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Reporter's suit over search and seizure dismissed

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NEWS MEDIA UPDATE   ·   FOURTH CIRCUIT   ·   Confidentiality/Privilege   ·   June 5, 2006

Reporter’s suit over search and seizure dismissed

  • The federal appellate court halted a lawsuit filed by a reporter whose computers and electronic files were seized by police acting under a warrant that relied mainly on six-year-old evidence.

June 5, 2006  ·   A federal appeals court has dismissed a newspaper reporter’s lawsuit alleging that a 2004 police search of his home for a video and photographs depicting the 1995 Oklahoma City bombing violated his constitutional rights. The 2-1 ruling overturned a lower court decision which would have allowed the lawsuit to proceed.

In dismissing the reporter’s suit Tuesday, the U.S. Court of Appeals in Richmond (4th Cir.) found that the search of the home of John Culbertson, who had worked in the Washington Bureau for the Arkansas Chronicle, did not violate his First Amendment rights and was not overbroad.

“Here, the basis of the seizure was an attempt to shed evidentiary light on one of the most heinous crimes in this country’s history, not to suppress the ideas contained in the documents,” Judge Karen Williams wrote for the majority. Judge H. Emory Widener Jr. wrote a short concurrence and Judge William L. Osteen, a North Carolina federal judge filling in at the appellate court, dissented.

During the Jan. 30, 2004, search of Culbertson’s Centreville, Va., home, Fairfax County, Va. police Officers Robert Murphy and Steven Milefsky seized eight computers, two laptops, 454 disks, 170 CD-ROMs, 8 mini CD-ROMs, four Zip disks, one hard drive, 14 VHS tapes, four notebooks and one document folder. They executed the warrant on behalf of Oklahoma City Detective Mark Easley, who had learned from a 1998 statement by attorney Thomas Mills

that Culbertson had a video and pictures showing the Alfred P. Murrah Federal Building in Oklahoma City before and after the bombing.

Culbertson later stated that he showed Mills the images on a government computer while working for then- Rep. James Traficant (D-Ohio).

In 2004, Easley questioned Culbertson, who did not say whether he still had the images. A

Fairfax County Circuit Court granted the warrant, and after the search, Culbertson sued the Fairfax officers and Easley, alleging that they violated his Fourth Amendment rights and that they should have known the search was unconstitutionally overbroad and performed without probable cause.

The officers asked the court to dismiss the case, but the U.S. District Court in Alexandria, Va., allowed the suit to go forward.

The appeals court ruled that while warrants must explicitly state what is to be searched for, in this case the warrant — which authorized the officers to seize “every piece of computer equipment and every type of document that might be stored on such equipment” — was not overbroad.

“Because the video and photographs were already in electronic form, they could be transferred to numerous other electronic devices and put into countless types of formats,” Williams wrote. “We cannot and should not tie the hands of law enforcement by expecting an investigating officer to know the exact format electronically stored evidence will take.”

The court also ruled that the detectives had probable cause to believe Culbertson still had the images, by finding “particularly astute Detective Easley’s statement that an individual with possession of such a highly sought after video is likely to maintain possession of it,” Williams wrote.

Judge Osteen’s dissent said that Easley’s statement “adds no evidentiary weight” to show probable cause for the warrant. Easley’s opinion adds great weight to criminal matters because he is a police officer, but in this case there was no evidence showing Easley had special knowledge of cases involving a journalist saving work product, Osteen wrote. Despite that, the court placed special emphasis on Easley’s opinion in finding probable cause.

“It may well be true that many people retain unique things, but it is also true that many people do not make an effort to retain, on their home computers, computer files from jobs they held years before,” Osteen wrote.

The court rejected the argument that the warrant relied on stale information. The trial court had found the warrant relied on old information because Mills viewed the tape with Culbertson six years before the search warrant was issued. The appeals panel ruled that the totality of the evidence — based mainly on Culberton’s 2004 conversation with Easley in which he refused to say if he still had the images — led to the conclusion that the information was not stale.

Culbertson’s attorney, Benjamin Chew, said that no decision has been made whether to appeal to the U.S. Supreme Court or to ask for a rehearing before the full appeals court.

(Arkansas Chronicle v. Murphy, Media Counsel: Benjamin Chew, Patton Boggs, LLP, Washington, D.C.)CM

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