Supreme Court to hear Fourth Amendment cases with press implications

Wednesday, March 24, 1999

None of the lawyers arguing before the Supreme Court today will be representing the news media. And the words “First Amendment” may never be uttered.

But the media and the public’s right to know have a considerable stake in the outcome of two cases that the court will consider today. Both cases ask the high court to examine a longstanding tradition in the often cozy relationship between the press and the police: the ride-along, in which police allow the news media to accompany them on raids on private property.

The cases arise in the context of lawsuits by the targets of such raids against the law enforcement officials who invited the press to ride along. The issue before the court will be whether the Fourth Amendment’s bar against unreasonable government searches prohibits the practice — and whether law enforcement officials who allow the ride-alongs should be immune from being sued. A companion lawsuit filed against the news media for its role was not docketed by the court and will not be argued today.

Nonetheless the news media are nervous, and not only because it will be the first time in years that the court will scrutinize a newsgathering practice. But they worry that if the Supreme Court adopts a flat ban against such ride-alongs, it will encourage police to shut the media out in a variety of other contexts.

Such a ban, the news media agreed in a brief written by Lee Levine of Washington, D.C., “will have one certain consequence: To avoid the risk that they will be deemed to have violated the Fourth Amendment, law enforcement and other public officials performing their duties will simply bar the public, through the news media, from observing their activities in a variety of settings.” And that, the brief continues, “will eliminate a class of news reporting that has contributed meaningfully to public scrutiny of official conduct.”

The media are mindful also of last month’s ruling by a New York federal judge against a “perp walk,” another longstanding tradition in which police parade a suspect in front of cameras. The judge in the case Lauro v. New York said the practice served no legitimate law enforcement purpose.

The cases before the court today are Hanlon v. Berger and Wilson v. Layne. The Hanlon case involves a 1993 raid on the Montana ranch of Paul and Erma Berger.

The Bergers sued the U.S. and Fish and Wildlife agents who invited CNN along on the search for allegedly poisoned eagles. The agents were fitted with CNN cameras and microphones.

The Bergers also sued CNN, and in that case the 9th U.S. Circuit Court of Appeals determined that the circumstances of the raid had transformed CNN into a “state actor.” But that case has been inexplicably held by the Supreme Court and not acted on.

In the other case, the Rockville, Md., home of Charles and Geraldine Wilson was the target of a search for a fugitive by federal marshals and local police in 1992. A Washington Post photographer accompanied the agents. The fugitive was not found and no photos were ever used. But the Wilsons, like the Bergers, sued the officers claiming the police had violated their constitutional rights.

Police officials argue in the cases that the ride-alongs serve the legitimate goal of deterrence by publicizing arrests. The news media agree.

CNN filed a brief in the Berger case, even though it is not a direct party in the case the court will hear. In the brief, CNN’s lawyer P. Cameron DeVore of Seattle argued, “In direct conflict with the Bergers’ asserted privacy interest in keeping shrouded the execution of the warrants are the significant public interests served by the agents’ grant of permission to the news media: enabling public oversight of law enforcement, deterring crime, and curbing potential police misconduct and danger to police.”

Curbing possible police misconduct sounds like an argument that would win the support of the American Civil Liberties Union, which often criticizes police abuse. But in this case, the ACLU is siding not with the press or the police but the targets of the police-media spotlight.

“Frankly, the press is out to lunch on this issue,” said the ACLU’s Art Spitzer. The idea that ride-alongs can be justified as part of the media’s watchdog function is unsupportable, he says.

“The press access in these cases is purely at the grace of the police, so they are not playing an independent role,” Spitzer said. “The police are not going to invite the media along when they go looking for a cop-killer.”

The ACLU does not oppose ride-alongs in which the media accompany police in public places or areas where the general public could also be, Spitzer says.

“We draw the line at the front door of the house,” said Richard Willard, who wrote the brief on behalf of the Wilsons.

Also lining up against the press and police is the National Association of Criminal Defense Lawyers. “The news media… in headlong pursuit of their alleged First Amendment prerogatives to use the auspices of government law enforcement authorities to invade the privacy of individuals and violate their Fourth (and Fifth) Amendment rights, barely acknowledge the critical Fourth Amendment principles at stake,” said New York lawyer Joshua Dratel in the NACDL brief.

Predicting the outcome of the cases is difficult. Typically, the conservative Supreme Court gives law enforcement officials wide berth and rules against the interests of criminal defendants. But once every year or so, even this court usually balks at some police practice that oversteps constitutional bounds. Whether ride-alongs are viewed that way may become clear from the tenor of the oral arguments today. A decision is not expected, however, until June.

Tony Mauro covers the Supreme Court for USA TODAY and is a legal correspondent for the First Amendment Center.