Citicasters, Inc. v. Claire C. McCaskill , 89 F.3d 1350 ( 1996 )

___________
No. 95-1894
___________
Citicasters, doing business as *
WDAF-TV, formerly known as *
Great American Television *
and Radio Company, Inc., *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Western District of Missouri.
*
Claire C. McCaskill, in her *
capacity as Jackson County *
Prosecutor, *
*
Appellant, *
*
Board of Police Commissioners *
of Kansas City, Missouri; *
Steven Bishop, in his capacity *
as Chief of Police of the *
Kansas City, Missouri Police *
Department; Ronald Parker, in *
his capacity as a Kansas City, *
Missouri police officer; Bailus *
M. Tate, in his official *
capacity as a member of the *
Board of Police Commissioners *
of Kansas City, MO; John A. *
Dillingham, in his official *
capacity as a member of the *
Board of Police Commissioners *
of Kansas City, MO; Jack W.R. *
Headley, in his official *
capacity as a member of the *
Board of Police Commissioners *
of Kansas City, MO; Dona R. *
Boley, in her official capacity *
as a member of the Board of *
Police Commissioners of Kansas *
City, MO; Emanuel Cleaver, II, *
in his official capacity as a *
member of the Board of Police *
Commissioners of Kansas City, *
MO, *
*
Defendants. *
___________
Submitted: December 13, 1995
Filed: July 19, 1996
___________
Before MAGILL, BRIGHT, and MURPHY, Circuit Judges.
___________
MAGILL, Circuit Judge.
Under the authority of a search warrant, investigating authorities
seized a videotape from WDAF-TV (WDAF), Kansas City, Missouri, which
recorded the commission of a crime. The station owner, Citicasters, Inc.,
brought this lawsuit for damages and injunctive relief for an alleged
violation of the Privacy Protection Act of 1980, 42 U.S.C. §§ 2000aa to
2000aa-12 (1994), against county prosecutor Claire C. McCaskill and Kansas
City police officials. The district court concluded that McCaskill had
violated the Act, but dismissed the actions against the police. It awarded
$1000 in liquidated damages and ordered the return of the videotape. See
Citicasters v. McCaskill, 883 F. Supp. 1282 (W.D. Mo. 1995).
McCaskill appeals, asserting that the district court erred in barring
her from showing that the circumstances relating to the seizure constituted
exceptions to the requirements of the Privacy Protection Act, that the
evidence did not support the judgment against her, and that injunctive
relief is not available under the Act. We agree with McCaskill that she
was improperly barred from invoking the exceptions to the Act, and that
there was insufficient evidence to support the judgment against her. We
reverse and remand.
-2-
2
I.
On August 5, 1994, at approximately 1:10 p.m., Julia Flege was
assaulted in public and brutally murdered. Earl Warren, a tourist in
Kansas City, captured the assault on videotape and, within hours, sold the
videotape to plaintiff Citicasters, Inc., which operated WDAF, a local
television station. WDAF presented a small portion of the tape on its 6
p.m. news broadcast later that same day.
Meanwhile, at approximately 1:30 p.m. on Friday, August 5, 1994,
Chancey E. Wright was detained in connection with Flege's murder. Under
Missouri law, Mo. Ann. Stat. § 544.170 (Vernon 1994), Wright had to be
charged with the crime by 9:30 a.m. on Saturday, August 6, 1994, or be
released. Learning of the videotape by its broadcast on the 6 p.m. news,
Captain Vince McInerney, commander of the media relations office of the
Kansas City Police Department, immediately contacted WDAF to request a copy
of the videotape. WDAF refused to cooperate. Michael Lewis, the station's
assignment manager, told McInerney that tourist Warren had left town with
the original tape,1 and that, while the
1
This conversation occurred at approximately 6:10 p.m. on
August 5, 1994, the day of the assault. Warren, however, had not
yet left town; he was, in fact, still on WDAF property. See J.A.
at 113 (testimony of Michael Lewis). After discontinuing his
conversation with Captain McInerney, station manager Lewis went to
speak with tourist Warren and his wife. Although the manager was
aware that the police desired a copy of the videotape of the
assault, that the station had refused to allow the police to
reproduce their copy, and that Warren had the original tape but was
about to leave town, Lewis failed to apprise Warren that the police
would like a copy of the tape. When Lewis again contacted the
police several minutes later, at 6:14 p.m. on Friday, August 5,
1994, to provide them with Warren's home phone number and address
in Texas and inform them that Warren would be home three days
later, Lewis failed to mention that Warren was still in town, and
still on station property. See id. at 111 (recorded phone message
from Lewis). Warren left WDAF's parking lot at approximately 6:25
p.m. on August 5, 1994.
