Ayeni v. CBS inc.

• Decision Date: 07 April 1994
• Docket Number: No. CV 93-0957.,CV 93-0957.
• Citation: 848 F. Supp. 362
• Parties: Tawa AYENI and Kayode Ayeni, a minor, by Tawa Ayeni, his mother and natural guardian, Plaintiffs, v. CBS INC., a New York Corporation, Meade R. Jorgensen, James Mottola, Seven Unknown Special Agents of the United States Secret Service and Two Unknown Postal Inspectors of the United States Postal Service, Defendants.
• Court: U.S. District Court — Eastern District of New York

848 F. Supp. 362

Tawa AYENI and Kayode Ayeni, a minor, by Tawa Ayeni, his mother and natural guardian, Plaintiffs, v. CBS INC., a New York Corporation, Meade R. Jorgensen, James Mottola, Seven Unknown Special Agents of the United States Secret Service and Two Unknown Postal Inspectors of the United States Postal Service, Defendants.

No. CV 93-0957.

United States District Court, E.D. New York.

April 7, 1994.

COPYRIGHT MATERIAL OMITTED

Rossbacher & Associates by Henry H. Rossbacher, Tracy W. Young, Nanci W. Nishimura, and Karen A. Widess, Los Angeles, CA, Harry C. Batchelder, New York City, for plaintiff.

Douglas P. Jacobs, Madeleine Schachter, New York City, for defendants CBS Inc. and Meade R. Jorgensen.

Frank W. Hunger, Asst. Atty. Gen., Helene M. Goldberg, Director, Torts Branch, Stephen F. McGraw, Trial Atty., Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, DC, for defendant James Mottola.

AMENDED MEMORANDUM

WEINSTEIN, District Judge.

This case raises grave issues of the right to privacy in the home, free from the intruding eye and ear of a private broadcaster's television camera when: 1) access of the television crew was compelled by government officials without consent of the householder; 2) the officials had themselves obtained consentless entry, ostensibly by means of a search warrant; 3) the officials were not being aided in their search by the television crew; 4) the television crew was present only for proprietary reasons — i.e. potential profit to the television broadcaster; and 5) the television crew took from the home for the purpose of broadcasting them to the world at large, pictures of intimate secrets of the household, including sequences of a cowering mother and child resisting the videotaping.

The government and the broadcaster do not now contest the claim that serious psychic harm was suffered by the mother and child. Rather, they argue that this action against United States Treasury Agent, James Mottola, who allegedly arranged for the CBS crew's entry; CBS Inc., the broadcaster; and Meade R. Jorgensen, the CBS producer in charge of the crew, must be dismissed on the ground that they are immune from suit.

For the reasons indicated below this motion is denied. A prima facie gross violation of plaintiffs' clear constitutional rights has been pleaded against the government official. At the very least, plaintiffs are entitled to discovery in order to determine whether there was any justification for this intrusion of CBS into their home with the aid of a government official. The motion of CBS must be denied for this reason and, in addition, because a private broadcaster cannot cloak itself in immunity of a government official under the facts of this case.

I. Facts

The complaint alleges:

On March 5, 1992, Agent Mottola obtained a search warrant based upon information provided by a confidential informant regarding Mr. Babatunde Ayeni's involvement in a credit card fraud operation. He is plaintiff Tawa Ayeni's husband and plaintiff Kayode Ayeni's father. The warrant authorized Agent Mottola and other government agents to enter the plaintiffs' apartment to search for:

quantities of fraudulently obtained credit cards, lists of names and account numbers for such credit cards, credit card receipts, credit card applications, false identification documents, cash, correspondence, checkbooks, bank records, and U.S. Postal Service change of address form.

(Am.Compl.P. 24.)

Neither Mrs. Ayeni nor Kayode was under investigation for any illegal activity. At approximately 6:00 p.m. on March 5, 1992, six agents (four or five secret service agents and one or two postal inspectors) arrived at the Ayenis' three bedroom residence. Mrs. Ayeni and her son were home alone. The agents announced that they were police conducting an investigation and wanted to ask questions. When Mrs. Ayeni, clothed only in a dressing gown, cracked opened the door, the agents pushed into the apartment.

