the money. No one on their side is going to fault them. Maybe, maybe .000002% of the time, shit will hit their fan. But when you're wearing a seersucker robe, it washes right off.

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

  • identicon
    David, 10 Aug 2019 @ 6:28am

    I find this obvious.

    It is my belief that Mr. Carmody still has the original copy of the police report in order to further his financial profits by selling it to other interested parties or news outlets at the time. I also believe Mr. Carmody kept the original copy the report as part of his portfolio/records of news stories he has participated in to keep track of his achievements. [...] I believe it is reasonable that someone who makes a career out of producing/selling hot news stories would keep a copy of that as part of his resume.

    That very much states that Carmody meddles in the business of journalism under pretense of being a journalist like some self-appointed hack meddling in construction under pretense of being a properly licensed engineer. Basically he cannot work in this position before a government-approved board has put him through tests proving that he knows what he may or may not write if he wants to stay operative.

    This is the way journalism works, at least in mainland. Hongkong is still a bit different, but we were not talking about Hongkong but... uh... San Francisco?

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

    • identicon
      Anonymous Coward, 10 Aug 2019 @ 7:14am

      Re: I find this obvious.

      Maybe journalists have to be approved and "properly licensed" in authoritarian places like China, but that's not the way works in the US.

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

    • identicon
      Anonymous Coward, 10 Aug 2019 @ 7:19am

      Re: I find this obvious.

      I see the Chinese are starting up their own troll factories. The Russians may have a head start, but I'm sure they can catch up.

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

      • identicon
        David, 10 Aug 2019 @ 8:31am

        Re: Re: I find this obvious.

        Fascism is sold under a variety of labels in the U.S., but "made in China" is not one of them.

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

        • identicon
          Anonymous Coward, 11 Aug 2019 @ 5:29am

          Re: Re: Re: I find this obvious.

          Tell that to those massacred in Tienanmen Square. Oh, wait, that didn't happen, right?

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

    • icon
      Gary (profile), 10 Aug 2019 @ 9:29am

      Re: I find this obvious.

      Journalist is not a licensed or regulated profession like carpentry or medicine. The state does not give (nor can it revoke) your license as a journalist.

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

    • identicon
      Anonymous Coward, 10 Aug 2019 @ 4:47pm

      Re: I find this obvious.

      Self appointed hack meddling in construction? Like a contractor or carpenter? Those engineers rarely lift a hammer or saw. Its us hacks who build those buildings you moron.

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

  • icon
    Coyne Tibbets (profile), 10 Aug 2019 @ 9:59am

    Journalists work for mainstream publishers

    I think an assumption is being made here that is unwarranted. It looks to me like the judges are following the standard rule that journalists are employed by mainstream publishers. All others need not bother to apply.

    That is, when someone came in wanting a warrant, and said the guy was not employed by any journalistic organization, the judge basically stopped listening at that point and concluded he was not a journalist.

    Of course, that attitude is not according to the Constitution, but who pays attention to that nowadays?

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

  • icon
    Tanner Andrews (profile), 10 Aug 2019 @ 1:15pm

    Be Patient

    Some judges are more picky about signing warrants. Experienced officers know which judges are more likely to be problematic, and tend to channel their requests through more pliant judges.

    Worst case, a picky judge is the only one available at the moment. Come back tomorrow when you have better options.

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

    • identicon
      Anonymous Coward, 11 Aug 2019 @ 3:01am

      Re: Be Patient

      Worst case, a picky judge is the only one available at the moment. Come back tomorrow when you have better options.

      No, it's clearly exigent circumstances when no rubber stamp is available.

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

  • identicon
    k-h, 11 Aug 2019 @ 4:40pm

    Unequal freedom?

    Journalists have more freedom than everyone else?

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

    • identicon
      TFG, 12 Aug 2019 @ 8:33am

      Re: Unequal freedom?

      Disingenuous way of wording it.

      The doctrine of Freedom of the Press (journalists) is part and parcel of Freedom of Expression - the theory is that the Press is something that governments are likely to want to target to halt speech they don't like, and that special care should be taken to make sure these louder voices are not silenced. The very fact that they are louder means there is a bigger target by default.

      It's important to note that, as stated elsewhere in the thread, there is no licensing scheme for journalists. The definition of journalist, when it comes to first amendment protections, is extremely broad.

      So a better way to word it is that journalists have a bigger target on their back, and accordingly have greater protections because they are in more danger - and it's very, very easy to qualify as a journalist.

      You yourself could possibly qualify as a journalist just by starting up a news blog and reporting every so often on stuff happening in your local area.

      Now, if your gripe is that the government is allowed to go after people who aren't journalists for receiving leaked documents, I could agree with that sentiment.

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

      • identicon
        Anonymous Coward, 14 Aug 2019 @ 4:11pm

        Re: Re: Unequal freedom?

        Governments are doing all they can to shut down the GRAPEVINE. You know, "I heard it through the grapevine."?! Its been an old adage for a long time, "A slip of the lip can sink the ship." But don't forget, "Paranoia may destroy ya!"

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


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