-3-
3
police could view the portion of the tape that the station had aired on the
newscast, they could only obtain a copy of the entire tape through a court
order.
The Kansas City police sought a search warrant for WDAF to obtain the
videotape on the evening of August 5, 1994. In support of the application,
affiant Ronald Parker, a police veteran of twenty-two years and a detective
in the police department's homicide unit, submitted an affidavit which
recited the circumstances of victim Flege's murder, including the killer's
subsequent flight and assault on a police officer, and the existence of the
videotape.2 At 9:20 p.m. on the evening of August 5, 1994, approximately
eight hours after the assault and abduction of Flege, the Honorable Richard
E. Standridge, Associate Circuit Judge for Jackson County, Sixteenth
Judicial Circuit, State of Missouri, issued a search warrant to the police.
The warrant described the area to be searched--"The offices of the Great
American Television and Radio Station, also known as WDAF Channel
2
The search warrant application verified the following facts:
On [Friday,] 8/5/94 at approximately 1310 hours, Julia A.
Flege, W/F, 7/14/62, was abducted from the Liberty
Memorial Mall, 101 Memorial Drive. She was subsequently
taken to the Santa Fe Apts.[,] 2525 Main, where she was
killed by her abductor. As the suspect attempted to
escape 2525 Main, Kansas City, Missouri Police Officer
ordered the suspect to halt and drop his gun. The
subject turned towards the officer and pointed the
handgun at the officer. The officer fired one shot at
the subject, missing him. The news broadcast at 1800
hours on Channel 4, [four hours and fifty minutes after
Flege's abduction,] revealed a video tape shot by a
private citizen which showed the abduction of the victim
as well as the discharge by the Kansas City[,] Missouri
police officer. Upon contacting official of Channel 4
[approximately five hours after Flege's abduction] and
requesting a copy of the tape, detectives were advised
that the tape could be reviewed but no copies would be
released without a Court Order.
J.A. at 231.
-4-
4
4, at 3030 Summit, Kansas City, Jackson County, Missouri"--and the items
to be seized--"The original video cassette tape, and copies of the video
cassette tape, which show the abduction of Julia A. Flege which occurred
at 101 Memorial Drive on 8/5/94 at approximately 1310 hours and the
subsequent shooting which involved a Kansas City, Missouri Police Officer,
occurring at 2525 Main"--and that there was probable cause to believe that
the tape was at WDAF. J.A. at 232.
Police officers, accompanied by prosecuting attorneys, served the
warrant at WDAF that evening at approximately 10 p.m., some nine hours and
fifty minutes after the assault and abduction of Flege. An employee of
WDAF met them at the station and called Michael McDonald, the vice
president of news for WDAF. McDonald immediately came to the station. The
officers showed vice president McDonald the search warrant and demanded the
tape. McDonald responded that he would give them a copy of the material
that had been aired on the newscast, but that he would only surrender the
entire tape with a subpoena. Vice president McDonald called an attorney
for WDAF who arrived at the station at approximately 11:15 p.m. on Friday
evening. After further discussion and over WDAF's objections, the police
finally obtained possession of WDAF's copy of the entire tape sometime
between 11:45 p.m. and midnight that night. WDAF retained at least one
copy of the portion of the tape that had been shown on the newscast.
Citicasters brought this suit against defendants, alleging a
violation of the Privacy Protection Act because the police obtained the
videotape through a search warrant, rather than a subpoena duces tecum.
The district court held an expedited hearing on August 11-12, 1994. The
district court entered a judgment against
-5-
5
McCaskill for $1000 liquidated damages under the Privacy Protection Act,3
and McCaskill appeals.
II.
