89 F.3d 1350

July 19, 1996, Filed

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.

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, and that the evidence did not support the judgment against her.

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 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.(fn2)  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 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 10 1 Memorial Drive on 8/5/94 at approximately 13 10 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.

2. The search warrant application verified the following facts:

On [Friday,] 8/5/94 at approximately 13 10 hours, Julia A. Flege, W/F, 7/14/62, was abducted from the Liberty Memorial Mall, 10 1 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[J 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.

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 McCaskill for $ 1000 liquidated damages under the Privacy Protection Act.


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...

As an affirmative defense, McCaskill asserted that the exceptions at 42 U.S. C. @@ 2000aa(bX2) and (3) applied, barring Citicasters from recovering under the Act. Noting that Detective Parkees 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.

We review the district court's interpretation of the Privacy Protection Act de novo. There is no mention in the Privacy Protection Act of any requirement that search warrant applications describe exceptions to the Act, 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.

We find no ambiguity in the Privacy Protection Act. 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, it instead created a private cause of action as the exclusive 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.

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. 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.

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.

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. Under the Act, the government may not obtain a search warrant but must instead rely upon a subpoena duces tecurn 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.

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.

The Privacy Protection Act was prompted by the Supreme Court's decision in Zurcher v. Stanford Daily, 436 U.S. 547 (1978). In Zurcher, the Stanford Daily, a student newspaper, had published articles and photographs of a demonstration at which several police officers were assaulted. As part of its investigation, the district attorney obtained a search warrant and searched the newspaper's offices for additional photographs of the incident. 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 tecurn 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." The court of appeals affirmed per curiam, adopting the opinion of the district court. 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.

At the close of the majority opinion in Zurcher, the Court stated, "of 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, . . ." Congress took the "invitation" of the Court and enacted the Privacy Protection Act of 1980.

Congress stated that the Privacy Protection Act responded to the Zurcher decision. 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. Thus the legislative reaction to Zurcher focused on the substantive standard rather than the undisputed procedural framework. The 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. 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.

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 intended to be read in conjunction with the Fourth Amendment. 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. 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." The legislative intent was to build upon the Fourth Amendment.

In the warrant process, it is the 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.
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.

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