Search Warrants Don't Allow Spectators

Paul Wright, the imprisoned editor of Prison Legal News, sent this. PLN is available from P.O. Box 1684, Lake Worth, FL 33460. $12 for subscriptions and $1 for a sample copy. (The contact information is from the mid-1990s, so I am not sure it is still correct.)

In a landmark decision a federal court in New York has ruled that a CBS film crew and Secret Service agents are liable for filming and broadcasting a search of a private citizen's home. It is the first reported court decision to hold a television broadcaster liable for accompanying police agents on a search and filming it for the broadcast. Anyone who has watched "Cops," "Hard Copy," "America's Most Wanted," or any of the "real life" cop shows has seen the degrading and propagandistic manner in which the victims of police repression are portrayed. The broadcasters and the police can be sued and held liable for such actions.

In 1992 Secret Service agents obtained a search warrant from a federal court authorizing the search of an apartment shared by Babatunde Ayeni, his wife Tawa, and small son Kayode, seeking evidence of a credit card fraud operation. At 6PM on March 5, 1992, several Secret Service (SS) agents forced their way into the Ayeni residence announcing they had a warrant to conduct a search and ask questions. Only Mrs. Ayeni and her son were home at the time. At about 8:15 four more SS agents arrived with a film crew from the CBS news program "Street Stories." The CBS film crew was never identified as CBS employees. The CBS crew followed the SS agents and taped them as they searched the apartment. They took closeup shots of the home's interior, its closets, personal letters, family photos, etc. In the apartment's foyer an SS agent was interviewed about the modus operandi of people who commit credit card frauds and the tools of their trade. During this tape sequence the SS agent implied the complicity of the other residents of the Ayeni apartment. No evidence implicating the Ayenis in any illegal activity was found during the search. One of the agents was filmed expressing his disappointment.

The Ayenis filed suit against the federal agents as well as CBS, contending that the search and its filming violated their fourth amendment right to be free from unreasonable search and seizure. In his opinion Judge Weinstein agreed with the Ayenis. The defendants sought qualified immunity, which the court denied.

Under the doctrine of qualified immunity government agents are entitled to be free from liability for money damages even if they violate constitutional rights as long as the right is not "well established" so that a person of reasonable intelligence would know that the right violated was recognized. In the case the court held that any reasonable police agent would have known that it is unconstitutional to have private citizens accompany them on a search to film and broadcast the search. The court relied on 18 U.S.C. sec. 3105 which requires that search warrants be served by an official authorized to serve the warrant and by no other person unless their assistance is required in conducting the search, i.e. an accountant, forensic expert, etc., depending on the nature of the offense being investigated. Thus, the SS agents should have known that having a film crew taping their activities was illegal. Courts have previously held that taking photos is a "seizure" within the meaning of the fourth amendment. CBS also claimed qualified immunity from suit. The court notes that private entities are not entitled to qualified immunity from suit, it only applies to government actors.

The court used harsh language in condemning the actions by the SS and CBS. "The search warrant was issued to agent Mottola and other agents of the Unites States Secret Service for precise and limited purposes. It authorized their entry into the Ayenis' home only to search for items related to credit card fraud. Agent Mottola's act of facilitating the CBS camera crew's entry into the apartment and its filming of the search exceeded the scope of the warrant. It was allegedly in clear violation then well [sic] established fourth amendment principles. is the equivalent of a rogue policeman using his official position to break into a home in order to steal objects for his own profit or that of another."

For immunity purposes it would be "...grossly unreasonable for a government agent not to have known that the presence of private persons he invited in so that they could titillate and entertain others was beyond the scope of what was lawfully authorized by the warrant.

"CBS had no greater right than that of a thief to be in the home, to 'capture' the scene of the search on film and to remove the photographic record. The images, though created by the camera, are a part of the household; they could not be removed without permission or official right....The television tape was a seizure of private property, information, for non-governmental purposes."

It is entirely possible that litigation by the victims of this type of police and media activity may be able to halt the spread of "police TV." Findings of liability against both police and the broadcaster will see to it that police activity is not broadcast to "entertain and titillate." So if you've been filmed against your will during a police search you too can sue for an invasion of your privacy and your fourth amendment rights. The court decision is reported at: Ayeni v. CBS, Inc., 848 F. Supp 362 (ED NY 1994).