The Privacy Protection Act generally prohibits government officials
from searching for and seizing documentary materials possessed by a person
in connection with a purpose to disseminate information to the public. See
42 U.S.C. § 2000aa(b). Instead, the Act requires law enforcement agencies
to rely on the cooperation of the media or subpoenas duces tecum to obtain
such documentary materials. The Act contains important exceptions,
however, where searches and seizures are permitted. The Act provides that
it:
shall not impair or affect the ability of any government
officer or employee, pursuant to otherwise applicable law, to
search for or seize such materials, if--
(1) there is probable cause to believe that the person
possessing such materials has committed or is committing
the criminal offense to which the materials relate . . .
(2) there is reason to believe that the immediate
seizure of such materials is necessary to prevent the
death of, or serious bodily injury to, a human being;
(3) there is reason to believe that the giving of
notice pursuant to a subpena duces tecum would result in
the destruction, alteration, or concealment of such
materials; or
(4) such materials have not been produced in response
to a court order directing compliance with a subpena
duces tecum, and--
3
The district court also determined that the police were
immune from suit under the Act and dismissed the claim against
them. The district court dismissed a related claim for violations
of civil rights under 42 U.S.C. § 1983 against all the defendants.
These dismissals are not before us.
-6-
6
(A) all appellate remedies have been
exhausted; or
(B) there is reason to believe that the delay in an
investigation or trial occasioned by further
proceedings relating to the subpena would threaten
the interests of justice.
42 U.S.C. § 2000aa(b) (emphasis added).
As an affirmative defense, McCaskill asserted that the exceptions at
42 U.S.C. §§ 2000aa(b)(2) and (3) applied, barring Citicasters from
recovering under the Act. Noting that Detective Parker's affidavit in
support of the search warrant did not expressly recite exceptions (2) and
(3), the district court refused to allow McCaskill to prove the existence
of these exceptions in this case. The district court stated:
[T]he question for the court to consider is whether the
defendant may claim an exception to the Act when the
application for the search warrant is devoid of reasons
supporting the exception. The court finds that to allow a
defendant to claim an exception, after a search and seizure has
occurred, allows a defendant to justify its conduct in
hindsight. The legislative history of the Act envisioned that
a defendant would state the basis for exceptions when applying
for the warrant. Moreover, if circumstances exist which
constitute an exception, the defendant should state these
reasons in an affidavit for a warrant. Thus, because the
affidavit in support of the search warrant did not set forth
reasons which fall under an exception to the Act, the court
will not allow defendants to now invoke those exceptions.
Citicasters, 883 F. Supp. at 1288.4
4
The only legislative history cited by the district court to
support its conclusion is a reference by the Senate Committee on
the Judiciary, during its discussion of one of the exceptions to
the Act, to factors which "might be considered by a magistrate."
1980 U.S.C.C.A.N. 3950, 3959. See Citicasters, 883 F. Supp. at
1288.
-7-
7
We review the district court's interpretation of the Privacy
Protection Act de novo. See United States v. Lowe, 50 F.3d 604, 606 (8th
Cir.), cert. denied, 116 S. Ct. 260 (1995). There is no mention in the
Privacy Protection Act of any requirement that search warrant applications
describe exceptions to the Act,5 and we must determine if it was proper for
the district court to rely on the legislative history of the Act to create
such a requirement.
It is a fundamental canon of statutory interpretation that
we begin with the language of the statute and ask whether
Congress has spoken on the subject before us. If the intent of
Congress is clear, that is the end of the matter; for the court
. . . must give effect to the unambiguously expressed intent of
Congress.
Norfolk & Western Ry. v. American Train Dispatchers' Ass'n, 499 U.S. 117,
128 (1991) (quotations omitted); see also Negonsott v. Samuels, 507 U.S.
99, 104 (1993) ("Our task is to give effect to the will of Congress, and
where its will has been expressed in reasonably plain terms, that language
must ordinarily be regarded as conclusive.") (quotations omitted); Barnhill
v. Johnson, 503 U.S. 393, 401 (1992) ("appeals to statutory history are
well-taken
5
This appears to be an issue of first impression. We note
that the United States Attorney General, pursuant to the Privacy
Protection Act's mandate, see 42 U.S.C. § 2000aa-11, has
promulgated guidelines defining the procedures by which federal
agents may seek search warrants to obtain documentary materials in
the hands of disinterested third parties. See 28 C.F.R. §§ 59.1-
59.6 (1995). At § 59.1(b), the regulations declare that "[i]t is
the responsibility of federal officers and employees to recognize
the importance of these personal privacy interests, and to protect
against unnecessary intrusions." Factors which a government
officer should consider in deciding whether to seek a search
warrant or a subpoena include "[w]hether the immediate seizure of
the materials is necessary to prevent injury to persons or property
. . . ." § 59.4(c)(2)(ii). Nowhere do the regulations advise
federal agents to document these concerns in the application for a
search warrant; rather, these are determinations to be made by the
federal agents, their supervisors, and agency attorneys. See
§ 59.4(a)(2).
