S.F. Judge Rules Warrant for Journalist's Phone Records Was Improper

A San Francisco judge ruled Thursday that she should never have issued a search warrant for a journalist's phone records earlier this year and that police must unseal most of the affidavit filed to support the warrant.

San Francisco police requested the warrant as part of an investigation into who leaked to reporter Bryan Carmody a police report on the death of public defender Jeff Adachi. The police report revealed Adachi was at a friend's apartment with a woman who was not his wife and that officers found empty bottles of alcohol and marijuana gummies. Carmody sold the police report, along with footage he shot of the apartment, to several news outlets.

This warrant is one of five issued in connection to the investigation of the leaked police report. Two of those warrants led to the highly publicized raids of Carmody's home and office in May. Identical motions for the remaining four warrants are still making their way through the courts and have hearings scheduled for later this summer.

First Amendment attorneys have argued that the warrant violated California's shield law, which protects journalists from revealing confidential sources.

Judge Rochelle East ruled the warrant was improper because Carmody is a journalist. She said police did not tell her he was a journalist when requesting the warrant. An attorney representing Carmody said she should have known that information.

"I think it is very disturbing that she didn't," said Tom Burke, Carmody's attorney, who also represents KQED in other cases. "I have confidence in the judiciary. I don't think that they do these sorts of things. But they can only ... act on whatever information that they have, and if they're not told the information how are they supposed to know?"

Police now can't use any evidence gathered under the warrant and must destroy the evidence.

Judge East also ruled that SFPD must unseal the affidavit filed to request the warrant by Tuesday morning — with the exception of one paragraph. East said that paragraph contained information about a confidential informant who would suffer retribution if his or her identity is revealed.

"It's really important for the public to understand what information was provided to the court specifically that justified the issuance of the warrant," said attorney Duffy Carolan, who filed the motion to unseal, "and whether the officers who came into court under penalty of perjury were forthcoming with the facts that they knew about Mr. Carmody's status as a journalist."

The Police Department did not comment on the ruling.

Police Chief William Scott said in a statement two weeks after the raid in May that he was "concerned by a lack of due diligence by department investigators in seeking search warrants and appropriately addressing Mr. Carmody’s status as a member of the news media."