Media’s Practice of ‘Ride-Alongs’ Faces High Court

It has become a regular feature of reality TV and some local news programs.

Police burst into a home and shout, “Freeze!” as a news camera captures the bewildered look of those about to be arrested.

Until recently, police and the press could claim the law was on their side during these so-called media ride-alongs. Officers armed with a search warrant are entitled to enter a residence. And the news media could invoke the 1st Amendment when, on occasion, they went with the police to cover the story.

But all that may be about to change as the Supreme Court takes up the case this week of an angry Montana rancher and his close encounter with CNN.

At issue is whether law enforcement officers wanting publicity for their efforts may have turned a legal search into an unconstitutional invasion of a homeowner’s privacy.

Siding with the Montana rancher, the U.S. court of appeals in San Francisco complained that “the execution of a search warrant . . . had been transformed into television entertainment.” Both the agents and the TV network can be sued for this violation of privacy, the appeals court said.

If the Supreme Court upholds that conclusion in a ruling due by late June, it will set new ground rules for the police and the media in the nation.

The Montana case began in 1993, when federal agents of the U.S. Fish and Wildlife Service wanted to expose an environmental problem. “Rogue ranchers,” as they put it, were poisoning coyotes, which in turn poisoned the endangered bald eagles who ate their carcasses. The agents were frustrated, however, because local jurors, sympathetic to the ranchers, often refused to convict them of violating environmental laws.

Reporters for CNN’s environmental news program “Earth Matters” had heard of the same problem and the two sides agreed to work together. When the agents obtained a warrant to search the 75,000-acre ranch of Paul and Erma Berger, CNN equipped the officers with hidden microphones and cameras. CNN reporters also went along dressed in plain clothes like the agents.

Neither the U.S. magistrate who issued the warrant nor the 71-year-old rancher was told that the search of the premises was being recorded for a television program. In a written agreement, CNN said that it would withhold use of the tapes until after Paul Berger was tried in federal court. There, he was acquitted of three felony charges of killing eagles but convicted of a misdemeanor offense of misusing a pesticide.

CNN then broadcast the segment, titled “Ring of Death,” on at least 10 occasions. Berger in turn sued both CNN and federal agents for invading his privacy.

Los Angeles lawyer Henry H. Rossbacher, a former federal prosecutor who represents the Bergers, said that the agents had abused their power.

“Executing a search warrant is not some kind of game. It is not for the purpose of creating television theatricals,” he said. “I don’t want to live in a country where your friendly law enforcement agent has a right to bring a reporter and a camera crew into my house to get publicity for himself.”

Rossbacher became interested in the issue of media ride-alongs when he represented the wife of a Nigerian immigrant whose New York apartment was raided in 1992 by federal agents searching for her husband. They were accompanied by a camera crew from CBS’ “Street Stories.” The cameras followed the woman, who was dressed in a nightgown, and her young son as they tried to hide themselves.

When Tawa Ayeni sued, a federal judge and the U.S. court of appeals in New York denounced the agents and CBS in angry opinions. The officers had no authority to “bring into the Ayeni home persons who were neither authorized by the warrant to be there nor serving any legitimate law enforcement purpose,” said Chief Judge Jon O. Newman. “A private home is not a sound stage for law enforcement theatrics.”

CBS did not broadcast the tape and eventually settled the lawsuit. But the New York ruling served as a precedent when the Bergers’ case came before the U.S. 9th Circuit Court of Appeals in San Francisco. A federal judge in Montana had dismissed the rancher’s complaint, but the appeals court revived it and cleared the way for a trial.

“This was no ordinary search,” wrote Judge Mary Schroeder, recounting that CNN recorded eight hours of tape at Berger’s ranch. “This search stands out as one that at all times was intended to serve a major purpose other than law enforcement.”

But other courts have seen the matter differently. The more conservative U.S. court of appeals in Richmond, Va., blocked a lawsuit against federal marshals who barged into the home of a Montgomery County, Md., couple.

The marshals were searching for a fugitive when they entered the home at dawn in April 1992. Instead, they found his sleeping parents. The agents were accompanied by a reporter and photographer for the Washington Post who took pictures of Charles and Geraldine Wilson as they were questioned by the agents.

Later, the Wilsons sued the agents but not the newspaper, which did not publish the photos. Their suit was tossed out by the appeals court, however, which said that the agents could not be held liable because the law was not crystal clear.

To clarify the situation, the Supreme Court agreed to hear both cases. Arguments will be heard Wednesday in Hanlon vs. Berger, 97-1927, and Wilson vs. Layne, 98-83.

However, the justices did not agree to hear a separate appeal from CNN in the Montana case. If the high court rules against the wildlife agents, it likely will allow the separate suit against CNN to proceed as well.

The case against these police-press operations has brought together an unusual coalition of conservatives and liberals. For example, the Wilsons are represented by American Civil Liberties Union lawyer Art Spitzer and former Reagan administration attorney Richard K. Willard.

“The press has no greater right to enter a private house than anyone else,” said Spitzer. “It’s an absurd argument to say it is OK because the police invited them.”

A coalition of 21 TV networks, newspapers and press organizations, including The Times, filed a friend-of-the-court brief on behalf of CNN.

The brief notes that for decades it has been a common practice for some reporters to ride along with police officers on patrol.

“These decisions [against CNN and others] show no regard for the watchdog role of the press. It is good to have an independent eye watching what the cops are doing,” said Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press, which joined the brief.

Incidents of police brutality may be deterred, or at least exposed, if reporters are there, she said. Since early February, New York City has been torn by the unexplained killing of West African immigrant Amadou Diallo. Four officers went to his Bronx apartment and fired 41 bullets at him.

For 11 years, the Fox TV program “Cops” has shown police going on patrol and making arrests. In all that time, it has not been successfully sued, said John Langley, its executive producer.

“We don’t broadcast the footage without a signed release [from those who are shown], or [else] we blur their faces,” says Langley. “If law enforcement people are going in with a warrant, that is a matter of public record. The media have a right to tell that story.”

Rossbacher, the rancher’s lawyer, said that he has no problem with reporters riding along with officers on patrol. He draws the line, however, at joint endeavors between the police and press that involve entering private property.

“It is a corrupt deal for both sides. Law enforcement does things it normally wouldn’t do to get publicity and the press makes a deal to get a better story,” he said.

If Rossbacher wins in the high court, he will take the Bergers’ case to trial in Montana, a prospect he relishes.

“There is not an attorney in America who would not jump at the chance to put Ted Turner and Jane Fonda on trial before a jury in Montana,” Rossbacher says, referring to the fact that CNN was founded by Turner. “If he can afford $1 billion for the United Nations, why not $100 million for the Bergers?”