-8-
8
only to resolve statutory ambiguity") (quotations omitted); Virginia Univ.
Hosp., Inc. v. Casey, 499 U.S. 83, 98-99 (1991) ("The best evidence of
[statutory] purpose is the statutory text adopted by both Houses of
Congress and submitted to the President. Where that [statutory text]
contains a phrase that is unambiguous--that has a clearly accepted meaning
in both legislative and judicial practice--we do not permit it to be
expanded or contracted by the statements of individual legislators or
committees during the course of the enactment process."); Arkansas AFL-CIO
v. FCC, 11 F.3d 1430, 1440 (8th Cir. 1993) (en banc) ("If the intent of
Congress is clear from the plain language of the statutory provision, that
will be the end of the judicial inquiry."). This rule of statutory
interpretation exists because "when, as here, the statutes are
straightforward and clear, legislative history and policy arguments are at
best interesting, at worst distracting and misleading, and in neither case
authoritative." Northern States Power Co. v. United States, 73 F.3d 764,
766 (8th Cir. 1996).
We find no ambiguity in the Privacy Protection Act. See Brown v.
Gardner, 115 S. Ct. 552, 555 (1994) ("Ambiguity is a creature not of
definitional possibilities but of statutory context."). The Act presents
a straightforward statutory scheme for protecting those engaged in
information dissemination from government intrusion by prohibiting searches
and seizures of documentary materials except where government officials
have a reasonable belief that a statutory exception applies. Although
Congress could have chosen to include elaborate procedural requirements in
the Act,6 it instead created a private cause of action as the exclusive
6
The dissent argues that "it is the absence of procedural
requirements rather than any ambiguity that is crucial in deciding
this case." Slip op. at 15. We disagree. It is precisely the
lack of ambiguity that is crucial in this case, for this mandates
that we enforce the plain language of the statute. That Congress
did not choose to substantially interfere with the procedures by
which state judicial officers issue search warrants to state law
enforcement officials more likely reflects, in our view,
congressional appreciation of the proper restraints of federalism,
rather than congressional ineptitude in drafting the legislation
that it intends.
-9-
9
remedy to ensure that the protections of the Act would be effective, and
allowed recovery of damages against those found liable for violations of
the Act. See 42 U.S.C. §§ 2000aa-6(a), (d), (f).7
Where Congress has provided a specific means for achieving its
purpose, we must honor its decision, and not embellish its legislative
scheme with additional procedural innovations. See, e.g., Director, Office
of Workers' Comp. Prog. v. Newport News Shipbuilding & Dry Dock Co., 115
S. Ct. 1278, 1288 (1995) ("Every statute proposes, not only to achieve
certain ends, but also to achieve them by particular means--and there is
often a considerable legislative battle over what those means ought to
be."); MCI Telecommunications Corp. v. American Tel. & Tel. Co., 114 S. Ct.
2223, 2232 n.4 (1994) (Courts and agencies "are bound, not only by
Indeed, we note that Congress did choose to somewhat modify
the search warrant application process in other circumstances. See
42 U.S.C. § 2000aa(c) (where 42 U.S.C. § 2000aa(b)(4)(B) exception
applies, person possessing materials may submit an affidavit
contesting issuance of warrant). We find that this strongly
suggests that Congress is capable of enacting the legislation that
it intends, and that by its silence Congress did not mean to create
additional procedural requirements. The district court, however,
interpreted this provision somewhat differently. While noting that
"[a] literal reading of the statute reveals that an affidavit can
only be submitted when a search warrant is obtained after non-
compliance with a subpoena duces tecum," Citicasters, 883 F. Supp.
at 1290, the district court nevertheless required the availability
of an affidavit whenever "a government entity bypasses the primary
protection provided by a subpoena." Id. While we may not reach
this point on appeal because it was not raised by the parties, we
do observe that the "literal reading" of a statute is often the
best place to begin, and end, an interpretive analysis.
