Media Ride-Alongs.

Fourth Amendment Constraints

The American public recently awoke to the news that INS agents had ended a standoff with the relatives of young Elian Gonzalez by forcibly entering the relatives' Miami home under the authority of a federal search warrant and seizing the boy. Within hours of the operation, poignant pictures of the seizure appeared on televisions and front pages of newspapers across the country. Probably the most memorable photograph is one depicting a terrified young Elian, cowering in the arms of a man, as an armed INS agent reaches for him.

While many Americans were undoubtedly startled by the swift actions of INS in this case, it is likely that few were surprised by the comprehensive media coverage of the event. Americans have grown accustomed to detailed news coverage of law enforcement activities. The public's seemingly unquenchable interest in viewing the exploits of law enforcement officers has spawned the ever increasing media coverage of such events. Unfortunately, the media's efforts to satisfy the public's interest also has generated a number of civil suits against individual law enforcement officers.

Unlike the Gonzalez home in Miami, most residences that law enforcement officers enter are not surrounded by hoards of reporters keeping constant vigil. When the media is present to document law enforcement activities inside most private premises, they are there at the invitation of the officers. It is this invitation to the media to enter private premises that has given rise to a number of civil suits against law enforcement officers. [1]

Over the past few years, these civil suits alleging violations of the Fourth Amendment right of privacy, have met with varied success in federal court. [2] As a result, the question of whether media ride-alongs violate the Fourth Amendment and, if so, to what extent are individual law enforcement officers liable, has remained unanswered. Recently, however, in Wilson v. Layne, [3] the Supreme Court of the United States confronted and resolved these issues in a manner that will undoubtedly curtail media ride-alongs in the future.

This article reviews the Supreme Court's decision in Wilson and examine its potential impact on the media policies of law enforcement agencies. Additionally, the likely effect the Wilson decision may have on police practices unrelated to the media will also be considered.

WILSON V. LAYNE

Early one morning, Charles and Geraldine Wilson were awakened by the sounds of individuals forcibly entering their home. Scantily clothed, the Wilsons ran to investigate and found several armed law enforcement officers and two reporters in their living room. The Wilsons were restrained by the officers while a protective sweep of their premises was conducted. The officers, under the authority of an arrest warrant, were searching for the Wilsons' son. At the completion of the search, the officers learned that the subject was not in the home, and they departed. The entire event was witnessed and captured on film by the reporters on the scene.

Although the photographs taken that day were never published, the Wilsons filed a civil suit against the officers [4] who invited the reporters into their home. The action was based on the claim that bringing the media into the home constituted an unreasonable search in violation of the Wilsons' Fourth Amendment rights. The named officers, arguing that they did not violate a clearly established law, moved for dismissal of the action on the basis of qualified immunity. The district court denied the officers' motion.

On interlocutory appeal to the U.S. Court of Appeals for the Fourth Circuit, a divided court granted the motion and dismissed the suit. In doing so, the court declined to rule on the constitutionality of taking the media into private premises. Rather, the court concluded that, if the Fourth Amendment was violated by the presence of the media, the officers could not be held liable because the prohibition was not clearly established at the time the invitation was extended to the media. [5] The Supreme Court subsequently granted review. [6]

Fourth Amendment Violation

Before reaching the question of qualified immunity, the Supreme Court first considered whether the underlying action of inviting the media to enter private premises [7] to observe the execution of a warrant amounted to a constitutional violation. The Court began by reviewing the historical underpinnings of the Fourth Amendment and reflecting upon the intent of the framers to embody the "centuries-old principle of respect for the privacy of the home." [8] Out of this respect for privacy, the Court traditionally has required law enforcement officers who enter premises under the authority of a warrant, to constrain their actions in execution of the warrant to those that are reasonably "related to the objectives of the authorized intrusion." [9]

In the case under consideration, the Court recognized that the law enforcement officers entered the Wilsons' residence under the lawful authority of a warrant [10] and were entitled to take steps reasonably necessary to accomplish the legitimate government purpose of making an arrest. However, the Court found that the reporters were not present for any purpose reasonably related to the execution of the warrant and, thus, the officers exceeded the authority of the warrant by inviting the media to take part.

