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Government need not raise Privacy Protection Act in warrant application

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  1. Protecting Sources and Materials
Government need not raise Privacy Protection Act in warrant application07/29/96 MISSOURI--In mid-July, the U.S. Court of Appeals in St. Louis…

Government need not raise Privacy Protection Act in warrant application

07/29/96

MISSOURI–In mid-July, the U.S. Court of Appeals in St. Louis (8th Cir.) ruled that a county prosecutor had been improperly prevented by a District Court from arguing that the seizure of a videotape from a Kansas City television station fell within an exemption of the federal Privacy Protection Act.

The appeals court ordered the lower court in Kansas City to re- consider whether prosecutor Claire McCaskill should be fined $1000 because the police used a search warrant — instead of a less- intrusive subpoena, as the law requires in most instances — to obtain a tape that recorded the abduction of a woman who was later murdered.

WDAF-TV purchased the tape from a tourist and televised it on August 5, 1994. Later that day, police armed with a search warrant seized the tape. The Privacy Protection Act requires that, with limited exemptions, government officials can obtain documentary materials intended for dissemination to the public only by a subpoena.

The District Court ruled that McCaskill was liable for $1000 in damages.

She argued that the seizure was justified. The act permits an immediate seizure if there is reason to believe that a death or serious injury is imminent, she said, or that the issuing of a subpoena might lead to the destruction, alteration, or concealment of materials. But the court ruled that McCaskill was not entitled to raise these exemptions in her defense because they had not been addressed in the initial application for a search warrant.

The appeals court overruled this decision, holding that neither the text of the Privacy Protection Act nor its legislative history suggest that any exemptions to it must be cited in an application for a search warrant. Congress chose not to include any such requirement in the act, and courts should not “embellish [Congress’s] legislative scheme with additional procedural requirements,” according to the court.

A dissenting judge noted that the law was enacted in response to a U.S. Supreme Court decision, Zurcher v. Stanford Daily, which anticipated that a warrant to search a news agency would establish “special circumstances.” “The logical conclusion is that Congress envisioned the procedural framework to remain intact,” he wrote; Congress anticipated that exemption claims would be considered by a judge before a search warrant was issued. (Citicasters v. McCaskill; Media Counsel: Sam Colville, Kansas City)