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Zurcher v. Stanford Daily

    Brief Fact Summary. Police officers searched respondent newspaper the Stanford Daily’s offices looking for photographs of criminals for purposes of identification.

    Synopsis of Rule of Law. Property may be searched even if its occupants are not reasonably suspected of a crime or subject to arrest.

    Facts. Respondent newspaper published a report with photographs about a clash between demonstrators and police at a hospital. A warrant was issued for petitioner members of law enforcement to search the respondent’s offices for the photographs based on probable cause that they had such photos. The District Court accepted the respondent’s argument that the Fourth Amendment as applied to states through the Fourteenth Amendment did not allow a warrant to be issued to search for materials in someone’s possession who is not suspected of a crime unless there is probable cause that a subpoena duces tecum would be impracticable. Also, First Amendment concerns would only make the search permissible if there is a clear showing that important materials might be destroyed or removed from the jurisdiction, and that a restraining order would be futile. The Ninth Circuit Court of Appeals affirmed and the Petitioner group of police officers was granted certiorari.

    Issue. Is a state prevented by the Fourth and Fourteenth Amendments from issuing a warrant to search for evidence because the owner or possessor of the premises to be searched is not reasonably suspected of criminal conduct?
    Do the same standards for issuing a warrant apply when First Amendment freedom of the press concerns are implicated?

    Held. Reverse the decision and admit the fruits of the search.
    No, the crucial element in a reasonable search is not that the property owner is suspected of crime but that there is reasonable cause to believe that the items to be searched for are located on the property to which entry is sought. So, in this case allow the search.

    Insisting on subpoenas duces tecum instead of warrants in such situations would result in delay and possible disappearances of evidence since warrants can be used early in an investigation before all the perpetrators of a crime have been identified. Also, the cause of privacy would not be served since search warrants are harder to obtain than subpoenas.

    No, the preconditions for a search warrant are to be enforced with more exactitude and less discretion when First Amendment interests are at stake, and as a result the press’s ability to gather, analyze and disseminate news will be adequately safeguarded.

    Dissent. Justice Potter Stewart dissented, saying unannounced police searches of newspaper offices would significantly burden the constitutionally protected function of the press to gather news and report it to the public, therefore a subpoena should be impractical before a warrant is issued.
    Justice John Paul Stevens believed the Fourth Amendment required a showing of probable cause that evidence would be concealed or destroyed if prior notice of the search was given for a warrant to be issued to search for evidence in the private files of a person not suspected of criminal activity.

    Concurrence. Justice Lewis Franklin Powell stated his belief that the Fourth Amendment did not require that any search of an entity protected by the press clause of the First Amendment was unreasonable if a subpoena could be used as a substitute procedure. He also implied that some discretion should be allowed by the magistrate in issuing a warrant to search a newspaper office.

    Discussion. There is no precedent for affording newspapers a higher standard of probable cause, but the concerns that the dissenters present that the police will make unannounced searches of newspaper offices are real. The important role of the press in keeping government honest is a role that the courts must be careful in infringing upon.


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