News organizations ask Supreme Court to uphold ride-alongs with police

Monday, August 31, 1998

The Supreme Court has not ruled in a case involving the newsgathering techniques of the media since the beginning of the decade. But a group of cases on the high court’s horizon could change all that this fall.

The cases, which the court has not yet agreed to consider, involve police “ride-alongs” that the news media have engaged in for decades, for the mutual benefit of both the media and police.

The targets of these ride-alongs don’t see the benefit in the same light and have mounted constitutional challenges to the technique. They claim that their privacy has been violated, and that the media are, in effect, acting as government agents during the events, violating their Fourth Amendment rights against improper search and seizure.

“Media access to many vital law enforcement activities will cease” if ride-alongs are found unconstitutional, says Seattle media lawyer P. Cameron DeVore in a brief before the court.

“There can be little doubt that much valuable reporting will simply not be undertaken,” adds Washington, D.C., media lawyer Lee Levine.

Here is how the media ride-along usually works. Police alert the news media, usually on a confidential basis, in advance of a raid or execution of a search warrant. The media than accompany law enforcement officials and record the event, giving the media dramatic material while also giving police publicity which, police say deters future crime.

The proliferation of syndicated “real-life” crime and police shows has only increased the use of the technique, and controversy has also grown. Some critics of the government’s 1993 raid on the Branch Davidian compound in Waco, Texas, claim that an early tip to the media about the impending raid also alerted cult members and increased casualties.

But the controversy has taken on constitutional dimensions with the initiation of suits by defendants targeted in ride-alongs. To make a Fourth Amendment argument, targets have contended that the media in a ride-along situation work so closely with police in advance of a raid that they take on the coloration of state actors, in effect turning the media into an arm of government.

“A private home is not a soundstage for law enforcement theatricals,” the 2nd U.S. Circuit Court of Appeals ruled in a 1995 case involving a Secret Service raid on a woman suspected of credit card fraud, which was conducted with CBS cameras rolling.

More recently, the 9th U.S. Circuit Court of Appeals took a similarly disapproving stance of ride-alongs in a suit brought by a Montana rancher who was suspected of poisoning endangered wildlife. CNN cameras and microphones accompanied U.S. Fish and Wildlife Service agents as they searched the property in 1993, though CNN never actually entered the targeted home.

CNN and the wildlife service had signed a formal agreement beforehand — not the typical practice for most ride-alongs — allowing CNN’s participation on the condition that the footage not be aired when it could still affect the defendant’s right to a fair trial.

The 9th Circuit reviewed the facts of the case and concluded the record contains “more than enough (evidence) to make the media government actors.”

The court added, “This was no ordinary search,” and concluded that the law enforcement agents had violated the rancher’s Fourth Amendment rights by allowing CNN to record the search. This was the case, the court asserted, because the search served “a major purpose other than law enforcement,” namely publicity for the government and commercial benefit for CNN.

Both CNN and the government agents are appealing the 9th Circuit ruling in CNN v. Berger and Hanlon v. Berger, and a coalition of news organizations has filed a friend-of-the-court brief. The news media brief argues that if the 9th Circuit ruling stands, it will “effectively curtail” an important media function under the First Amendment — scrutinizing the activities of law enforcement. The media also point out that other courts have ruled in opposite ways, leaving the law unclear for both government and the media.

One of the contrary rulings is also being appealed before the Supreme Court in the term that begins Oct. 5. In Wilson v. Layne, the target of a 1992 raid in Rockville, Maryland, is challenging a ruling by the 4th U.S. Circuit Court of Appeals. Federal marshals were executing warrants searching for Dominic Wilson, wanted for violating probation. A reporter and photographer for The Washington Post accompanied police. Wilson was not on the premises during the search, but photos were taken (never published, however) and the family sued on Fourth Amendment grounds.

After years of litigation, the 4th Circuit ruled that police had “qualified immunity” from being sued in the incident because it was not clear that ride-alongs were unconstitutional. The court did not rule whether they were or weren’t, but said the issue was unclear enough that police should not have been expected to know that ride-alongs should not have been allowed.

The court also noted that ride-alongs could serve a legitimate law enforcement purpose by deterring other crime and by preventing police abuse.

This sort of disagreement between lower courts may have set up just the kind of conflict that the nation’s highest court often tries to referee.

But the appeals come at a time when media newsgathering techniques are under increasing and unfavorable scrutiny, and when the public is voicing increasing concern about violations of privacy. An appeal involving the dispute between the Food Lion grocery chain and ABC News over ABC’s undercover investigation of unsanitary food-handling could also reach the Supreme Court in the coming term.

Though the Supreme Court traditionally protects the news media from restriction, how the court will rule on ride-alongs and other newsgathering techniques is far from clear.

“Citizens have the most to lose when the media and government align in such actions,” says the conservative Washington Legal Foundation, which supports the challenges to ride-alongs. “What results are activities and prosecutions motivated by publicity, not the public interest, and violations of privacy.”

Court action on the appeals — a decision on whether or not to rule on the issue — could come as soon as October.