Zurcher v. Stanford Daily
436 U.S. 547, 98 S. Ct. 1970, 56 L. Ed.2d 525 (1978)

  • The police were involved in a violent clash with anti-war protesters on the Stanford campus.
  • The police believed that the student newspaper had photographs of the incident, and they wanted the photos in order to identify the protesters. They got a warrant and searched the newspaper’s office.
    • No materials were found or removed from the premises.
  • The Stanford Daily sued the police and the District Attorney for violating their 1st Amendment and 4th Amendment rights.
    • The standard protection against unreasonable searches is to force the police to get a warrant. Stanford Daily argued that there should be an even higher procedural standard because they were an innocent third party.
  • The Trial Court found for The Stanford Daily. The police appealed.
    • The Trial Court found that the 4th Amendment forbade the issuance of a warrant to search for materials in the possession of one not suspected of a crime except upon a showing of probable cause.
    • The Trial Court found that the 1st Amendment prohibits a search of a newspaper’s office except upon a clear showing that important materials would otherwise be destroyed or removed and that a restraining order would be futile.
    • The Trial Court suggested that a subpoena duces tecum be issued instead.
      • A subpoena duces tecum means an order by the court requiring that a person bring certain documents or other evidence to the court.
    • The Trial Court suggested that since the third party was not on trial, the exclusionary rule was not a deterrent to overzealous police searches.
  • The US Supreme Court reversed and held the searches to be constitutional.
    • The US Supreme Court held that a third party search did not violate the 4th Amendment.
      • The Court found that 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.
      • The Court held that such searches, accompanied by warrants, were legitimate when it had been “satisfactorily demonstrated to the magistrate that fruits, instrumentalities, or evidence of crime is located on the premises.”
    • The Court also found that the Framers of the Constitution “did not forbid warrants where the press was involved,” so there was no 1st Amendment violation.
  • In a dissent, it was argued that searching a newspaper was a clear imposition on the ability of that newspaper to function and was therefore a clear 1st Amendment violation.
    • A warrant allows the police to ransack the newspapers files and uncover all sorts of information. A subpoena duces tecum would allow the newspaper to produce the specific documents that the police are looking for while maintaining the privacy interests required for freedom of the press.
  • After this case was decided, there was an uproar in the publishing industry, and they lobbied Congress to pass the Privacy Protection Act, which gave Statutory protections similar to what Stanford Daily was arguing for in this case.
  • Should an obviously innocent person’s privacy have more presumptive protection against someone suspected of guilt? Doesn’t everyone have the same reasonable expectation of privacy, or does suspicion reduce a person’s reasonable expectation of privacy?
    • The 4th Amendment is about balancing privacy vs. law enforcement interests. That balance is the same regardless of whether the owner of the place is a suspect or not.
    • It is sometimes not clear if a person is involved or not until the search is complete.