7
The dissent, arguing that "the majority pulls the teeth out
of the statute" by failing to add procedural requirements, Slip op.
at 20, simply ignores this legislative determination that the award
of damages is sufficient to ensure an effective statute.
-10-
10
the ultimate purposes Congress has selected, but by the means it has deemed
appropriate, and prescribed, for the pursuit of those purposes."). Had
Congress desired to create additional procedural requirements to guard
against post hoc justifications for searches, it presumably would have done
so; it is not for the federal courts to redraft legislation merely because
we would have selected different procedures.8
Because there is no ambiguity in the statute, the district court
erred in relying on the legislative history of the Privacy Protection Act.
Because the Privacy Protection Act does not require an application for a
search warrant to describe any exceptions to the Act, the district court
erred in imposing such requirements on the defendants in this case.
McCaskill should have had the opportunity to prove that the exceptions
claimed in fact existed, and we remand for a hearing on this issue.
III.
The district court found that "Claire McCaskill, the Prosecuting
Attorney of Jackson County, Missouri, assisted in executing the search
warrant on plaintiff at its business premises." Citicasters, 883 F. Supp.
at 1285. This Court reviews a district court's factual findings for clear
error. See Stevens v. McHan, 3 F.3d 1204, 1206 (8th Cir. 1993). "A
factual finding is
8
Although, by its terms, the Privacy Protection Act
significantly restricts the ability of law enforcement officials to
search for and to seize certain documentary evidence of crimes,
Congress took pains to limit the Act's chilling effect on law
enforcement. See, e.g., 42 U.S.C. § 2000aa-6(e) (materials shall
not be excluded as evidence because of a violation of the Act); 42
U.S.C. § 2000aa-6(b) (creating good faith defense to civil action).
With due respect, the district court's expansive interpretation of
the Act simply disregards the balance struck by Congress between
preserving the ability of government officials to prosecute crime
and protecting those engaged in the dissemination of information
from government intrusion.
-11-
11
clearly erroneous if it is not supported by substantial evidence in the
record, if it is based on an erroneous view of the law, or if the reviewing
court is left with the definite and firm conviction that an error has been
made." Burns v. McGregor Elec. Indus., Inc., 955 F.2d 559, 563 (8th Cir.
1992). McCaskill asserts that there is insufficient evidence to support
the district court's finding that she or anyone acting on her behalf
participated in the execution of the search warrant.
McCaskill's position is well taken. At the initial hearing, an
assistant county prosecutor testified that "the prosecutor's office is not
directly involved with the searching, or the serving [of] a search
warrant." J.A. at 91. Indeed, under Missouri law, a search warrant "may
be executed only by a peace officer." Mo. Ann. Stat. § 542.276.7 (Vernon
1994).
We are aware of only two instances in the record which would indicate
that McCaskill engaged in the search and seizure. First, in her answer to
the complaint, McCaskill, who was one of a host of defendants in this
action, admitted that "defendants came to plaintiff's business premises and
served plaintiff with a search warrant." J.A. at 129, 140. Second, at the
preliminary hearing, McCaskill examined an assistant prosecuting attorney
from her office. One question she asked the attorney began, "At the point
in time that we took the tape . . . ?" J.A. at 79. A question from an
attorney is hardly strong evidence of a proposition, however, and the
testimony at trial indicated that McCaskill herself was not present when
the warrant was initially served. See J.A. at 54.
Nevertheless, if McCaskill's statements are not sufficient evidence
of her participation in the search and seizure, they were at least
misleading to the plaintiffs. The hearing held in the district court was
not a full hearing, and Citicasters should have the opportunity to
establish that McCaskill directed, supervised,
-12-
12
or otherwise engaged in the execution of the warrant to such an extent that
a finding can be made that she "searched for or seized" the tape. See 42
U.S.C. § 2000aa(b). Accordingly, we remand and "exercise our discretion
to order a new trial rather than a judgment for defendant." F & H Inv. Co.
v. Sackman-Gilliland Corp., 728 F.2d 1050, 1055 (8th Cir. 1984) (citing 9
Wright & Miller, Federal Practice & Procedure: Civil § 2540 & p. 617
(1971)).
