How Cops Use Search Warrants To Go After Journalists in California

For all the media hatred across the country, it’s still exceedingly rare for cops to storm into a journalist’s home looking for information.

But San Francisco police officers provided a dystopian exception to the rule last Friday when they barged through Bryan Carmody’s front door and confiscated his electronics in the hope of sniffing out an anonymous source.

The episode added another wrinkle of scandal around the mysterious death of a San Francisco public defender in February. And it provided yet more evidence that the anti-press invective common in national politics has trickled down to the local level — this time in a progressive bastion.

What’s more, authorities used a highly intrusive tactic that’s also extremely unusual. At least 35 American journalists have been served with subpoenas or legal orders for information since 2017, according to the U.S. Press Freedom Tracker, a site that tabulates publicly known threats toward journalists. Until last week, however, it counted just one search warrant during that span.

“If you want to get materials from a journalist in California, you have to use a subpoena,” said David Greene, a First Amendment lawyer and civil liberties director at the Electronic Frontier Foundation. “A search warrant is a very one-sided process that can’t be legally challenged before it’s carried out. If you believe the search warrant was improper, all the relief comes after the fact — after your house has been searched, after your files have been turned over and your notes have been taken away.”

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And yet, California authorities have a history of seeking search warrants for journalists’ information over the past decade. It remains unclear why two judges OK’d them in Carmody’s case, but police are defending the legality of the move. What’s certain is that Carmody has been put temporarily out of work and thrust into the national spotlight.

“They took all this stuff and left me without a way to communicate, get online, do anything,” he told VICE News. “Our lives were definitely turned upside down.”

Carmody is a longtime freelance videographer. He works overnight, starting around 10 p.m. and running down tips and police scanner chatter while other news crews are asleep. It’s not the most glamorous form of journalism, he said, but it’s also not the “ridiculous Hollywood bullshit” that a sociopathic Jake Gyllenhaal caricatured in the 2014 film “Nightcrawler.”

While Carmody tends to cover spot news, a source brought him a major scoop in February: a police report offering salacious details about the death of San Francisco Public Defender Jeff Adachi. Authorities responding to a 911 call found drugs, alcohol, and a woman who wasn’t Adachi’s wife in the ground-floor apartment he was in before being taken to the hospital, where he was pronounced dead.

Carmody’s resulting story, sold to three TV stations, roiled San Francisco’s political establishment. His source was anonymous; some local journalists immediately speculated that cops had leaked information about a public defender with whom they often clashed. Carmody said two police officers came to his home on April 11 to ask him to reveal his source. And a week later, the San Francisco Board of Supervisors lambasted the police and an unnamed “stringer” for the publication of confidential information.

“The report was released prematurely at best and, far more concerning, was sold to the media,” said Hadi Razzaq, a deputy in the public defender’s office.

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With that controversy in mind, Carmody said he wasn’t surprised when he awoke Friday to the sound of San Francisco police officers hammering on his door with a sledgehammer. They promptly cuffed him after he let them inside, Carmody said, searching his home as two FBI agents questioned him about potential obstruction of justice around the investigation of Adachi’s death. Carmody didn’t say much.

Copies of the search warrants for Carmody’s home and office obtained by VICE News catalogue a long list of property the police carted away: cameras, cellphones, computers, tablets, hard drives. One entry in the list mentions two “reporter’s notebooks.” The property totaled tens of thousands of dollars in value, Carmody said, but what police didn’t get was information about his source.

“If you get your hands on a super secret document, you’re not going to write that down,” said Carmody, who was detained for more than six hours.

The episode has spurred national outcry from press freedom advocates, who’ve cited a web of federal and state laws that would seem to prohibit that kind of raid. The Privacy Protection Act of 1980 prevents authorities from searching or seizing journalists’ “work product materials” in the course of an investigation. California’s shield law allows them to protect their confidential sources’ identities. And a separate state statute bars search warrants against journalists.

Despite those protections, at least four other California journalists have faced search warrants over the past decade.

San Francisco cops siezed photos and other materials from the home of a photojournalism student who witnessed a subject’s murder in 2009. UC-Berkeley police obtained a search warrant to nab photos from an independent photojournalist capturing an on-campus protest the same year. And a cybercrime task force known as the California Rapid Enforcement Allied Computer Team raided a Gizmodo reporter’s home in search of information about a stolen iPhone prototype in 2010. Last year, the Los Angeles police seized the phone of a documentary filmmaker who had interviewed Death Row Records co-founder Marion "Suge" Knight as he prepared to defend himself in a murder trial.

Judges later overturned at least three of those search warrants. The decision on whether to quash the 2018 case is still under seal. Those legal battles can stretch on for months, eating up huge amounts of time and money, while police hold onto seized materials.

It’s unclear why authorities took this route with Carmody.

“Those two judges might not have known that they were issuing search warrants to a journalist,” said Thomas Burke, Carmody’s attorney. “What you do, clearly, is issue subpoenas. You start with a subpoena; you do not start with a search warrant.”

Local media outlets have reported that police officials did share Carmody’s work background with Judges Victor Hwang and Gail Dekreon. But the affidavits written to request the search warrants remain sealed. And San Francisco Superior Court spokesperson Megan Filly declined to comment on a pending case.

As San Francisco public officials dance awkwardly around Carmody’s identification as a journalist, police have continued their investigation into who leaked him the police report.

San Francisco Police Chief William Scott defended the raid at a Police Commission hearing Wednesday night.

“I'm confident that we took the appropriate legal matters to get the search authorized by the judicial officials that looked at it,” he said.

“SFPD provides all known facts and information in support of a search warrant application,” spokesman Robert Rueca said in a statement to VICE News. “Department members followed all search warrant protocols during service to ensure the safety of the public.”

Burke, Carmody’s lawyer, has requested that police return his property — or at least not look at it — as his challenge to the search warrant plays out in court. But he told VICE News Wednesday that the department has yet to budge as he prepares motions to quash the two warrants. Preliminary hearings on both are expected next Monday.

For now, Carmody hopes that a GoFundMe campaign will help him stay afloat and buy new gear.

“I don’t take lightly asking for donations from the public,” Carmody told VICE News. “But how long am I supposed to be out of business? I’ve already spent thousands of dollars, and I’ve already lost thousands of dollars in business. We don’t really know what the end of this looks like.”

Cover: A screen grab from surveillance footage of police arriving at Bryan Carmody's front door. Photo provided by Carmody.