Privacy

6. Trespass cases

Trespass is a tort that involves going onto private property or causing another to do so without the consent of the person who owns or is lawfully in possession of the property.^[31]  Intrusion cases involving trespass usually arise out of newsgathering activities in which media representatives go onto private premises or in which the media obtain documents or other private property as the result of a trespasser’s efforts.

Intrusion problems frequently arise when reporters and photographers follow or accompany police, fire fighters and other officials into homes, offices and other private premises where crimes, arrests, accidents or natural disasters have occurred.^[32] The court decisions in such cases are not consistent, and the outcomes often appear to depend upon the specific facts.^[33]

For many years reporters and photographers followed the custom of obtaining and relying on permission from law enforcement officers to enter onto private property that was the scene of a crime, fire or natural disaster.  In 1999, however, the U. S. Supreme Court ruled that such permission is legally ineffective; accordingly, media representatives should not enter onto private premises in the face of an objection from the owner or other person having authority over the premises.  Likewise, a journalist should not enter private property if a “No Trespassing” sign is posted.  If no sign is posted and no occupant or other person with apparent authority to give consent is present, a journalist should proceed no further than the areas where a salesman or delivery person would be expected to go, such as a driveway, porch or lawn.

In the 1999 case, Wilson v. Layne, the Court held that police who invite media representatives to accompany them during the execution of search warrants may violate the Fourth Amendment rights of the individuals whose homes are the subject of the warrant.^[34]  The case arose when U.S. marshals invited a photographer and a reporter from The Washington Post to accompany them while they executed a search warrant.  At least five plainclothes officers with guns drawn entered a home at 6:45 a.m. in search of a man wanted for probation violations.  When they entered the home with the reporter and photographer in tow, the marshals were confronted by the father of the man sought in the warrant.  Cursing and wearing only briefs, the father was quickly subdued after demanding that the marshals state their business.  His wife appeared wearing only a nightgown and witnessed her husband being restrained by the officers.  The subject of the warrant was not found in the home.  

The Post never published the photographs of the incident.  Despite finding that the marshals violated the couple’s Fourth Amendment rights, the Supreme Court found the marshals immune from liability, saying that the law in this area had not been previously established so as to give notice to law enforcement engaged in the practice.  There is no indication that the Post was ever sued.  However, the opinion clearly gives warning to police and the media that similar conduct after the opinion may be actionable.

In Hanlon v. Berger, a companion case to Wilson v. Layne, agents of the federal Fish and Wildlife Service obtained a warrant to search a 75,000-acre ranch in Montana for evidence of violations of federal wildlife laws.  CNN accompanied the multiple-vehicle caravan when the search of the ranch was carried out.^[35]  Relying on Wilson v. Lane, the Supreme Court held that “police violate the Fourth Amendment rights of homeowners when they allow members of the media to accompany them during the execution of a warrant in their home.”^[36]  Consistent with its decision in Wilson, the Hanlon Court also held that the police had a defense of qualified immunity for permitting CNN’s access as the state of the law was not clear until its decisions.  The opinion makes no mention of that qualified immunity extending to CNN.  

After the U.S. Supreme Court decision returned the case to the Ninth Circuit Court of Appeals, the appeals court decided during further proceedings that because CNN had worked so closely with the Fish and Wildlife Service agents in the execution of the search warrant CNN staffers could be considered “joint actors” with the government and thus subject to claims for violation of the Bergers’ Fourth Amendment rights.  The circuit court declined to extend to CNN the qualified immunity defense recognized by the U.S. Supreme Court as being available to the federal agents involved.^[37] The federal government and CNN settled the case in May 2001.^[38] 

Potential trespass situations require reporters and photographers to exercise common sense and good judgment, usually on the spur of the moment. It is often difficult to tell whether a particular place is private property, and media representatives often receive conflicting instructions or advice from law enforcement officers and others at the scene of a crime or accident.  It is almost always best to comply with orders from police and fire officials, even if you think they are incorrect.  If you think they are wrong, notify your employer and check with an attorney who is knowledgeable about this area of the law. If you find that the authorities overstepped their authority, you and your employer should seek a conference with the authorities and attempt to reach understandings to prevent further problems.

The leading case involving the media’s receipt and publication of stolen property is Pearson v. Dodd, a 1969 case in which members of U.S. Sen. Thomas Dodd’s staff made photocopies of private documents from his office and gave them to Drew Pearson, a nationally syndicated columnist.^[39]  A federal circuit court held that Pearson was not liable for intrusion because he had neither participated in nor encouraged the removal of the documents from the senator’s files.^[40]

Bilney v. Evening Star is a similar case in which intrusion claims were dismissed against a newspaper that published the confidential academic records of University of Maryland basketball players.^[41]  The court reasoned that even though the newspaper knew that the information was unlawfully obtained, its employees did not participate in the trespass.^[42]

Media representatives who obtain documents or copies of documents that may have been taken unlawfully should immediately contact an attorney who is knowledgeable about First Amendment and media law.  Not only is there a risk of a trespass suit, individuals or companies whose documents fall into the hands of reporters may sue for conversion and/or threaten to prosecute the media representatives criminally for receiving stolen property.  In practice, such prosecutions seldom occur because they require the cooperation of the district attorney, who usually has more important things to worry about.  Moreover, the facts seldom support a criminal charge.  Nevertheless, no use of such documents should be made without first consulting with a lawyer.

Media representatives who receive original documents that appear to belong to another should be especially careful.  They and their attorneys may wish to contact the apparent owner and offer to return the documents if the owner will sign a receipt for them. This procedure not only will result in the return of the documents to their rightful owner, it also will serve to authenticate any copies that the reporter makes.

References