Supreme Court to Hear of Law Enforcement, Media Collusion

Published April 1, 1999

“The government believes it is justified in bringing the media along on searches and arrests without authorization in the warrant,” explained Reed Hopper of the Pacific Legal Foundation (PLF), “and the media believe they have the right to go anywhere the police do, no matter how much they intrude on personal privacy.”

PLF has filed a friend of the court brief on behalf of Paul and Irma Berger, whose Montana ranch was invaded in March 1993 by ten vehicles filled with federal agents and Cable News Network (CNN) reporters. The federal agents acted on a tip that Mr. Berger had poisoned eagles and buried them on his property.

Even before the agents had secured a search warrant, the Assistant U.S. Attorney signed a contract permitting the reporters to join the raid. The contract also allowed CNN to retain proprietary ownership over any audio or visual materials its reporters recorded at the scene.

At a pre-raid briefing, law enforcement officials provided reporters with details from the sealed warrant authorizing the search of the Bergers’ property. Federal agents apparently discussed ways to conceal from the Bergers the identity of the newsmen.

The search itself was a grueling, day-long ordeal for Mr. Berger, 71, and Mrs. Berger, 81. They were interrogated on camera and threatened with imprisonment if they did not cooperate. Federal agents conducted photo shoots with the media and insulted the Bergers in taped interviews. The identity of the reporters was concealed throughout the search.

Mr. Berger was charged with three felony counts of killing protected species. The search failed to produce convincing evidence, however, and he was not convicted. The acquittal did not prevent CNN from repeatedly airing an edited version of the raid, implying the Bergers had repeatedly killed eagles. The tape was broadcast internationally.

The Bergers filed a civil action against the federal agents and the news organization for violating their civil rights, and won. The Ninth Circuit Court of Appeals observed, “this search stands out as one that at all times was intended to serve a major purpose other than law enforcement. . . . [T]he federal agents obtained the warrant without disclosing the contract, the planned press presence, or the media’s purpose.”

Berger v. Hanlon is now before the Supreme Court. In its amicus brief, Pacific Legal Foundation argues that Fourth Amendment protections against illegal search and seizure should protect citizens against media intrusions during the execution of warrants.

For more information …

contact the Pacific Legal Foundation, 2151 River Plaza Drive #305, Sacramento, CA 95833; phone 916/641-8888; fax 916/920-3444; e-mail [email protected]. Or visit the group’s Web site at