IV.
The district court required that the actual tape seized be returned
to the plaintiff:
With regards to plaintiff's request for return of its
videotape, the court notes that at the hearing held on August
12, 1994, defendants agreed to return to plaintiff the
videotape seized on August 5. The court was under the
impression that the tape was returned to plaintiff. Indeed,
defendants contend that the original tape has been returned to
plaintiff. Plaintiff, however, claims that its request for
injunctive relief for return of the videotape is not mooted
because defendants have provided plaintiff with a copy of the
videotape in question. Plaintiff maintains that defendants
still retain the original videotape. It was this court's
understanding that the original videotape was returned to the
plaintiff. Thus, the defendants shall return the original
videotape to the plaintiff if they have not already done so.
Citicasters, 883 F. Supp. at 1289.
The district court labeled this order as a form of injunctive relief,
and the parties have briefed the issue in that context. We conclude,
however, that the district court was not actually granting an injunction,
but was rather reaffirming the prior agreement of the parties. It is
unclear from the record whether the parties disputed Citicaster's right to
regain the actual tape seized. If there is any continuing dispute
concerning the return
-13-
13
of the seized tape, we leave its resolution to the district court on
remand.
V.
We reverse the district court and remand for an evidentiary hearing
on the issue of McCaskill's participation in the search and seizure. If
the district court finds that McCaskill did participate in the search and
seizure, the court shall also determine whether, at the time of the search,
McCaskill possessed a reasonable belief that an exception to the Privacy
Protection Act existed.
BRIGHT, Circuit Judge, concurring in part and dissenting in part.
Under most circumstances, the Privacy Protection Act prohibits the
government, in connection with the investigation of a criminal offense,
from searching and seizing documentary materials from news or information
organizations. See 42 U.S.C. § 2000aa(b). Under the Act, the government
may not obtain a search warrant but must instead rely upon a subpoena duces
tecum or the voluntary release of the materials. The Act, however, exempts
certain situations where immediate seizure is justified, such as where a
risk exists that the materials may be destroyed or another person may be
physically harmed. The case before us raises the question whether
government officials may claim such exceptions to the Privacy Protection
Act when the application for the search warrant is devoid of any statements
supporting those exceptions. Because I conclude that the Privacy
Protection Act constrains government action by requiring the government to
establish an exception to the Act before it can obtain a warrant to search
the office of a news agency, I dissent from Part II of the opinion.
I agree with the majority that "[t]he task of resolving the dispute
over the meaning of [a statute] begins where all such
-14-
14
inquiries must begin: with the language of the statute itself." United
States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989). The Privacy
Protection Act specifically lists the four exceptions to the Act and
requires "reason to believe" that one of the invoked exceptions applies.
Contrary to the position of the majority, however, the statute contains no
direct statement as to whether it is the issuing magistrate judge who must
determine the existence of an exception or whether its existence can be
asserted after-the-fact by the investigating authorities.1 The Act
establishes a substantive standard but is silent as to the appropriate
procedural requirements.
Although the majority opinion explains that the language of the
statute is not ambiguous, it is the absence of procedural requirements
rather than any ambiguity that is crucial in deciding this case. The areas
the statute addresses are clear and we need not and should not embellish
upon them. The statute, however, does not address the process for
obtaining a warrant. It is this absence of a statutory directive which
faces us here.
Where the statute does not speak on an issue, this court has turned
to other sources to determine the intent of Congress. The legislative
history may provide guidance. See Wisconsin Public Intervenor v. Mortier,
501 U.S. 597, 611-12 n. 4 (1991); Arkansas AFL-CIO v. F.C.C., 11 F.3d 1430,
1440 (8th Cir. 1993) (en banc)
1
The text of the statute implies that the issuing magistrate
judge must find the existence of an exception before a lawful
warrant can issue. One of the exceptions pertains to instances
where the party in possession has failed to comply with a subpoena
duces tecum and further delay would "threaten the interests of
justice." 42 U.S.C. § 2000aa(b)(4). In such an event, section
2000aa(c) requires that the person in possession be afforded the
opportunity to submit an affidavit stating why the materials sought
are not subject to seizure before the warrant issues. This
exception, without directly stating so, presupposes that a
magistrate judge, rather than the investigating authorities, makes
the determination.
