Legally, it’s as if the warrant never existed
Two weeks shy of executing a broad search warrant on the home and office of freelance journalist Bryan Carmody, San Francisco Police Chief William Scott stood before cameras and a podium filled with microphones from news outlets across the Bay Area and deemed the reporter to be a criminal co-conspirator who “crossed a line.”
The comments were made as police sought to unravel who leaked a sensitive police document and photographs to Carmody, related to the death of San Francisco Public Defender Jeff Adachi — material that, at the time they were leaked, had not been previously made public and would have been kept under tight guard within the watchful eyes of the police department tasked with investigating how and why Adachi died.
But it did leak. A San Francisco officer is presumed to have misappropriated it — “stolen” it, in fact, to use the word spelled out in newly-unsealed court records — and given it to Carmody for reasons unknown. Carmody then turned around and sold it to local reporters covering Adachi’s death, including a well-known investigative journalist with a following.
That triggered a split in the investigation of Adachi’s death: Now, officers were not just tasked with finding out how Adachi died, but also who leaked a sensitive cache of police documents to Carmody and the public.
In April, they came for Carmody.
What remains unclear is when the San Francisco Police Department determined Carmody was not merely a conduit of information — as journalists, including “stringers,”or freelancers paid to gather news material for other outlets, are — but “crossed the line” and became a criminal co-conspirator. But in May, the agency sought and successfully obtained a search warrant that allowed officers to secretly collect call and text message data from a phone Carmody used in connection with his work.
Last Thursday, the judge who signed the warrant in May said it should never have been issued, according to a transcript of a court hearing obtained by the California Globe. Though police eventually defended that warrant and a series of others that allowed them to wake Carmody up in the middle of the night, seize dozens of electronic devices and ultimately shut down his business, they never proved that Carmody crossed the line into criminality.
“Mr. Carmody is not a criminal defendant as we often see in motions to quash,” San Francisco Superior Court Judge Rochelle East said. “He is not a criminal defendant.”
The judge ultimately granted Carmody and his legal team their motion to quash last Thursday, rendering the search warrant in that case moot. Legally, it’s as if the warrant never existed — the judge also directed police not to use evidence obtained through it and destroy evidence where feasible — but for the innocent Carmody, the series of legal issues has taken a toll on his work.
In an interview with the California Globe shortly after the raid on his home and office, Carmody said police seized news-gathering equipment — including computers, phones, cameras, notes, files and other things — worth thousands of dollars.
“They probably took $20,000, maybe $30,000 worth of equipment from me,” Carmody said, an estimate repeated by his lawyer in legal filings with the court. “God knows when I’ll get it back.”
He eventually did, but not without a protracted legal fight, during which Carmody was unable to work. He turned to GoFundMe in an effort to raise money; after widespread media attention, he managed to raise $18,000.
Police immediately acknowledged Carmody’s request to have his equipment returned, he said in a May interview. But the request did not come without a legal fight; ultimately, police gave Carmody his equipment back after a judge ordered the agency to do so.
The agency also put up a fight when Carmody and his legal team sought to have the questionable warrant unsealed. On Thursday, Judge East ordered police to make the warrant public, except for a small paragraph that apparently explained how investigators were led to Carmody.
A Digital ‘Confidential Informant?’
In media reports since the raid on Carmody’s home, San Francisco police officials said their use of a confidential informant led them to suspect the journalist as a co-conspirator in distributing the purported stolen document. But an affidavit attached to an application in support of the warrant on Carmody’s phone suggested the confidential informant might actually be a routine piece of police equipment.
“The death investigation report was written by an officer from the Central Police district,” the affidavit said. The officer who wrote the affidavit said he “reviewed body worn camera footage from the officers who worked at Central Police station around the time of the death investigation.”
The paragraph that followed is redacted, and only the police department, the judge at Thursday’s hearing and her court reporter knows for sure what it says (in a transcript obtained by the California Globe of Thursday’s hearing, the judge did say the redacted paragraph starts with the word “at” and ends with the word “number”). But if a judge allowed police to conceal agency-issued equipment as a confidential informant in this case, it would not be without precedent.
In 2014, at the height of public concerns over mass surveillance technology, reporters began tracking cellphone surveillance devices that, when deployed, gathered mass quantities of data from the phones of unsuspecting individuals. In many cases, the devices — known colloquially as a “stingray” — would capture phone metadata from both criminal suspects and innocent members of the public who happened to be within a signal’s footprint.
Harris Corporation, the Florida-based manufacturer of the trademark “stingray” and other devices, required local law enforcement agencies to sign non-disclosure agreements before leasing the interception devices to them. In turn, police officers rarely sought warrants when they used the devices. In criminal trials, prosecutors sometimes said officers obtained evidence through a “confidential informant,” suggesting it was obtained from a person when it was actually obtained from equipment.
The American Civil Liberties Union eventually obtained documents from a Florida law enforcement agency that blew the practice wide open: In an email chain between officers at the Sarasota and North Port police departments, an officer wrote that “we simply refer to the assistance as ‘received information from a confidential source’…” when officers are deposed or questioned in cases where cellphone surveillance devices were secretly used.
Whether police investigating Carmody took the same approach could be learned in less than a month’s time: the reporter and his legal team will be back in court on July 24 to challenge several other warrants issued against him.
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