The United States Supreme Court has made it abundantly clear: Law enforcement officers have no business allowing the news media to enter private residences during the execution of arrest or search warrants. Earlier this year, in a pair of civil rights cases, the Court unanimously held that the officers had violated residents’ Fourth Amendment rights in so doing. Let's take a look.
In Wilson v. Layne, 119 S.Ct. 1692 (1999), the Attorney General of the United States had approved "Operation Gunsmoke," a special national apprehension program in which United States Marshals worked with state and local police departments to apprehend dangerous criminals. The operation was to concentrate on "armed individuals wanted on federal and/or state and local warrants for serious drug and other violent felonies." The program, which began operating in 1992, was extremely effective and had resulted in more than 3,000 arrests.
 Dominic Wilson, son of petitioners Charles and Geraldine Wilson, was one of the targets of the operation. Wilson had violated his probation on previous felony charges for robbery, theft, and assault with intent to rob, and police computers listed Wilson as likely to be armed and likely to assault police and resist arrest. His last known address was 909 North Stone Street Avenue, Rockville, Maryland. What the police did not know was that this house was the home of the petitioners, Charles and Geraldine Wilson.
The Circuit Court for Montgomery County issued three arrest warrants for Dominic Wilson, one for each probation violation. The warrants were addressed to "any duly authorized peace officer," and commanded the officer to arrest Wilson and bring him immediately before the Circuit Court. The warrants made no mention either of media presence or media assistance.
In the early morning hours of April 16, 1992, a team of Deputy United States Marshals and Montgomery County Police officers gathered to execute the warrants. Invited by the Marshals to ride along on this mission were reporters and photographers from the Washington Post.
They entered the residence at 909 North Stone Street Avenue where the petitioners were still asleep. The noise awoke Charles Wilson who ran into the living room-clad in only his briefs-to see what was going on. Finding five men in street clothes with guns in hand, Charles Wilson angrily demanded that the men state their business. Believing him to be Dominic Wilson, the officers subdued Charles on the floor. By that time Geraldine Wilson, dressed only in a nightgown, arrived to see her husband being restrained by the armed officers.
The police conducted a protective sweep before finding out that Dominic Wilson was not in the house. However, the photographer from the Post had taken pictures, and a reporter was present in the living room observing the confrontation between the police and the Wilsons. The Post did not publish the photographs of the incident.
Charles and Geraldine Wilson proceeded to sue law enforcement officials in their personal capacity for money damages, alleging that the officer's actions in bringing the media along to observe and record the attempted execution of the arrest warrant violated their Fourth Amendment rights. The District Court denied the respondents’ motion for summary judgment on the basis of qualified immunity. The respondents then filed an appeal to the Court of Appeals, where a divided panel reversed and held that the officers were entitled to immunity. The matter was reheard twice en banc, and the Court of Appeals again upheld the immunity defense, but declined to decide whether the police action had violated the petitioners’ Fourth Amendment rights. Instead, the court concluded that since no court prior to 1992 had held that media presence during a police entry into a residence violated the Fourth Amendment, the right alleged to have been violated was not "clearly established," and therefore qualified immunity was proper.
Recognizing a split among the Circuits on this very issue, the Court granted certiorari in this case and in Hanlon v. Berger, which raised the same issue.
In Hanlon v. Berger, 119 S.Ct. 1706 (1999), Paul and Erma Berger brought an action for damages against special agents of the United States Fish and Wildlife Service as well as an assistant United States attorney, alleging that their Fourth Amendment rights had been violated by agents of the government. The Bergers lived on a 75,000 acre ranch just outside Jordan, Montana. The agents alleged that the Bergers were taking wildlife in violation of Federal law. The Assistant United States Attorney in charge of the investigation entered into a contract with media correspondent Jack Hamann which permitted CNN to send reporters and a camera crew along with the officers executing the warrant.
Sometime later, the Government agents, along with a crew of photographers and reporters from CNN, proceeded to a destination close to the ranch. They executed the warrant, and, over the course of several hours, searched the ranch and all the outbuildings. The CNN media crew accompanied the officers and recorded their conduct.
The plaintiffs filed civil suits against the media and the agents. The District Court found nothing wrong in the cozy deal between the cops and cameras, thus the Bergers appealed. The Ninth Circuit Court of Appeals reversed, holding the defendants liable, and the officers appealed to the United States Supreme Court.
THE COURT'S ANALYSIS OF THE CASES
When a court is asked to evaluate a claim of qualified immunity, it must first determine whether the plaintiff has alleged a deprivation of an actual constitutional right at all, and if so, proceed to decide whether that right was clearly established at the time of the alleged violation. Thus, the Court began its analysis by looking to the law in 1992--the year when these incidents occurred.
In its attempt to be clear and thorough, the Court began by citing law of the English courts from as far back as 1604. It was at that time that the court made its now famous observation that "the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose." More than a century later, William Blackstone, the well-known British legal scholar, was to pen a commentary on this very theme.
The Fourth Amendment embodies this centuries-old principle of respect for the privacy of an individual's home: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
This overriding respect for the sanctity of the home has been central to Supreme Court decisions. This means that absent a warrant or exigent circumstances, police cannot enter a home and make an arrest. However, the law recognizes that an arrest warrant based upon probable cause carries with it the limited authority to enter a dwelling in which a suspect lives when there is reason to believe that the suspect lives within.
