The press showed up during the search and were permitted limited access, but that is no ground to suppress

The police were executing a search warrant for stolen property, and it turned out to be a massive enterprise, and the press got word of it and showed up and camped out in the front yard, on the curtilage but in a public area. Some were permitted more access. While this is contrary to Wilson v. Layne, it does not rise to the level of a serious enough violation to warrant exclusion of any of the evidence. United States v. Duenas, 2007 U.S. Dist. LEXIS 95721 (D. Guam December 21, 2007):

However, there was testimony that Guam Police Officer Scott Wade escorted certain media members beyond the front yard. In those instances, where members of the media were escorted beyond the front yard, the question facing the court is whether the evidence should be suppressed on this basis. Moreover, the court is concerned that evidence seized from the residence was later placed on the front yard in a “staging area.” In United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), the Court wrote, “[w]hether the exclusionary sanction is appropriately imposed in a particular case, our decisions make clear, is an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.” Id. at 906.

The Court in Wilson said “[w]e have no occasion here to decide whether the exclusionary rule would apply to any evidence discovered or developed by the media representatives.” Wilson, 526 U.S. at 614 n.2. The Court was careful to point out that the violation of the Fourth Amendment was the presence of the media in the home, not the presence of the police. Id. This footnote suggests that evidence obtained by the police when the media is just present is not subject to the exclusionary rule, while it may remain an open question about whether evidence obtained by the media is subject to the exclusionary rule.

As mentioned, members of the media were present as the search of Defendants’ residence was in progress. There is no indication that the presence of the media somehow expanded the scope of the search (the search was actually carried out by the police themselves) beyond that allowed by the terms of the warrant. Nor is there any allegation that the members of the media aided the search, touched, moved, or handled anything in the residence. The court has found no caselaw where the remedy to such a Fourth Amendment violation is exclusion of the evidence. “Each time the exclusionary rule is applied it exacts a substantial social cost for the vindication of Fourth Amendment rights. Relevant and reliable evidence is kept from the trier of fact and the search for truth at trial is deflected.” Rakas v. Illinois, 439 U.S. 128, 140, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978).

In United States v. Hendrixson, 234 F.3d 494 (11th Cir. 2000), the defendant sought to suppress evidence obtained during the search of her residence because the police had allowed the news media to be involved. In light of Wilson, the court held that the presence of the reporter violated the defendant’s Fourth Amendment rights. Id. at 496. However, the court went on to find that the reporter had not aided in the execution of the warrant, or expanded the scope of the search beyond that allowed by the terms of the warrant. The reporter arrived after the search was in progress and did not move, touch or handle anything in the residence. Accordingly, the court found that the police had conducted the search within the parameters of the warrant, and that the evidence obtained during the search was not subject to the exclusionary rule because the officers discovered the evidence, not the reporter.

Absent finding any caselaw suggesting otherwise, the court finds that rather than excluding evidence for a violation of the Defendants’ Fourth Amendment rights, the better remedy may be found in civil litigation, such as suits under 42 U.S.C. § 1983 and Bivens actions against federal law enforcement. There was no evidence that a media member discovered or developed any evidence. It appears that the police conducted the search within the parameters of the warrant, and the evidence obtained during the search should not be subject to the exclusionary rule. Accordingly, the motion is DENIED on this basis.