-15-
15
(conducting a Chevron analysis). The circumstances surrounding the
enactment of the statute can also be helpful in deciphering congressional
intent. See Security Bank Minnesota v. C.I.R., 994 F.2d 432, 436 (8th Cir.
1993). When interpreting a statute, we must consider the statute in light
of judicial concepts existing before it was enacted. Estate of Wood v.
C.I.R., 909 F.2d 1155, 1160 (8th Cir. 1990); Stillians v. Iowa, 843 F.2d
276, 280 (8th Cir. 1988). Finally, we look to the overall purpose of the
Act. See In re Graven, 936 F.2d 378, 385 (8th Cir. 1991).
The Privacy Protection Act was prompted by the Supreme Court's
decision in Zurcher v. Stanford Daily, 436 U.S. 547 (1978). See S. Rep.
No. 874, 96th Cong., 2d Sess., reprinted in 1980 U.S.C.C.A.N. 3950, 3950-
51. In Zurcher, the Stanford Daily, a student newspaper, had published
articles and photographs of a demonstration at which several police
officers were assaulted. 456 U.S. at 550-51. As part of its
investigation, the district attorney obtained a search warrant and searched
the newspaper's offices for additional photographs of the incident. Id.
The newspaper brought a declaratory judgment action claiming, among other
things, that the search warrant was issued in violation of the Fourth
Amendment. The district court held, "unless the Magistrate has before him
a sworn affidavit establishing proper cause to believe that the materials
in question will be destroyed, or that a subpoena duces tecum is otherwise
`impractical', a search of a third party for materials in his possession
is unreasonable per se, and therefore violative of the Fourth Amendment."
Stanford Daily v. Zurcher, 353 F. Supp. 124, 127 (N.D. Cal. 1972).2 The
2
In explaining its decision, the district court stated,
It should be apparent that means less drastic than
a search warrant do exist for obtaining materials in
possession of a third party. A subpoena duces tecum,
obviously, is much less intrusive than a search warrant:
the police do not go rummaging through one's home,
office, or desk if armed only with a subpoena. And,
perhaps equally important, there is no opportunity to challenge the
search warrant prior to the intrusion, whereas one can always move
to quash the subpoena before producing the sought-after materials.
Stanford Daily v. Zurcher, 353 F. Supp. 124, 130 (N.D. Cal. 1972).
-16-
16
court of appeals affirmed per curiam, adopting the opinion of the district
court. 550 F.2d 464 (9th Cir. 1977). The Supreme Court reversed, holding
that the Fourth Amendment does not provide any special protection against
search and seizure for the possessor of documentary evidence who is not a
suspect in the offense under investigation. 436 U.S. at 560.
At the close of the majority opinion in Zurcher, the Court stated,
"[o]f course, the Fourth Amendment does not prevent or advise against
legislative or executive efforts to establish nonconstitutional protections
against possible abuses of the search warrant procedure, . . ." Id. at
567. Congress took the "invitation" of the Court and enacted the Privacy
Protection Act of 1980. See 1980 U.S.C.C.A.N. at 3952.
Congress stated that the Privacy Protection Act responded to the
Zurcher decision. Id. at 3950. In Zurcher, the Supreme Court addressed
whether the application for a search warrant must establish "special
circumstances" before a warrant to search the office of a news agency may
lawfully issue. Zurcher focused entirely on the substantive issue of what
circumstances must be established; there was no dispute as to when or by
whom the determination would be made. Both Justice White's majority
opinion and the dissenting opinion of Justice Stevens indicated that it was
the issuing magistrate judge who would determine whether the necessary
requirements were fulfilled. See 436 U.S. at 550, 577. Thus the
legislative reaction to Zurcher focused on the substantive standard rather
than the undisputed procedural framework. The
-17-
17
logical conclusion is that Congress envisioned the procedural framework to
remain intact.
The legislative history of the Act indicates that Congress assumed
that the exceptions to the Act would be considered by a magistrate judge
prior to the issuance of a search warrant. In discussing the third
exception to the Act, the Senate Report provides:
Among the factors which the Committee believes might be
considered by a magistrate in determining whether materials
might be destroyed are evidence of a close personal, family or
business relationship between the person in possession of the
material with a person who is a suspect; evidence of prior,
similar conduct by a party who may exert control of the
material; or evidence that a party in possession of the
material has expressed an intent to hide, move, or destroy the
material sought.
