An Invasion of Privacy: The Media's Involvement in Law Enforcement Activities
| Published date | 01 January 1999 |
| DOI | https://doi.org/10.1108/eb025888 |
| Pages | 240-251 |
| Date | 01 January 1999 |
| Author | Henry H. Rossbacher,Tracy W. Young,Nanci E. Nishimura |
| Subject Matter | Accounting & finance |
Journal of Financial Crime — Vol. 6 No. 3 — Analysis
An Invasion of Privacy: The Media's Involvement in
Law Enforcement Activities
Henry H. Rossbacher, Tracy W. Young and Nanci E. Nishimura
INTRODUCTION
Thoreau heartily accepted the motto, 'that govern-
ment is best which governs least'.1 Our forefathers
braved treacherous oceans and alien lands embold-
ened by that
belief,
after enduring the Crown's
heavy hand invading and restricting their religious
and personal lives. That is why, among the many
freedoms embodied in our Constitution, the right
to privacy was included in the Fourth Amendment
to protect individuals from arbitrary intrusion by
the state.2 The right has been fundamental to the
establishment of
a
more tolerant society devoted to
the principles of liberty and justice for all.3
As the US Supreme Court has repeatedly
emphasised, the principal object of the Fourth
Amendment is to restrain government incursions
into the private lives of individual citizens.4 The
Warrant clause of the Fourth Amendment adds a
further protection by interposing a detached and
neutral judicial officer with authority to assess the
weight and credibility of information provided by
investigating law enforcement officers and thereby
restrain their otherwise unbridled discretion.5
The promise by the media to provide govern-
ment officials with massive publicity and the pub-
lic's voracious appetite for 'reality-based' police
shows are now threatening the protection of
privacy guaranteed by the Fourth Amendment and
the case law interpreting it.6 Two Federal Circuit
Courts of Appeals, the Second and the Ninth, have
recently taken affirmative steps to curtail the insid-
ious practice of law enforcement officers entering
the private property of individuals under investiga-
tion with television cameras in tow. In Ayeni v
Mottola, 35 F3d 680 (2d Cir. 1994, cert. denied,
514 US 1062 (1995),7 and Berger v Hanlon, 129
F3d 505 (9th Cir. 1997),8 both courts held that a
search of private property videotaped by commer-
cial television cameras is unconstitutional, and the
federal officers involved are not protected from
suit or liability by qualified immunity. The
Berger
court further held that the media participants may
be held liable in damages for violating constitu-
tional rights for acting 'under color of federal law'.9
The authors of this article served as co-lead coun-
sel in both of these cases.10
Fourth Amendment jurisprudence has tradition-
ally focused on reasonableness, and whether the
action in issue is in furtherance of
a
legitimate law
enforcement purpose. The actions of the federal
officers in the Ayeni and Berger cases were not
motivated by law enforcement goals, but were
undertaken to create television entertainment and
were, thus, patently unreasonable.11 As noted by
the Second Circuit in Ayeni v
Mottola,
'A private
home is not a sound stage for law enforcement
theatricals.'12
This article focuses on these pivotal decisions
and the strong historical underpinnings upon
which these holdings are based as well as the very
real problems collaboration between the press and
the police pose to individual privacy. This article
will next consider the en
banc
Fourth Circuit deci-
sion in Wilson v Layne13 which refused to decide
the Fourth Amendment issues resolved in Ayeni
and
Berger
but nonetheless shielded federal officers
from liability for bringing
Washington
Post reporters
into a private home during an abortive attempt to
effect an arrest pursuant to an arrest warrant. The
article will then note the US Supreme Court
actions in
Berger
and
Wilson
v Layne.
THE AYENI CASES
The Ayeni case arose from a search in March 1992,
by armed Secret Service Agents, of a credit-card
fraud suspect's home in Brooklyn, New York. The
agents brought along a CBS camera crew on
assignment for the programme 'Street Stories' to
video and audiotape the search. They did so in
spite of explicit direction of the Assistant United
States Attorney in charge of the investigation 'not
to permit such an adventure'.14
One of the agents wore a wireless microphone
and provided a running commentary of the pro-
ceedings. The suspect, Babatunde Ayeni, was not
at home, but his wife, clad only in a dressing
gown, and their five-year-old son were present.
Both were visibly shaken by the agents' invasion
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