SENNETT v. USA

Decision Date12 April 2011
Docket NumberCase No. 1:10cv1055
CourtU.S. District Court — Eastern District of Virginia
PartiesLAURA SENNETT, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

OPINION TEXT STARTS HERE

MEMORANDUM OPINION

At issue on the government's motion to dismiss, or in the alternative for summary judgment, is whether the ''suspect exception" to the Privacy Protection Act of 1980 ("PPA"), 42 U.S.C. §§ 2000aa(a)(l), (b)(1), bars plaintiff's claim that federal law enforcement officers violated her PPA rights by searching her home and seizing photographs and photographic equipment. The PPA's "suspect exception" applies only where government officials have probable cause to believe that the target of the search has committed an offense, and the materials seized are related to that offense. Here, the record evidence establishes that there was probable cause to believe that plaintiff was involved in the vandalism of the Four Seasons Hotel on April 12, 2008, and the subsequent search of plaintiff's home related to the investigation of that incident. Accordingly, the PPA's '"suspect exception" applies, and summary judgment must be granted in favor of the government.

I.1

Plaintiff, Laura Sennett, a citizen of Virginia, claims to be a photojournalist specializing in the coverage of demonstrations, protests, and grassroots activism. Sennett alleges that she has published photographs and commentary on her blog and website, and that her photographs have appeared in prominent media outlets, including the Toronto Free Press, Cable News Network ("CNN"), The History Channel, and Radar Magazine. Sennett further alleges that she has regularly used the pseudonym, "Isis," when publishing photographs.

On April 11, 2008, Sennett received a phone call with a tip that individuals were planning a demonstration against the International Monetary Fund ("IMF"). Sennett's source informed her that the demonstration would occur in the early morning hours of April 12, 2008, at the Four Seasons Hotel in Washington, D.C., where at least some of the delegates participating in the IMF's annual spring meeting were lodged. Sennett claims she did not know that any crimes were to be committed at the demonstration.2

At approximately 2:30 a.m. on April 12, 2008, a group of approximately sixteen individuals—some of whom were wearing masks, black hooded jackets, and sunglasses to conceal their identities—approached the main entrance of the Four Seasons Hotel. Many of these individuals entered the hotel lobby and began throwing firecrackers and other smoke generating pyrotechnic devices. After activating the smoke devices, the vandals retrieved paint-filled balloons from their backpacks and threw them at various sculptures and statues located in the lobby. As they ran from the lobby, one of the vandals shattered a large glass window with an unknown object. All of the vandals fled the area on foot or bicycle. The hotel management's staff estimated the damage at more than $200,000.

The hotel's security cameras show that a white female, later identified as Sennett, arrived at the hotel within seconds of the group. Like others in the group of vandals, Sennett was dressed in dark clothing. She also wore a light-colored beret and black combat boots. Also similar to many of the vandals, Sennett carried a backpack. While most of the vandals entered the hotel lobby, Sennett and some members of the group remained outside of the hotel's front entrance. There, Sennett photographed (or recorded) the incident as it unfolded with a small, handheld camera. Sennett did not display any press credentials nor did she carry any photographic equipment other than the small, handheld camera. After vandals employed smoke-generating devices, they emerged from the building and began to run from the area. Sennett fled from the hotel at the same time and, initially, in the same general direction as the group.3

The incident at the Four Seasons Hotel was investigated by Task Force Officer ("TFO") Vincent Antignano, a Detective with the Prince William County Police Department and a Special Deputy United States Marshal on the Federal Bureau of Investigation's Joint Terrorism Task Force ("FBI JTTF"). During the course of his investigation, TFO Antignano reviewed the Four Seasons Hotel's security camera footage, which revealed that an unidentified female—wearing a light-colored beret and combat boots—photographed the incident as it unfolded and then fled from the hotel. A reliable source advised TFO Antignano that the unidentified female in the security camera video was frequently seen at demonstrations in the Washington, D.C. area. Using open source websites such as Google and YouTube, the unidentified female was observed on videotape at two other demonstrations in Washington, D.C. Another reliable source advised TFO Antignano that the unidentified female went by the name "Isis," and the source provided TFO Antignano with her cellphone number. Using this information, TFO Antignano determined that the unidentified female in the security camera video was Sennett, and through physical surveillance, TFO Antignano was able to identify Sennett's residence.

