Judge Says ‘Reality’ TV Can’t Join Raids : Press: In a case with possible broad implications, a federal jurist says ‘Street Stories’ exceeded its legal rights.

In a case that may have legal implications for the numerous “reality” TV series that have cameramen and reporters accompanying law-enforcement agents in their work, a federal judge here has criticized both the Secret Service and the U.S. Attorney’s office for taking a crew from CBS’ “Street Stories” on a search of the home of a man under investigation for credit-card fraud.

U.S. District Judge Jack Weinstein said that CBS News had no journalistic privilege under the First Amendment to be present during the search.

The issue came up last week in conjunction with the case of Nigerian-born Babatunde Ayeni, who has been indicted for credit-card fraud. His attorneys had subpoenaed the CBS videotape as evidence. A hearing was held on CBS’ argument that it did not have to turn over the tape because it was made as part of the news-gathering process that is protected by the First Amendment’s guarantee of freedom of the press.

“I don’t believe there is a (journalistic) privilege in a case where the government is operating together with a television agency,” Weinstein said.

When a search warrant is issued for somebody’s home, Weinstein said, it does not allow the government “to give entre to various television and media people of any kind. . . . You can’t use the warrant as a way of breaking down a door by the government to permit (CBS) to enter. If that’s what was done, that’s a serious breach of ethics of the government as well as others.”

Although news organizations traditionally resist turning over their videotapes or reporters’ notebooks in legal cases, CBS said it would comply with Weinstein’s decision. The judge will review the “Street Stories” footage--which the network said it had not aired--to determine whether it will be part of Ayeni’s trial, which is due to begin Nov. 30.

Attorneys for CBS had argued that “Street Stories” had implicit permission to film the search because the wife of the defendant, who was at home with her 5-year-old son at the time, did not ask the camera crew to leave.

Weinstein criticized CBS’ position, saying that someone whose apartment was being searched could not be expected to “assert anything” under such circumstances.

Henry Rossbacher, Ayeni’s attorney, hailed Weinstein’s ruling and predicted that it would have broad repercussions for television.

The last few years have brought a flurry of so-called “reality” series such as “Street Stories,” CBS’ “48 Hours” and Fox’s “Cops” that have followed various government agents on drug “busts” and other activities.

“TV producers and networks should now be on notice that a respected federal judge has said that they are acting illegally if they go rampaging into people’s homes behind the government on a search warrant,” said Rossbacher, who said he believed this was the first such case to be litigated.

“The traditional argument of the press in asserting its First Amendment rights to journalistic privilege is that reporters shouldn’t be turned into agents of the government by having their materials used in legal cases,” he continued. “What CBS has done here is to voluntarily become an agent of the government by cutting a deal with the Secret Service and the Justice Department. The Secret Service searched this woman’s apartment for three hours, and she said in an affidavit and is prepared to testify that, during the 20 minutes that CBS filmed her, she tried to shield herself and her son from the cameras. This kind of activity denotes a dangerous trend in the media, and it’s got to be stopped.”

Rossbacher, who was a United States attorney in Los Angeles from 1978 to 1985, said that he believed the new crop of “reality” TV-cop shows are putting pressure on government agencies for more access.

“When I was a U.S. attorney, our guidelines were that even U.S. attorneys couldn’t go along on search warrants because we weren’t law-enforcement officers,” he said. “Today, you have all of these infotainment TV cop shows, and the Drug Enforcement Agency, the Secret Service and other government agencies are inviting the press along on their activities to make the agencies look good. The only way that some TV reporter is getting into these situations is by having a federal officer with a flak jacket and a gun give the reporter entre he wouldn’t have otherwise. It subverts law enforcement to have government agencies chauffeuring TV reporters to telegenic crimes.”

Martin Garbus, a First Amendment lawyer who has argued cases for numerous news organizations, said that it was unusual for government agents to take a TV crew along on a search warrant, but he agreed with Rossbacher that they are being pushed by the “reality” shows.

“I think Judge Weinstein’s decision will give government agencies pause,” Garbus said in an interview. “It is legal for a TV crew to cover an arrest--that’s a public event. It’s rare for a government agency to take a TV crew into someone’s private home. But as you get more and more of these shows covering law-enforcement activities, TV crews are going into more places. Government agencies don’t like to say no because it looks bad, and they don’t want to appear to be secretive. We’re at a cutting edge about these issues.”

CBS News declined comment on the case. Rossbacher is seeking dismissal of the charges against Ayeni on the grounds of “outrageous” behavior by the government during the TV-covered search.