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this post was submitted on 11 Sep 2023
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I've been loosely following this story and I read the warrant applications. You seem certain this is outrageous. Could you explain why?
What was wrong with the warrant? The police seem to have had good probable cause. I'm a huge advocate for free press, but I've yet to hear a legal argument for what is so objectionable, here.
The probable cause statement wasn't even filed until after the warrant was issued and raid occurred.
https://thehill.com/media/4155087-publisher-newspaper-raided-police-says-timing-probable-cause-affidavit-suspicious/
Oh snap, I hadn't seen that detail reported yet.
Elsewhere I see:
That's very suspect.
The top prosecutor, who ordered the seized materials be returned, said themselves that “insufficient evidence exists to establish a legally sufficient nexus between this alleged crime and the places searched and the items seized.” There was never probable cause, no evidence that this alleged illegal access ever happened. There never should have been a warrant in the first place.
On what grounds? What was wrong with the warrant? Did you read it? I realize it's all been tossed after the shit hit the fan.
Not sure what you're asking when you say "on what grounds".
The warrant was issued without any evidence supporting it, which I thought I made clear in my comment.
I did read it, it's linked within the article OP posted that we're replying too, or maybe it's a couple clicks away.
The fact that shit hit the fan seems like a red flag to me that things were wrong from the get go. Cops get away with misconduct every day, for it to make national news means they probably acted indefensibly inappropriately.
You're saying the warrant was issued without supporting evidence because the affidavit was filed after the warrant was served?
I don't know what the recording requirements in that court are. It may be that affidavits are submitted sealed and then not filed until after the warrant is served. That doesn't seem out of the scope of ordinary to me.
I'm not sure it's filing means the judge didn't see it.
I've yet to see reasonable cause. Mind sharing your own thought process so we can all know where the other is coming from?
Sure. The warrant application states that the newspaper employee accessed some private government record via online portal, and then shared that record with police and the public. In order to access the record, the newspaper employee must have either impersonated the person whom the record was about (it think it was about a town counselor if memory serves), or else falsely certify that the employee had a valid legal reason to access the information. It's the same certification I have make as a lawyer when doing a private background check, have to choose one of like fourteen legit reasons for requesting the info; comes from a federal privacy statute. The difference being I have a legit reason to certify when I'm doing a search, and I'm not accessing records directly from the government.
So either the newspaper employee committed identity thef or accessed a closed, government computer system under false pretenses, also known as hacking (unauthorized access).
Those were the two probable crimes set forth in the warrant. There is no journalist exception for crimes.
As I understand, the newspaper owner admitted that their employee falsely certified as to her right of access, but refused to give a statement or provide records.
The same officer who applied for the warrant is also the officer who initially received the document on behalf of the police. He recognized that it implicated the police chief in financial crimes, and referred it to internal affairs.
The only wrongdoing I could see is the appearance of conflict of interest, in that the department or prosecutor should have referred the matter to state law enforcement or law enforcement in a different county.
I don't like police raiding reporters in any sense, and that's what prompted me to read the warrant application, but after reading it I understand why the police, prosecutor, and judge all signed off on it. It seems legit.
I think journalism would be a valid reason when discussing public corruption. IANAL, may be wrong.
There are 14 clearly defined rights of access. None of them apply to journalists.
I agree journalism is important and rooting out public corruption is a good cause. They should have requested the records by FOIA. Some records are exempt from FOIA and I have hunch these were such records. Congress passed the law setting out those fourteen reasons a person could have a valid legal right to the data, and fishing expeditions by well meaning journalists isn't one of them, for good reason!
Don't forget, the document was the proof of the corruption, before that, sounds like, it was allegation and conjecture motivated by a small town grudge.
I don't know, assume the affidavit is true and the actions of the newspaper employee were illegal, is the raid objectionable for any legal reason?
The whole thing stinks.
Thanks for the details, genuinely. I've not fired up PACER myself here, as much as me a private non-lawyer citizen could really follow along there.
Personally, I side with the newspaper morally in this matter. I'm much more of a "if raiding a newspaper over peacefully attempting to uncover corruption in local governments because they lied to do so is legal than the laws need to change" kinda guy.
I know that's pivoting. I also don't have any good ideas on how to improve the laws. Personally, I don't see any way of making a law that doesn't become either a target of or a tool for abuse of power, and this really feels a lot like people in power using the law to help a friend in a way that most citizens would not have access to.
I don't disagree.
They should have issued a subpoena, like every other case. Also the judge ordered the return of seized items from the search. Not a good sign of confidence in their legality.
A subpoena is a demand to appear issued by a lawyer. A witness has to be subpoenaed to something. You subpoena testimony, usually by deposition, to a hearing or to a grand jury. A subpoena duces tecum is a subpoena to show up and testify and bring documents, too.
Government subpoenas are usually in connection with civil enforcement. In the criminal context, they are to compel a witness to a grand jury or to testify at a pretrial deposition or at trial after the suspect as been charged, or in the case of secret proceedings, when a grand jury has convened.
Police use warrants not subpoenas.