Stanford Daily v. Zurcher

• Decision Date: 05 October 1972
• Docket Number: No. C-71 912 REP.,C-71 912 REP.
• Citation: 353 F. Supp. 124
• Parties: The STANFORD DAILY et al., Plaintiffs, v. James ZURCHER, individually and as Chief of Police of the City of Palo Alto, County of Santa Clara, State of California, et al., Defendants.
• Court: U.S. District Court — Northern District of California

353 F. Supp. 124

The STANFORD DAILY et al., Plaintiffs, v. James ZURCHER, individually and as Chief of Police of the City of Palo Alto, County of Santa Clara, State of California, et al., Defendants.

No. C-71 912 REP.

United States District Court, N. D. California.

October 5, 1972.

Anthony G. Amsterdam, Stanford, Cal., Jerome B. Falk, Jr., Robert H. Mnookin, Howard, Prim, Smith, Rice & Down, San Francisco, Cal., for plaintiffs.

Peter G. Stone, City Atty., City of Palo Alto, Palo Alto, Cal., Melville A. Toff, Mt. View, Cal., for defendants Zurcher, Bonander, Deisinger, Martin and Peardon.

Wm. M. Siegel, County Counsel, Santa Clara County, Selby Brown, Jr., Chief Asst. County Counsel, San Jose, Cal., for defendants Phelps, Bergna and Brown.

MEMORANDUM AND ORDER

PECKHAM, District Judge.

This is an action pursuant to 42 U.S. C. § 1983 to declare illegal and unconstitutional a search on April 12, 1971 of the offices of the Stanford Daily, the primary newspaper on the Stanford University campus. In addition to declaratory relief plaintiffs, the Stanford Daily and various members of its staff further pray for an injunction against defendants, various state officials restraining them and anyone acting under their direction

". . . from seeking the issuance of, issuing, or executing any warrant to search the office of THE STANFORD DAILY, or in the office or residence of any of its staff members for any photographs, negatives, films, reporters' notes, documents or any other material, whether published or unpublished, taken, received, developed or maintained in the course of efforts to gather news, by any person who is a staff member of THE STANFORD DAILY."

Jurisdiction is founded on 28 U.S.C. § 1343(3).

Defendants, in their answer to the complaint contend that the April 12 search was lawful in all respects. In addition defendants Bergna and Brown, District Attorney and a deputy district attorney for Santa Clara County, respectively, state as follows:

". . . defendant Bergna, in his official capacity, and other persons in his office, including defendant Brown, in their official capacity, and that defendant magistrate in his official capacity, will participate in the seeking of a search warrant and in the issuance of the same, in good faith and in accordance with the applicable provisions of the laws of the State of California, whenever there is reasonable cause to believe that there exists property or things to be seized which consist of any item or constitute any evidence which tends to show a felony has been committed, or tends to show that a particular person has committed a felony; . . ."

(Paragraph 9 of Answer for defendants Phelps, Bergna, and Brown).

The plaintiffs have moved for summary judgment requesting the relief prayed for in the complaint. For purposes of that motion presently before the Court the facts are not in dispute.¹

On Friday, April 9, 1971, members of the Palo Alto Police Department, as well as the Santa Clara County Sheriff's Department, were called to the Stanford University Hospital to remove a large group of demonstrators. After several futile attempts to have the demonstrators leave peacefully, the police forced their way through the barricaded offices held by the demonstrators. While many of the police entered through a set of doors on the west side, the demonstrators apparently charged nine officers stationed on the east side. All nine officers were injured, some seriously, and the hospital area was severely damaged. Some furniture and partitions were destroyed, and telephones were ripped out of the walls.

Most of the photographers, reporters, and by-standers were located at the west end, so that only two of the demonstrators who assaulted the police could be identified.

On Sunday, April 11, 1971, photographs appeared in a special edition of the Stanford Daily, which indicated that photographers connected with the Daily had been at the east end of the hospital during the incident in question.

On Monday, April 12, 1971, based upon the affidavit of Officer Richard Peardon of the Palo Alto Police Department, Deputy District Attorney Craig Brown of the Santa Clara County District Attorney's office, obtained a warrant to "make immediate search" of the premises of the Stanford Daily for:

1) Negatives of films taken at Stanford University Hospital on the evening of April 9, 1971, showing the Sit-In at the Hospital and following events.

