(Gloucestercitynews.net)(July 24, 2019)--Police failed to tell the judge who issued a search warrant for Bryan Carmody’s phone that Carmody is a journalist, records unsealed today show—a key omission that helps explain how the San Francisco Police Department was able to obtain warrants for Carmody’s phone, home and office in clear violation of California and federal law.
The records, unsealed as a result of a motion filed by the First Amendment Coalition and two press-advocacy groups, show that when police applied for a search warrant for Carmody’s phone, they told Judge Rochelle East that Carmody’s LinkedIn page “listed him as a ‘Freelance Videographer/Communications Manager.’” However, Carmody is well-known in the police department and beyond for covering police activities on a daily basis. He has a valid press pass issued by SFPD.
Both California and federal law expressly bar the use of search warrants to obtain unpublished information from journalists. Despite this, SFPD was able to obtain at least four warrants to search for and collect Carmody’s computers, phones and other materials
“The police department knew that Carmody has a press pass, and they knew he was a journalist—but failed to tell Judge East that fact,” said FAC Executive Director David Snyder. “The more we learn about the police department’s extreme overreach here, the more the city’s violation of California and federal law becomes obvious. There must be accountability, at the highest levels of San Francisco government, for this trampling on journalists’ rights.
Judge East on July 18 ordered police to publicly release the search warrant application, which police used to collect call records and other information from Carmody’s phone.
The order was the result of a motion filed by FAC along with the Society of Professional Journalists (NorCal chapter) and the Reporters Committee for Freedom of the Press.
Separately on July 18, 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.
The warrant for Carmody’s phone preceded two warrants that grabbed national attention in May, after police raided Carmody’s home and office, carting away voluminous materials—all material protected by California’s journalist shield law.
FAC, SPJ and RCFP have 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.
FAC’s motion to unseal has met with extended bureaucratic delay. FAC’s attorney attended six hearings before five different judges, all of whom deferred ruling until Judge East finally ruled on the merits of the motion to unseal.
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, unsealed search warrant application here.