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I'm interested in the New York City jurisdiction.

Imagine a person is involved, or suspected to be involved, in a crime, yet they are not suspected of having committed any crime. For example, imagine a journalist that has been sent a letter from a serial killer that they wanted them to publish. I assume it would be natural for the police to want to look into the journalist, and perhaps search their home and communication devices.

However, if the journalist were to say no, could law enforcement get a search warrant for this? Or in general, if it could be beneficial to an investigation to search the property of an unwilling person, who themselves are not suspected of any crime, is it possible to get a search warrant?

user110391
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4 Answers4

9

Police can get a warrant, if the warrant is supported by "probable cause" to believe that evidence of a crime exists. A separate "probable cause" requirement is that to arrest a person, there must be "probable cause" that they committed a crime. However, the Privacy Protection Act makes it unlawful to search "work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication", unless there is probable cause that the person committed the crime in question. There are similar laws ("shield laws") at the state level. Here is a map which gives you an indication what immunities exist in what states.

user6726
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A search warrant does not have to be served on a suspect

A search warrant may be issued on probable cause that evidence of a crime will be found - there is no requirement that the person or place searched be suspected of involvement. For example, search warrants are routinely served on uninvolved banks when investigating financial crimes, ISPs for hacking crimes etc. in fact, it’s routine practice for businesses to require a warrant before handing over information to avoid breaching privacy law.

Dale M
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See Zurcher v. Stanford Daily, 436 U.S. 547 (1978) in which the United States Supreme Court held that (in summary):

A State is not prevented by the Fourth and Fourteenth Amendments from issuing a warrant to search for evidence simply because the owner or possessor of the place to be searched is not reasonably suspected of criminal involvement. The critical 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 "things" to be searched for and seized are located on the property to which entry is sought.

That established the constitutional floor. However, Congress responded by providing additional protections to journalists via the Privacy Protection Act of 1980 (see generally [ref]). It requires government officials to rely on subpoena rather than a warrant and search and seizure when seeking information from reporters (when those reporters themselves are not suspects of the crime):

[n]otwithstanding any other law,representatives of the government may not search a newsroom for the purpose of obtaining work product or documentary materials relating to a criminal investigation or criminal offense, if there is reason to believe that the work product belongs to someone who will publish it in a "public communication, in or affecting interstate or foreign commerce

Consent searches

All of that has to be read in the context of what a Fourth Amendment search is. A search here is when there is a violation of one's reasonable expectation of privacy (or, post-Jones, also would include a trespassory search). If the person in control of the newsroom and its contents consents to the "search" it's not even a Fourth Amendment search (although somewhat confusingly, it's also referred to as a "consent search").

Jen
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Could law enforcement get a search warrant for this?

Yes

The purpose of this type of search warrant is to locate evidence - regardless of whether or not, for example, the person possessing it or a resident in property being searched is suspected of any offence.

Evidence held by a journalist falls in to two categories:

  • "Excluded material" under section 11 Police and Criminal Evidence Act 1984 (PACE) is material held in confidence, such as information from a confidential source.

  • "Special procedure material" under section 14 includes "journalistic material" defined at section 13 being material acquired or created for the purposes of journalism (not held in confidence), such as a letter from a serial killer who wishes it published in the press.

The process for obtaining a search warrant for either or both categories is the same, and may be found at section 9 and from paragraph 12 onwards in Schedule 1 PACE, which is quite convoluted but may be summarised as:

  • The police make the application before a circuit judge unlike an application for a "regular" search warrant, which would be before a magistrate, to ensure a higher level of judicial scrutiny and oversight.

  • The application has to satisfy the judge that the "access condition" that there are reasonable grounds for believing that there is material which consists of or includes excluded material or special procedure material on premises specified in the application."

Also...

PACE sets out certain safeguards and mandatory requirements, including the need "to identify, so far as is practicable, the articles ... to be sought". This part of the application is important as it sets limits and parameters for what can be searched for and then seized as evidence. So if the evidence being sought is just a letter on paper, then it is highly unlikely the warrant will permit a search of any communication devices.