2) The film used while taking pictures at Stanford University Hospital on April 9, 1971, showing the Sit-In and following events.

3) Any pictures which display the events and occurrences at Stanford University Hospital on the evening of April 9, 1971.

(Exhibit A of the complaint). Defendants have submitted no affidavits, nor have they asserted, that any member of the Stanford Daily was suspected of any unlawful participation in the April 9th incident.

The search warrant was executed at approximately 5:45 P.M. that same day by four members of the Palo Alto Police Department. (A member of the Stanford University Police Force accompanied them but did not participate in the search). Three of the officers conducted the search, which lasted approximately fifteen minutes.

The search was quite thorough. The officers examined filing cabinets, baskets, and unlocked desk drawers, in executing the warrant. (See affidavits of Officers Dersinger, Martin, and Bonander). According to the plaintiffs' affidavits the desks contained, and the officers were in a position to see notes taken by reporters in the course of interviews which contained information given in confidence and on the understanding that the name of the source would not be disclosed. (See affidavit of Fred Mann at paragraph 25; affidavit of Don Tollefson at paragraph 6.) The plaintiffs assert that the officers saw, scanned or read business and personal correspondence of the Daily and members of its staff. (See p. 2 of plaintiff's brief.) The defendants say that even though the photographs were mixed among various notes and letters, they did not read or even scan the materials. As far as the materials described in the search warrant were concerned, the officers apparently found only the photographs that had been published on April 11th, and no materials were removed from the offices.

It should also be pointed out that a check of the Santa Clara County Clerk's records shows that the Santa Clara County Grand Jury—a body before which a subpoena duces tecum is returnable —met on Monday, April 12, 1971, at 7:30 P.M., two hours after the warrant executed. (Actually, the records reveal that the Grand Jury met at 6:00 o'clock P.M. to discuss administrative matters.)

The basic question in this case is whether third parties—those not suspected of a crime—are entitled to the same, if not greater, protection under the Fourth Amendment than those suspected of a crime. More specifically, are law enforcement agencies required to explore the subpoena duces tecum alternative before obtaining a search warrant against third parties for materials in their possession? For the reasons set forth below the Court holds that third parties are entitled to greater protection, particularly when First Amendment interests are involved. It is the Court's belief that 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 tecum 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.

I

At the outset, it should be noted that very few cases discuss Fourth Amendment protection of third parties, as distinguished from known suspects, and neither the Court nor the parties have come across any case which discusses the problem of when law enforcement agencies must use a subpoena duces tecum rather than a search warrant. Discussion of third party searches in the case law is confined almost exclusively to the problem of standing to challenge the legality of the search. See, e.g., Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). To be sure, searches and seizures against third parties have taken place, but their relative infrequency is perhaps best reflected in the paucity of cases wherein the third party has himself challenged the search. One can offer several explanations as to why there are no cases directly on point here, but no doubt the basic reason is that investigative agencies of government have utilized the subpoena duces tecum to achieve the same end: the examination of certain materials.

On the Fourth Amendment rights of third parties generally, plaintiffs cite three cases dealing with warrantless searches of third parties; Newberry v. Carpenter, 107 Mich. 567, 65 N.W. 530 (1895); Owens v. Way, 141 Ga. 796, 82 S.E. 132 (Ga.Sup.Crt. 1914); Commodity Mfg. Co. v. Moore, 198 N.Y.S. 45 (Sup., 1923). Although Newberry could be read to permit a third party search with a warrant, Owens and Commodity both indicate that a search of a third party even with a warrant will not satisfy the requirements of the Fourth Amendment. In Owens v. Way, the police arrested one Edwards for the illegal sale of intoxicating liquors, and simultaneously seized a locked safe which belonged to Way, "on the ground that the safe, if open, would show that it contained intoxicating liquor which the police searched to use as evidence in the trial of Edwards." 82 S.E., at 133. In holding that the seizure was illegal the Supreme Court of Georgia declared:

"The power of an arresting officer to take the property of the defendant, to be used as evidence of the crime charged against him in the warrant, is quite different from the taking of the property of third persons by virtue of no other process save that of the warrant against the accused. The constitutional protection against unreasonable seizure of property would go for

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