| Zurcher v. Stanford Daily
(No. 76-1484)
___ |
||||
|---|---|---|---|---|
| Syllabus
| Opinion
[ White ] | Concurrence
[ Powell ] | Dissent
[ Stewart ] | Dissent
[ Stevens ] |
| HTML version
PDF version | HTML version
PDF version | HTML version
PDF version | HTML version
PDF version | HTML version
PDF version |
Zurcher v. Stanford Daily
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
MR. JUSTICE POWELL, concurring.
I join the opinion of the Court, and I write simply to emphasize what I take to be the fundamental error of MR. JUSTICE STEWART's dissenting opinion. As I understand that opinion, it would read into the Fourth Amendment, as a new and per se exception, the rule that any search of an entity protected by the Press Clause of the First Amendment is unreasonable so long as a subpoena could be used as a substitute procedure. Even aside from the difficulties involved in deciding on a case-by-case basis whether a subpoena can serve as an adequate substitute, [n1] I agree with the Court that there is no constitutional basis for such a reading. [p569]
If the Framers had believed that the press was entitled to a special procedure, not available to others, when government authorities required evidence in its possession, one would have expected the terms of the Fourth Amendment to reflect that belief. As the opinion of the Court points out, the struggle from which the Fourth Amendment emerged was that between Crown and press. Ante at 564. The Framers were painfully aware of that history, and their response to it was the Fourth Amendment. Ante at 565. Hence, there is every reason to believe that the usual procedures contemplated by the Fourth Amendment do indeed apply to the press, as to every other person.
This is not to say that a warrant which would be sufficient to support the search of an apartment or an automobile necessarily would be reasonable in supporting the search of a [p570] newspaper office. As the Court's opinion makes clear, ante at 564 565, the magistrate must judge the reasonableness of every warrant in light of the circumstances of the particular case, carefully considering the description of the evidence sought, the situation of the premises, and the position and interests of the owner or occupant. While there is no justification for the establishment of a separate Fourth Amendment procedure for the press, a magistrate asked to issue a warrant for the search of press offices can and should take cognizance of the independent values protected by the First Amendment -- such as those highlighted by MR. JUSTICE STEWART -- when he weighs such factors. If the reasonableness and particularity requirements are thus applied, the dangers are likely to be minimal. [n2] Ibid.
In any event, considerations such as these are the province of the Fourth Amendment. There is no authority either in history or in the Constitution itself for exempting certain classes of persons or entities from its reach. [n3]
1. For example, respondents had announced a policy of destroying any photographs that might aid prosecution of protesters. App. 118, 152-153. While this policy probably reflected the deep feelings of the Vietnam era, and one may assume that, under normal circumstances, few, if any, press entities would adopt a policy so hostile to law enforcement, respondents' policy at least illustrates the possibility of such hostility. Use of a subpoena, as proposed by the dissent, would be of no utility in face of a policy of destroying evidence. And unless the policy were publicly announced, it probably would be difficult to show the impracticality of a subpoena as opposed to a search warrant.
At oral argument, counsel for respondents stated that the announced policy of the Stanford Daily conceivably could have extended to the destruction of evidence of any crime:
QUESTION: Let us assume you had a picture of the commission of a crime. For example, in banks they take pictures regularly of, not only of robbery, but of murder committed in a bank, and there have been pictures taken of the actual pulling of the trigger or the pointing of the gun and pulling of the trigger. There is a very famous one related to the assassination of President Kennedy.
What would the policy of the Stanford Daily be with respect to that? Would it feel free to destroy it at any time before a subpoena had been served?
MR. FALK: The -- literally read, the policy of the Daily requires me to give an affirmative answer. I find it hard to believe that, in an example such as that, that the policy would have been carried out. It was not addressed to a picture of that kind or in that context.
QUESTION: Well, I am sure you were right. I was just getting to the scope of your theory.
MR. FALK: Our --
QUESTION: What is the difference between the pictures Justice Powell just described and the pictures they were thought to have?
MR. FALK: Well, it simply is a distinction that --
QUESTION: Attacking police officers instead of the President. That is the only difference.
Tr. of Oral Arg. 39-40. While the existence of this policy was not before the magistrate at the time of the warrant's issuance, 353 F.Supp. 124, 135 n. 16 (ND Cal.1972), it illustrates the possible dangers of creating separate standards for the press alone.
2. Similarly, the magnitude of a proposed search directed at any third party and the nature and significance of the material sought are factors properly considered as bearing on the reasonableness and particularity requirements. Moreover, there is no reason why police officers executing a warrant should not seek the cooperation of the subject party, in order to prevent needless disruption.
3. The concurring opinion in Branzburg v. Hayes, 408 U.S. 665, 709-710 (1972) (POWELL, J.), does not support the view that the Fourth Amendment contains an implied exception for the press, through the operation of the First Amendment. That opinion noted only that in considering a motion to quash a subpoena directed to a newsman, the court should balance the competing values of a free press and the societal interest in detecting and prosecuting crime. The concurrence expressed no doubt as to the applicability of the subpoena procedure to members of the press. Rather than advocating the creation of a special procedural exception for the press, it approved recognition of First Amendment concerns within the applicable procedure. The concurring opinion may, however, properly be read as supporting the view expressed in the text above, and in the Court's opinion, that under the warrant requirement of the Fourth Amendment, the magistrate should consider the values of a free press as well as the societal interest in enforcing the criminal laws.