In reaching its conclusion, the Court specifically rejected the officers' argument that the presence of the reporters was reasonable because it "furthered their law enforcement mission" by publicizing the government's efforts to combat crime and minimizing the likelihood of both police abuse and physical resistance of subjects. While acknowledging the legitimacy of these government objectives, the Court held that they were not sufficient to outweigh the "right of residential privacy at the core of the Fourth Amendment." [12]

Qualified Immunity

Having determined that the presence of the media at the invitation of the law enforcement officers constituted a violation of the Wilsons' Fourth Amendment rights, the Court next turned its attention to the issue of qualified immunity. This inquiry required the Court to determine whether in 1992, when the events that lead to the civil suit took place, a "reasonable officer could have believed that bringing members of the media into a home during the execution of an arrest warrant was lawful, in light of clearly established law and the information the officers possessed." [13]

Conceding that a reasonable officer could have believed that bringing members of the media into a home during the execution of a warrant was lawful because it served the important government purpose of keeping the public informed, and that in 1992 there were no judicial opinions to the contrary, the Court concluded that the contours of the Fourth Amendment in this area were not clearly established. Moreover, the Court pointed out that the officers involved in the suit relied on their own agency policies when issuing the invitation to the media to participate in the execution of the warrant. Thus, the Court granted the officers qualified immunity.

MEDIA POLICY CONSIDERATIONS

Although the officers involved in Wilson were granted qualified immunity, the decision of the Court in that case makes the law in this area "clearly established" and, thus, the defense of qualified immunity will not be available to officers involved in similar conduct in the future. Because the public appears to be genuinely interested in law enforcement activities, it is likely that the media will want to continue its past practice of participating in ride-alongs with officers. Law enforcement agencies should carefully craft media policies that follow the parameters established by the Supreme Court in Wilson. Moreover, agencies should provide training designed to alert officers to the potential personal liability of exceeding those parameters.

When crafting media policies, it is important to note that the decision of the Supreme Court in Wilson only prohibits law enforcement officers from inviting representatives of the media or others into private areas protected under the Fourth Amendment. The holding in the case does not preclude the media from witnessing and filming law enforcement activities that take place in public areas. Nor does it proscribe attempts to obtain consent from occupants of residences prior to inviting the media to enter.

In many instances, it would be impractical, if not impossible, for law enforcement officers to obtain consent from the occupants of private premises prior to making an entry. In this case, the media must resign itself to filming from the exterior of the residence.

If representatives of the media are not satisfied with documenting law enforcement activities that occur in public places or filming from the exterior of residences, they may attempt to use waivers of liability to justify intrusions into private areas. Law enforcement officers and agencies contemplating a cooperative operation with the media should be cautioned against such waivers.

Waivers of liability are the equivalent of a business contract entered into by the media and occupants of the premises. The initial concern of law enforcement officers and agencies should be that the waiver protects both law enforcement officers and media representatives from liability. However, even the most expansive waiver may not be sufficient to protect officers and agencies from liability if it is obtained under coercive circumstances. Because waivers of liability are contracts, they are unenforceable if made under duress. [14] It is very likely that waivers, signed by individuals as law enforcement officers are making a forcible entry into their home to search for evidence of a crime or to make an arrest, would be viewed by courts as contracts under duress and insufficient to shield officers or agencies from liability.

OTHER POLICY CONSIDERATIONS

The decision of the Supreme Court in Wilson was intended to restrict more than just media ride-along programs. Caution must be exercised anytime law enforcement officers invite third parties into private premises. Whether third parties are participating in a citizen ride-along program or are part of an assembled search team, their presence in private premises is subject to review under the standard set by the Court in Wilson. An example of the type of police practice that is now clearly prohibited can be found in Buonocore v. Harris. [15]

For nearly two years, Buonocore lived with his girlfriend, Linda Sue Taylor. Following their breakup, Taylor advised local law enforcement officers that the Buonocore home contained illegal weapons and telephone company equipment that he had stolen from his employer. The information regarding the illegal weapons was provided to agents of the ATF and a federal search warrant was obtained.

Prior to executing the federal warrant, a deputy sheriff contacted the telephone company and invited one of their security officers to go along on the search to identify any property belonging to the company. The initial search of Buonocore's home was conducted by the law enforcement officers. Once the preliminary search was completed and no illegal weapons were found, the telephone company security officer was called in to identify any company equipment that may have been in plain view. The subsequent search by the security officer resulted in the seizure of a "number of relatively inexpensive items belonging to" the telephone company. [16]

Although no criminal charges were brought against him, Buonocore was dismissed from his job for failing to secure "specific authorization" to have company property in his residence. Buonocore thereafter filed Suit against the law enforcement officers who allegedly invited the company security officer to accompany them during the execution of the search warrant.