At approximately 8:15 p.m., Agent Mottola entered the apartment with three additional agents and a CBS news crew, including Meade R. Jorgensen, a camera operator, and a sound technician. Jorgensen is employed by CBS News as a producer of "Street Stories," a weekly television news magazine. The crew was never identified as CBS employees. "Mrs. Ayeni believed that the CBS camera crew and defendant Jorgensen were part of the team executing the warrant." (Am.Compl.P. 29.)

Mrs. Ayeni objected to the presence of the camera. She asked why the men were videotaping. Kayode sat beside his mother on the couch crying. Mrs. Ayeni repeatedly requested that her picture not be taken and attempted to cover her face and that of the boy.

The CBS crew followed and taped the agents as they searched the apartment and the Ayeni's belongings. They took close-up pictures of the interiors of closets, personal letters, family pictures, and even of a homey maxim on the wall. (Am.Compl.P. 35 and videotape.) Throughout the search, Jorgensen questioned an agent wearing a microphone. In the foyer of the Ayeni apartment, the CBS crew interviewed this agent to determine the modus operandi of people who commit credit card frauds and the tools of their trade. During this sequence of the tape, the agent "implied the complicity of other residents of the Ayeni apartment." (Am.Compl.P. 37.)

While CBS taped her, the agents questioned Mrs. Ayeni regarding her husband's whereabouts and objects in the apartment. The only material seized from the apartment was a family photograph of the Ayenis, also taped by CBS.

After about 20 minutes the CBS crew left the premises with several agents. It videotaped one of the agents expressing disappointment that no evidence of credit card fraud had been found.

Plaintiffs contend that CBS and Jorgensen had an "agreement" with the Secret Service to enter the apartment. (Am.Compl.P. 30.) They assert that "defendants Jorgensen and CBS, individually and through their agents, servants and employees, were acting with the implied permission and consent of the United States Secret Service, Department of the Treasury and United States Postal Service." (Am.Compl.P. 22.) The complaint states:

CBS also claims to have accompanied the Secret Service furthering the execution of the search in plaintiffs' apartment under the imprimatur of the official warrant and through the auspices of its "confidential informant," one of the Unknown Special Agents who participated in the search of the Ayeni apartment.

(Am.Compl.P. 31.)

II. Law

A. Qualified Immunity of Agent Mottola.

Government officials performing a discretionary function are immune from liability from civil damages unless their conduct violates "clearly established statutory or constitutional rights of which a reasonable person should have known," Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), or if it was objectively reasonable for the officials to believe that their acts did not violate those clearly established rights. Finnegan v. Fountain, 915 F.2d 817, 823 (2d Cir.1990).

Inquiry into whether a right is clearly established cannot stop at a generalized level of fact. Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). An evaluation of the state of the law at the time of the official action in light of the particular factual circumstances of the case is required. Id. "The `contours' of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.... In light of the preexisting law the unlawfulness must be apparent." Id.

To determine whether a right was clearly established at the time defendant Mottola acted, the court must consider:

1) whether the right in question was defined with "reasonable specificity"; 2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and 3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful.

Soares v. Connecticut, 8 F.3d 917, 922 (2d Cir.1993).

To determine whether an agent is immune from suit, the court must determine whether, at the time of the search, it was clearly established that his actions constituted an unreasonable search and seizure under the Fourth Amendment. The Fourth Amendment to the United States Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment protects the right of private citizens to be free from unreasonable intrusions by government officials into areas where they have a reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967). The home is the clearest example of such an area. The amendment has been interpreted broadly to place a number of restrictions on the government's ability to enter the home. United States v. Sanusi, 813 F.Supp. 149, 156-59 (E.D.N.Y.1992). Protections of the Constitution not only guarantee that the government shall not intrude into the privacy of a home without good cause, Steagald v. United States, 451 U.S. 204, 212-16, 101 S.Ct. 1642, 1647-50, 68 L.Ed.2d 38 (1981); Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639 (1980), but it also ensures that when the government does enter that the interruption of privacy is minimized. Marron v. United States, 275 U.S. 192, 195, 48 S.Ct. 74, 75, 72 L.Ed. 231 (1927); Dale v. Bartels, 732 F.2d 278, 284-85 (2d Cir.1984).

The search must be closely tailored to the purpose of the warrant. For example, it may not be unreasonably destructive of property. See, e.g., United States v....