Unsealed Warrants Show SFPD Officer Told Judges He Was Targeting A Journalist, But Judges Approved Them Anyway
The initial warrant, issued in February by Judge Rochelle East was the first be declared invalid. Judge East said the warrant application was misleading, omitting information that would have made it clear Carmody was a journalist and protected by the state’s shield law. This warrant — seeking access to phone call and text message records — has been tossed. Since everything else in the Carmody investigation stems from this illegal search, the rest of the warrants are destined for the dustbin.
Judge East’s findings have led to two more judges tossing warrants they issued. It also has led — at least in Judge Victor Hwang’s case — to the judge possibly reading the warrant for the first time. This statement from David Snyder of the First Amendment Coalition says the warrant Judge Hwang tossed contained information about Carmody that made it clear the SFPD was targeting a journalist.
The search warrant application unsealed today shows, beyond any reasonable doubt, that the San Francisco Police Department knew Bryan Carmody is a journalist before they sought a search warrant for his office — and that they provided ample evidence of that fact to the San Francisco judge that authorized the unlawful search of his office.
The warrant [PDF] contains passages that indicate Carmody is in the journalism business. SFPD Sgt. Joseph Obidi dances around it a bit but ultimately delivers enough information that an attentive judge would have rejected this attempt to bypass the state’s shield law.
The swearing officer notes that Carmody “is not currently employed at any of the news organizations” that published the leaked death report. But there are other passages in the affidavit’s narrative that point towards Carmody’s occupation.
Sgt. Watts asked Mr. Carmody if the [officers] that [leaked a copy of a death report to him] profited financially, he stated no. Sgt. Watts asked him if he profited financially, he responded by saying that he profits financially from every story he covers.
And, more explicitly:
It is my belief that Mr. Carmody still has the original copy of the police report in order to further his financial profits by selling it to other interested parties or news outlets at the time. I also believe Mr. Carmody kept the original copy the report as part of his portfolio/records of news stories he has participated in to keep track of his achievements. […] I believe it is reasonable that someone who makes a career out of producing/selling hot news stories would keep a copy of that as part of his resume.
The affidavit also makes reference to the warrant obtained from another judge to search Carmody’s residence. If so, Judge Gail Dekreon likely saw the same narrative and assertions, and yet still gave the SFPD permission to search a journalist’s home. As Synder points out, this is unacceptable.
[T]hese statements represent a massive failure by both SFPD and the judiciary to recognize and safeguard the Constitutionally protected rights of Bryan Carmody and, by extension all journalists.
All the warrants will ultimately be tossed because every one of them is predicated on an invalid warrant and an illegal search of Carmody’s phone records. But these should have been rejected by the judges who initially reviewed them, shutting down the SFPD’s attempt to circumvent the state’s shield law. The judicial branch’s powers aren’t just curative or restorative. They’re also supposed to be preventative. Here they failed, leading to multiple rights violations that never should have been allowed to happen.