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Berger v. Hanlon

ELR Citation: 28 ELR 20384
Nos. Nos. 96-35251, 35266, 129 F.3d 505/(9th Cir., 11/13/1997)

The court holds that a U.S. Fish and Wildlife Service warrant and subsequent search violated homeowners' Fourth Amendment constitutional rights against unreasonable searches and seizures when two cable television networks accompanied the search. The court first holds that collateral estoppel does not bar the homeowners' civil suit. Because the magistrate judge in the underlying criminal case was not presented with the specific issues raised in this action, the district court erred in holding that the homeowners' Fourth Amendment action was barred. The court next holds that the search violated the homeowners' Fourth Amendment rights against unreasonable searches and seizures. The search stands out as one that at all times was intended to serve a major purpose other than law enforcement. The federal agents obtained the warrant without disclosing the contract between the networks and the government, the planned press presence, or the media's purpose. Further, no circuit decision has ever upheld the constitutionality of a warranted search where broadcast media were present to document the incident for non-law enforcement purposes, and where the videotaping and sound recording were outside the scope of the warrant. Next, the court holds that the federal agents are not entitled to qualified immunity. Where a federal officer brings along an employee of a private corporation acting for the corporation's purposes, not in aid of the officer, the federal officer's conduct violates the Fourth Amendment and the officer is not entitled to qualified immunity. The court next rejects the officers' reliance on the open fields doctrine. The open fields doctrine is not a license for the police to bring trespassers on to private property. Nor does it immunize the officers from liability for conduct that has no law enforcement purpose. The court also holds that the homeowners had an expectation of privacy in their conversations with a federal agent and that the media infringed that privacy when they recorded the homeowners' conversations inside the house. The invited informer doctrine does not shield the media from liability because the surreptitious recording was not done for a legitimate law enforcement purpose. The court further holds that the media's conduct amounted to government action. When an agreement or conspiracy between a government actor and a private party is established, the "joint action test" for determining whether a private party's conduct amounts to government action is satisfied. Here, a written contractual commitment between the media and the government to engage jointly in an enterprise that only the government could lawfully institute for their mutual benefit was proven.

Next, the court holds that the media is not liable under the Federal Wiretap Act. Because the federal agents and the media were acting under authority of a search warrant, the "under color of law" exception applies. Moreover, a federal agent that was a party to the conversation consented to the interception. The court also holds that the district court failed to give full consideration to the homeowners' trespass claim. The district court incorrectly held that the homeowners had no possessory interest in the ranch at the time of the search. The warrant did not justify the media intrusion here, because the officers invited the media for news gathering, not for law enforcement. Therefore, the court remands the trespass claim for further consideration. The court next holds that the homeowners did not state a claim for conversion. Recorded sounds and images cannot be the subject of a conversion claim. Next, the court holds that because the homeowners alleged a claim of interference with both their privacy and their property interests, the district court must reconsider the homeowners' intentional infliction of emotional distress claim. Last, the court refuses to impose an injunction preventing the media from further broadcast of any or all parts of the video and sound gathered during the search. This is essentially a request for a prior restraint, which carries a heavy presumption against its constitutional validity.

Counsel for Plaintiffs
Henry H. Rossbacher
Rossbacher & Associates
Union Bank Plaza
445 S. Figueroa St., 24th Fl., Los Angeles CA 90071
(213) 895-6500

Counsel for Defendants
Thomas M. Bondy, Ass't U.S. Attorney
U.S. Attorney's Office
5806 Judiciary Center Bldg.
555 4th St. NW, Washington DC 20001
(202) 514-7566

Before Kleinfeld and Brewster,* JJ.