SAN FRANCISCO (CN) – Police used records of a journalist’s private communications with a confidential source, obtained by a now-quashed search warrant, to secure permission to raid the reporter’s home and office, two judges revealed in court Friday.
Records of phone calls between freelance journalist Bryan Carmody and an unnamed San Francisco police officer served as evidence that a leaked police report may have been “unlawfully obtained,” San Francisco Superior Court Judge Victor Hwang said in court Friday.
The warrant used to seize Carmody’s phone data was quashed by Superior Court Judge Rochelle East on July 18.
Because all evidence derived from the phone warrant must now be destroyed, Hwang said probable cause no longer exists to justify the warrant that authorized seizing Carmody’s computer, tablets and cellphone from his office in May.
“Without the calls to an officer before or after an officer’s visit to central station, there is no reason to believe Mr. Carmody participated in the theft,” Hwang said.
Hwang is one of three judges who decided to quash and unseal warrants targeting Carmody Friday. Hwang had issued a warrant for Carmody’s newsroom office. Superior Court Judge Gail Dekreon issued a warrant for Carmody’s home and Superior Court Judge Christopher Hite issued a separate warrant for phone records covering a different time period.
Police entered Carmody’s home with guns and a sledgehammer on May 10 as part an investigation into the source of leaked salacious details about the death of late San Francisco Public Defender Jeff Adachi. Adachi was with a woman other than his wife when he collapsed and later died on Feb. 22.
Judge Dekreon said Friday that the 14-page affidavit she relied on when authorizing the raid on Carmody’s home also included information derived from the now-quashed phone warrant.
Dekreon said police never told her Carmody had a press pass issued by the San Francisco Police Department. Last month, Judge East said she, too, was never made aware of Carmody’s status as a journalist.
“The judges who were asked to issue warrants didn’t have the whole story, and that shouldn’t have happened,” Carmody’s attorney, Thomas Burke, of Davis Wright Tremaine, said Friday.
The police department must submit affidavits swearing it has destroyed all information obtained from the quashed warrants and that the information will not be used for any purpose.
The judges said they would also unseal three warrants for Carmody’s home, office and phone but redact portions that might reveal confidential sources or private information, such as addresses.
Representing three press advocacy groups, attorney Duffy Carolan urged Judge Hite not to redact information that was revealed in a San Francisco Chronicle report Thursday night because that information already entered the public domain.
On Thursday, the San Francisco Chronicle published a paragraph that had been redacted from the March 1 phone warrant unsealed by Judge East last month. The paragraph revealed that San Francisco Police Chief William Scott’s spokesman David Stevenson said he spoke with “a confidential media source from a Bay Area news company,” who told him that Carmody was offering to sell the leaked police report to local media outlets.
An attorney for Police Sgt. Joseph Obidi, who wrote the affidavit for the phone warrant, told the Chronicle that his client was never informed that Carmody had a press pass issued by the police department. The attorney, Michael Rains, accused the police chief of blaming investigators for the mishandled investigation.
After initially defending the raid on Carmody’s home, Chief Scott apologized on May 24, saying that police investigators “should have done a better job.” San Francisco Police Officers Association President Tony Montoya accused the chief of throwing officers under the bus, arguing “the chief was actively involved in the investigation.”
The city’s Department of Police Accountability has launched an administrative probe into the Carmody warrants, according to DPA Director Paul Henderson. In a phone interview last month, Henderson said all members of the police department, including the chief, can be investigated for violating laws or department policies.
Press advocates say the warrants were obtained in violation of California’s journalist shield law and the First Amendment, which guarantees freedom of the press.
Carolan, who filed motions to unseal the warrants, represents the First Amendment Coalition, Reporters Committee for Freedom of the Press, and the Northern California chapter of the Society of Professional Journalists.