1980 U.S.C.C.A.N. at 3959-60 (emphasis added). Senators Orrin Hatch and
Alan Simpson of the Senate Judiciary Committee submitted "additional views"
which were included in the legislative history. The Senators stated:
The Stanford Daily case held that the Constitution does
not require a magistrate to conclude that warrant searches of
the press are necessarily "unreasonable". The committee in
adopting [the Act] is, in effect, instructing magistrates and
others empowered to issue warrants that a search directed at
the documentary materials of journalists is to be considered in
itself "unreasonable" in the absence of certain enumerated
circumstances.
1980 U.S.C.C.A.N at 3968.
The legislative history of the Act also indicates that although the
Privacy Protection Act is a statutory rather than a constitutional
limitation on the power of the government, it was
-18-
18
intended to be read in conjunction with the Fourth Amendment.3 First,
Zurcher was a Fourth Amendment case. Second, the "legal history" of the
Privacy Protection Act as developed in the Senate Report is comprised
entirely of the historical development of the Fourth Amendment. See 1980
U.S.C.C.A.N. at 3952-54. Finally, in defining the purpose of the Act, the
Senate Report stated, "The Committee bill, as amended, affords the press
and certain other persons not suspected of committing a crime with
protections not provided currently by the Fourth Amendment." 1980
U.S.C.C.A.N. at 3950. The legislative intent was to build upon the Fourth
Amendment.
In United States v. United States District Court, 407 U.S. 297, 316
(1972), the Supreme Court relayed "the very heart of the Fourth Amendment
directive:
where practical, a governmental search and seizure should
represent both the efforts of the officer to gather evidence of
wrongful acts and the judgment of the magistrate that the
collected evidence is sufficient to justify invasion of a
citizen's private premises or conversation. Inherent in the
concept of a warrant is its issuance by a "neutral and detached
magistrate."
Id. (citation omitted).4 In the warrant process, it is the
3
The language of the statute implies that the Act was intended
to be a statutory extension of the Fourth Amendment. Section
2000aa-6(e) provides that the statute does not extend the
application of the exclusionary rule: "Evidence otherwise
admissible in a proceeding shall not be excluded on the basis of a
violation of this chapter." Nothing on the face of the Act
specifically invokes the exclusionary rule. Unless the Act were
intended as a statutory extension of the Fourth Amendment,
disclaiming the exclusionary rule would be an anomaly. The
presence of this provision thus indicates that the statute extends
the framework of the Fourth Amendment, but is not intended to
extend the exclusionary rule.
4
Justice Jackson underscored the importance of a neutral
magistrate judge in effectuating the goals of the Fourth Amendment:
The point of the Fourth Amendment, which often is
not grasped by zealous officers, is not that it denies
-19-
19
province of the magistrate judge to independently find the existence of the
requisite conditions before a lawful warrant can issue. When viewed in
conjunction with this constitutional allocation of responsibility, the
Privacy Protection Act logically places the determination of whether an
exception exists in the discretion of the magistrate judge issuing the
search warrant.
By construing the Act so as not to require a prior judicial
determination, the majority pulls the teeth out of the statute. The
purpose of the Privacy Protection Act is to prevent the search and seizure
of documentary materials from persons disseminating information. After-
the-fact review can only punish violation, not prevent it. Furthermore,
permitting an after-the-fact showing of what was "known" to the affiant but
not communicated to the magistrate judge contains too great a potential for
abuse; there could often be no assurance that the critical facts and
details were in fact known prior to the issuance of the warrant. See 2
Wayne R. LaFave, Search and Seizure § 4.3(a), at 459 (3d ed. 1996).
In its decision, the majority ignores the circumstances surrounding
the enactment of the Privacy Protection Act, its legislative history, its
intimate association with Fourth Amendment principles, and its purpose of
preventing searches and seizures. For these reasons, I must dissent as to
Part II of the court's opinion.
law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection
consists in requiring that those inferences be drawn by
a neutral and detached magistrate instead of being judged
by the officer engaged in the often competitive enter-
prise of ferreting out crime.
Johnson v. United States, 333 U.S. 10, 13-14 (1948).
-20-
20
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
-21-
21