The officers moved to dismiss the action on the grounds of qualified immunity. However, the trial court denied the motion and the case proceeded to a jury trial. Following an award of damages [17] in favor of Buonocore, the officers appealed. On review, the United States Court of Appeals for the Fourth Circuit concluded that the deputy who invited the security officer to go along had violated the Fourth Amendment by "allowing a search warrant to be used to facilitate a private individual's independent search of another's home for items unrelated to those specified in the warrant." [18] Of particular concern to the court was that the facts could support a jury finding that the deputy failed to properly supervise the security officer while on the scene and, instead, allowed him to rummage through Buonocore's personal property.

If the actions of the deputy sheriff in Buonocore were reviewed under the standard recently set by the Supreme Court in Wilson, the focus of the court would likely change but the outcome of the case would remain the same. Instead of concentrating on the issue of supervision, the court could simply consider the reasons for inviting the third party into the private residence and declare the action unconstitutional.

The warrant authorizing the entry of Buonocore's home allowed the government to take any steps reasonably necessary to locate or identify the items listed in the warrant. Because the warrant listed only illegal weapons as the items to be seized, it would be implausible to argue that the officers reasonably required the assistance of a telephone security guard to accomplish their mission. Thus, properly supervised or not, the presence of the security officer violated Buonocore's Fourth Amendment rights.

CONCLUSION

Not every invitation for third parties to enter private premises will violate the Fourth Amendment. There are numerous law enforcement situations that reasonably call for the assistance of private individuals. For example, officers may invite emergency medical personnel into private premises when their services are reasonably required; a locksmith or computer expert may be summoned by law enforcement officers when reasonably necessary to gain access to areas the officers have the authority to search; and private individuals may be called in to identify stolen property that is not otherwise easily recognizable by the officers. [19]

Department policies should be carefully drawn to limit the involvement of third parties with law enforcement activities unless those activities take place in public locations, the third parties are there at the lawful consent of those occupying private premises, or the third parties are reasonably necessary to assist law enforcement officers in the performance of their legitimate duties. Moreover, because violations of the rule set by the Supreme Court in Wilson can result in officers' personal liability, training should be established to insure that officers comply with the standard. Prior to inviting any third party into private premises, officers must first consider the legal justifications for the government intrusion into those premises, then determine whether presence of the third parties is "reasonable related to the objectives of the authorized intrusion." [20]

Endnotes

(1.) See, e.g. Ayeni v. Mottola, 848 F. Supp. 362 (E.D.N.Y. 1994) aff'd. 35 F.3d 680 (CA2 1994), cert. denied 115 S. Ct. 1689 (1995); Berger v. Hanlon, 129 F.3d 505 (CA9 1997) cert. granted 119 S. Ct. 443, vacated and remanded 119 S. Ct. 1706 (1999); Wilson v. Layne, 141 F.3d 111, (CA4 1998), cert. granted 119 S. Ct. 443 (1998), aff'd 119 S. Ct. 1692 (1999).

(2.) In Ayeni and Berger, supra, the courts denied the officers' motions for qualified immunity. In Wilson, however, the court granted the officers qualified immunity.

(3.) 119 S. Ct. 1692 (1999).

(4.) The local law enforcement officer was sued pursuant to 42 U.S.C. [sections] 1983 and the federal officer was sued under the authority granted by the Supreme Court in Bivens v. Six Unknown Federal Narcotics Agents. 91 S. Ct. 1999 (1971).

(5.) 141 F.3d. 111 (CA 4 1998).

(6.) 119 S. Ct. 443 (1998). Certiorari was granted because of the split in the circuit courts that is reflected in the cases contained in endnote 2.

(7.) Private premises include home, businesses, and anywhere else individuals have a Fourth Amendment right of privacy.

(8.) 119 S. Ct. at 1697.

(9.) Id. at 1698.

(10.) The officers entered the Wilsons' home under the authority of an arrest warrant. In Payton v. New York, 445 U.S. 573 (1980), the Supreme Court held that an arrest warrant carries with it the authority to enter the subject's premises as long as, at the time of entry, officers have probable cause to believe the subject is inside.

(11.) Id.

(12.) Id.

(13.) Id. at 1700.

(14.) See, 66 Am. Jur. 2d Restitution and Implied Contracts [sections]11 (1973).

(15.) 134 F.3d 245 (1998).

(16.) Id. at 249

(17.) The jury found no liability on the part of the ATF agent. However, the jury assessed $8,500 against the sheriff's deputy.

(18.) 134 F.3d at 251.

(19.) See, e.g. Bills v. Aseltine, 958 F.2d 697 (CA6 1992).

(20.) 119 S. Ct. at 1698.