On September 22, 2008, TFO Antignano procured a search warrant for Sennett's residence from the Arlington County Circuit Court. On the basis of TFO Antignano's sworn affidavit, which recounted the facts from the security camera footage and TFO Antignano's subsequent investigation, the magistrate concluded that there was probable cause to believe that evidence relating to the following three offenses would be found at Sennett's residence: (1) Va. Code § 18.2-77 (Burning or destroying dwelling house, etc.); (2) Va. Code § 18.2-85 (Manufacture, possession, use, etc., of fire bombs or explosive materials or devices; penalties); and Va. Code § 18.2-137 (Injuring, etc., any property, monument, etc.).4 The warrant authorized law enforcement officers to search Sennett's residence and person for computers, digital media, clothing, smoke generating devices, and other items relating to the April 12 Four Seasons incident.

On September 23, 2008, approximately a dozen armed law enforcement officers, including TFO Antignano, executed the search warrant. The officers allegedly seized about twenty-six items, including an external hard drive containing more than 7,000 photographs, two computers, several cameras, and several camera memory cards. Plaintiff asserts that these items constituted her entire stock of digital photographs, all of her professional work product, and nearly all of the equipment she needed to maintain her profession as a photojournalist. During the search, at least three officers, including TFO Antignano, allegedly told Sennett that they knew she was a photojournalist. Sennett alleges that one of the officers told her that he had seen photographs she had taken of a protest of the Republican National Convention, which were published in the media.

After the search, law enforcement officers analyzed Sennett's computer equipment. This analysis revealed that Sennett corresponded with several extremist suspects in the Washington, D.C. area, but law enforcement officers were unable to locate any photographs of the April 12 Four Seasons incident. On March 11, 2010, the FBI filed a memorandum requesting permission to close the Sennett investigation, noting that an Assistant United States Attorney had "reviewed the circumstances of the case and indicated that the USAO [United States Attorney's Office] would not be pursuing charges against Laura Sennett because there was no evidence to date to suggest that Sennett participated in the vandalism." See Joint Mot. for Leave to File Supplement to Summary Judgment Record (Doc. No. 88), Ex. A.

Sennett initially filed suit on September 21,2009, alleging violations of the PPA and 42 U.S.C. § 1983. See Sennett v. U.S. Dep't of Justice, et al., No. 1:09cvl063 (E.D. Va. Sept. 21, 2009) (Complaint). Sennett's complaint named the following defendants: (i) U.S. Department of Justice; (ii) U.S. Attorney General Eric Holder; (iii) FBI JTTF; (iv) Prince William County; (v) Prince William County Police Department (vi) Arlington County; (vii) Arlington County Police Department; (viii) TFO Antignano; and (ix) Arlington County Detective Jason Bryk. Id. In an amended complaint filed on January 13, 2010, Sennett added ten unidentified law enforcement agents as defendants. See Sennett v. U.S. Dep 7 of Justice, et al, No. 1:09cvl063 (E.D. Va. Jan. 13, 2010) (Amended Complaint). On February 22, 2010, the parties filed a stipulation of dismissal without prejudice as to Prince William County Police Department and Arlington County Police Department. See Sennett v. U.S. Dep't of Justice, et al., No. 1:09cvl063 (E.D. Va. Feb. 22, 2010) (Stipulation of Dismissal). A second stipulation of dismissal without prejudice was filed on March 24, 2010 as to Prince William County, Arlington County, TFO Antignano, and Detective Bryk. See Sennett v. U.S. Dep't of Justice, et al., No. 1:09cvl063 (E.D. Va. Mar. 24,2010) (Stipulation of Dismissal). By Order dated March 26, 2010, the case was dismissed without prejudice as to the remaining defendants—U.S. Department of Justice, U.S. Attorney General Eric Holder, and FBI JTTF—because Sennett had failed to perfect service on those defendants within 120 days of filing her complaint, pursuant to Rule 4(m), Fed. R. Civ. P. See Sennett v. U.S. Dep't of Justice, et al., No. 1:09cv l063 (E.D. Va. Mar. 26, 2010) (Order).

Sennett, proceeding pro se, filed a second suit on September 22, 2010, alleging violations of the PPA and the Fourth Amendment. See Sennett v. United States, 1:10cv l055 (E.D. Va. Sept. 22, 2010) (Complaint). Sennett named the following defendants in her complaint: (i) the United States of America; (ii) U.S. Attorney General Eric Holder; (iii) TFO Antignano; (iv) Detective Bryk; (v) Arlington County; and (vi) Prince William County. Id. Counsel entered an...

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