JACKSON COUNTY, MO., Prosecuting Attorney Claire McCaskill got her wrists slapped recently by a federal judge for using a search warrant to seize a videotape from the news office of WDAF-TV in Kansas City, Mo.
Although Judge Fernando Gaitan Jr. awarded the station $1,000 in damages, he also ruled that its ability to "gather and disseminate news" had not been impaired.
The decision of the United States District Court for the Western District of Missouri resulted from an Aug. 5 raid on the TV station. On its 6 p.m. news show, the station aired portions of a 14-minute videotape it had purchased for $150 from a tourist (E&P, Sept. 17, 1994, p. 48).
The videotape showed a man dragging a woman into a Kansas City apartment building and then emerging alone without her. The woman was later found dead in the building's lobby. She had been shot to death.
The videotape also showed an exchange of gunfire taking place between the man and police.
A police investigator was told by WDAF's assignment manager that the police would need a subpoena to get a copy of the videotape. At approximately 10 p.m., Prosecutor McCaskill and a Kansas City police officer showed up at the station with a search warrant, not a subpoena. They did not interrupt the news broadcast, but they departed with the station's videotape.
On Aug. 10, the station's attorney, Sam Colville, filed suit, claiming among other things, violation of the Privacy Protection Act of 1980.
Congress passed the Privacy Protection Act in the wake of Zurcher vs. Stanford Daily, a United States Supreme Court decision that upheld the knock-and-enter search of a newsroom by police who have a search warrant.
Under this act, the federal, state, and local authorities must use a subpoena duces tecum -- a subpoena for documents -- instead of a search warrant if they want to seize a journalist's "work product" or documentary materials.
"Work product" is defined as materials that are prepared "in anticipation of communicating such materials to the public."
The judge ruled that the Texas tourist had not anticipated showing his videotape to the public when he shot it, so it could not be considered "work product." Instead, the judge ruled that the videotape fell into the category of "documentary materials" -- that is to say, materials "possessed ... in connection with a purpose to disseminate to the public."
Under the act, authorities are permitted to use search warrants instead of subpoenas to seize either work product or documentary material when certain exceptions apply: (1) If probable cause exists to believe the reporter was involved in the crime being investigated, or (2) there is danger of bodily harm or loss of life. In addition, search warrants for documentary material are authorized, if (3) there is danger the material will be destroyed or (4) the authorities have already tried a subpoena but the journalist has failed to respond.
The judge said the WDAF's videotape was protected under the Privacy Protection Act from seizure by a search warrant. …