In both Wilson and Berger the officers had such a warrant. In Wilson, they were entitled to enter the home in order to execute the arrest warrant for Dominic Wilson. However, added the Court, it does not follow that the officers were permitted to bring the media along. In previous cases, the Court has held that "if the scope of a search exceeds that permitted by the terms of a validly issued warrant or the character of the relevant exception to the warrant requirement, the subsequent seizure is unconstitutional without more." Thus, the purposes justifying a police search strictly limit the scope of the search.
Clearly, the presence of the media inside the home was not related to the objectives of the authorized intrusion in this case. The reporters did not engage in executing the warrant, nor did they assist the police in their task. The reason for entry into the Wilson home was to apprehend Dominic Wilson. The reason for entry into the Berger ranch was to search for animals. The presence of third parties--the media in these cases--did not directly aid in the execution of the warrants. If the police had entered a residence to search for stolen property, the presence of a third parties for the purpose of identifying the stolen property would clearly be approved by the courts. Such was not the case here.
ALL THE GOVERNMENT’S ARGUMENTS REJECTED
The Government argued that the presence of the reporters from the Washington Post in executing Dominic Wilson's arrest warrant served numerous law enforcement purposes, for example, exercising their reasonable discretion about when it would further law enforcement objectives to have the media along. This very general statement, said the Court, completely ignores the importance of residential privacy that is at the very core of the Fourth Amendment, and cannot be said to trump it.
Further, the Government argued that the presence of third parties served the law enforcement purpose of publicizing the government’s efforts to combat crime and facilitate accurate reporting of law enforcement activities. While the Court acknowledged that the First Amendment freedom of speech is very important, it went on to say that the Fourth Amendment also protects a very important right, and, in these cases, it is in that light that the media ride-alongs must be judged. Good public relations for police officers, standing alone, is not sufficient reason to justify the ride-along intrusion into a private home.
The Government also argued that the presence of the media might serve to minimize police abuses and protect suspects. No, no, boys and girls! If you want to have a record, bring the video camera and preserve it on tape. The Washington Post reporters were not present in the Wilson home for the purpose of protecting the police or the Wilson family. The Post reporters were there for a story, as evidenced by the fact that the Post kept the photographs, not the police.
Thus, concluded the Court, all of the reasons set forth by law enforcement officers for the ride-alongs fell short of justifying the media invading private homes. The Court therefore held that the Fourth Amendment is violated when police bring members of the media or other third parties to a home during the execution of a warrant if the presence of those third parties is not to aid in the execution of the warrant.
The second prong of the test applied by the Court was whether or not the right violated was clearly established at the time of the incident. That takes us back in time to 1992.
NOT "CLEARLY ESTABLISHED" LAW IN 1992
Government officials are generally granted qualified immunity and are shielded from civil liability for damages when they are performing discretionary functions so long as they are not violating clearly established statutory or constitutional rights of which a reasonable person would have known. Did the police, at the time of the intrusions, know that they should not have brought the media along? For the answer to this question, the Court defined "clearly established" to mean that "the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." We look to the pre-existing law.
The Fourth Amendment protects the rights of homeowners from entry without a warrant, however, in these cases the officers had warrants. But did the invitation to the media exceed the scope of the search authorized by the warrant? The Court found that this was not obvious from the general principles of the Fourth Amendment, since accurate and full media coverage could serve a number of important public purposes.
Second, in 1992 there were no judicial opinions holding that this practice became unlawful when the officers entered a home. It is interesting to note that while the parties in both cases drew the Court’s attention to three lower level opinions, the Court still held to the fact that there was no "clearly established" law on the issue in April, 1992.
Third, the Court pointed to a booklet published by the United States Marshals which recommends that "fugitive apprehension cases . . . normally offer the best possibilities for ride-alongs." The Montgomery County Sheriff's Department also had a ride-along program that did not expressly prohibit the media from entering private dwellings.
Given such an undeveloped state of the law, the Court concluded that the officers in these cases could not have been expected to predict the course of constitutional law. Further, since 1992, a split among the Federal Circuits developed on the question of whether media ride-alongs that enter private homes can subject the police to money damage lawsuits. Therefore, said the Court, if judges disagreed on this constitutional question, how can we subject the police to money damages for choosing the wrong side of the controversy? The decision of the Court of Appeals was thus affirmed.
CONCURRING IN PART, DISSENTING IN PART
Justice Stevens agreed with the outcome of the majority decision, but disagreed that the homeowners right against this kind of trespass was not clearly established in April, 1992. He believed that constitutional rules, a federal statute, common-law decisions and testimony of the law enforcement officers supported his position.
Police action in executing warrants, said Justice Stevens, must be strictly limited to the objectives of the intrusion. That principle came from our English forefathers' respect for the sanctity of the home and the American colonists’ hatred of the general warrant. Thus, it should have been obvious to the officers that their invitations to the media exceeded the scope of the authorized warrants. The majority does not cite a single case that supports the proposition that using official power to enable the media to enter a private home for purposes unrelated to the execution of a warrant could be regarded as a reasonable invasion of either property or privacy.
The most disturbing aspect of the Court's decision on the issue of qualified immunity was its reliance on the booklet published by the United States Marshals Service. To Justice Sevens, the author of the pamphlet was more concerned with developing the proper public image of the Service to impress the Congress. The author was not a lawyer concerned with constitutional rights, but rather a public relations person. Justice Stevens notes that the same pamphlet suggests handing out T-Shirts and hats to "grease the skids," yet it contains no discussion of the conditions which must be satisfied before a news person may be authorized to enter a private home during the execution of a warrant. Obviously, Justice Sevens would not have offered law enforcement qualified immunity.
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