United States v. Sanusi
813 F. Supp. 149, 1992 WL 427510 (1992)
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Rule of Law:
The First Amendment's qualified newsgathering privilege does not shield the press from producing non-confidential work product subpoenaed by a criminal defendant when the material is highly relevant and critical to the defense, unobtainable from other sources, and was gathered while the press was engaged in intrusive and potentially illegal conduct.
Facts:
- A U.S. Magistrate Judge issued a valid warrant authorizing U.S. Secret Service agents to search Babatunde Ayeni's apartment for evidence of credit card fraud.
- Secret Service agents executed the warrant at Ayeni's apartment while his wife and child were present.
- While the search was in progress, additional agents arrived with a CBS News camera crew, who were invited by the Secret Service to film the search.
- The CBS crew entered the apartment without the consent of Ayeni's wife and filmed for approximately twenty minutes, capturing footage of the agents searching through personal belongings.
- Ayeni's wife repeatedly expressed her objection to being filmed, covering her face and attempting to shield her child from the camera.
- One agent wore a wireless microphone for CBS, explaining the investigation and implying Ayeni's guilt on camera.
- The search of the apartment did not uncover any evidence of credit-card fraud; the only item seized was a family photograph for identification.
Procedural Posture:
- The government indicted Babatunde Ayeni in the U.S. District Court for conspiracy to commit credit-card fraud.
- Ayeni learned of the CBS videotape's existence from the U.S. Attorney and requested a copy from CBS, which refused.
- Ayeni served a subpoena on CBS to produce the videotape.
- CBS filed a motion in the U.S. District Court to quash the subpoena, asserting a First Amendment newsgathering privilege.
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Issue:
Does the First Amendment newsgathering privilege shield a media organization from complying with a criminal defendant's subpoena for a videotape of a government search of the defendant's home, when that material is potentially exculpatory?
Opinions:
Majority - Weinstein, District Judge
No. The First Amendment newsgathering privilege does not shield CBS from complying with the subpoena because the privilege is qualified and must yield to the defendant's constitutional right to a fair trial, especially given the circumstances under which the tape was created. The defendant has satisfied the three-part test for overcoming the privilege: the tape is highly material and relevant, necessary for the defense, and not obtainable from other sources. The court reasoned that the tape's value to the defense is extremely high, as it graphically demonstrates the government's failure to find any incriminating evidence after an exhaustive search, which could be powerful exculpatory evidence for a jury. Furthermore, the privilege operates weakly here because CBS was not a passive observer but an active participant in an intrusive search, arguably trespassing and acting under color of law in a manner that violated the privacy principles of the Fourth Amendment. The court held that the press cannot use the First Amendment as a shield to justify illegal conduct or to withhold the fruits of that conduct from the very person whose privacy was violated.
Analysis:
This case significantly clarifies the limits of the First Amendment newsgathering privilege, establishing that it is substantially weakened when journalists participate in or accompany law enforcement on activities that intrude upon the sanctity of a private home. The decision emphasizes that the privilege is not a license for the press to engage in tortious or illegal acts, such as trespass, under the guise of newsgathering. By linking the weakness of the privilege to the potential Fourth Amendment violations inherent in media ride-alongs, the court signals that media organizations may not be able to protect work product gathered under such circumstances, particularly when it is sought by a criminal defendant for exculpatory purposes. This ruling creates a powerful check on collaborations between law enforcement and the media during searches of private property.
