In an effort to gain a larger viewing audience, members of media have resorted to news gathering techniques that require a more aggressive and intrusive stance. This type of news gathering has given rise to a new breed of television programs that show actual, real-life drama. Shows such as COPS and L.A.P.D: Life On the Beat, where actual camera crews accompany law-enforcement officers as they carry out their duties, are becoming more popular and prevalent on television today. In some instances, camera crews actually follow the officers into the home of private individuals to get total coverage of the incident. However, a recent question at issue is whether the media’s presence during the execution of a search warrant of a private home was in violation of the Fourth Amendment?¹ Furthermore, are the law-enforcement officers involved, who allowed the intrusion to take place, protected from civil liability under qualified immunity?²

The recent ruling issued by the Supreme Court in Wilson v. Layne,³ may serve as a hollow victory for the proponents of citizen rights and governmental accountability. This case, heard by the Supreme Court on March 24, 1999, involved a similar discussion of the legitimacy of media presence during the execution of a search warrant of a private dwelling. The Supreme Court had the task of deciding whether the execution of this search warrant violated the Fourth Amendment⁴ rights of the Wilson’s, the tenants of the house. Furthermore, the court also had to determine whether or not the law-enforcement officers involved were protected, under qualified immunity, from liability of damages suffered by the Wilson’s due to the presence of the media during the execution of the search warrant.

On April 14, 1992, both federal and state law enforcement officials executed a search warrant for the apprehension of one Dominic Jerome Wilson, the son of the building’s occupants. A search warrant was issued by a magistrate and obtained by the officers prior to the officers execution of the warrant. The warrant stated the following:

In addition to the law-enforcement agents, two newspaper reporters, unnamed in the warrant, accompanied the law-enforcement officials to document the execution of the warrant. One of the news reporters was outfitted with a still-shot camera. The reporters were gathering information as part of a two-week (expose).

The execution of the warrant took place in the early morning. Upon entering the house, the law enforcement officers encountered Mr. Wilson, wearing only his undergarments, and subdued him to the floor. In the meantime, Mrs. Wilson emerged from the back of the house only wearing a nightgown. The subject of the warrant, Dominic Jerome Wilson, was not found at the premises.

Subsequently, the Wilson’s have filed a civil action seeking compensatory damages against the law-enforcement officials. The Wilson’s are claiming that their Fourth Amendment rights were violated by the media’s presence during the execution of the search warrant.

Historically, the Fourth Amendment⁶ was derived out of the excessive use of general warrants imposed upon the American colonies by the King of England. These general warrants permitted government officials from England to enter into any private dwelling or property and search for anything they wished for.⁷ In addition, the general warrants provided the English officials with complete immunity, from prosecution, to enter into the private homes of individuals.⁸ Out of these abuses stemming from the use of general warrants by the King of England, the United States afforded protection to its citizens from general warrants and unreasonable governmental intrusion into the private life of individuals by establishing the Fourth Amendment.⁹

Search warrants today are in no way similar to that of the general warrants used in pre-Revolutionary Colonial America. The Fourth Amendment’s interpretation has been expanded and clarified by the courts over time. As noted in the Fourth Amendment, search warrants must be authorized by a judge or magistrate.¹⁰ After America had established it independence from England, it was no longer sufficient for search warrant to be authorized by anyone other than that of a magistrate or judge, under oath.¹¹ Later, officers executing a search warrant were "limited to those actions expressly authorized by the warrant,"¹² or "reasonably necessary for its execution."¹³ Thus, officers are only permitted to perform actions that are expressed in the search warrant. The Courts have increasingly moved towards the elimination of officer discretion with regards to what and where search warrant is to be executed. Lastly, federal statutes have established that a search warrant can only be executed by the following person(s): "(1) the person to whom the warrant is directed; (2) any officer authorized by law to execute search warrant; or (3) some other person aiding a person under (1) or (2) who is present and acting in execution of the warrant."¹⁴ If individuals are not named on the warrant, not an authorized law- enforcement official, or not aiding in the execution of the warrant, their presence is not justified and any search that takes place under such circumstances is in violation of 18 U.S.C.A 3105,3106.

With regards to the Wilson case, can one conclude that the presence of the media served as a law enforcement objective and provided necessary assistance for the execution of the search warrant? One such response to this question has given rise to the notion that the media did serve a law-enforcement objective. Some have concluded that a reasonable officer might view the media’s presence as serving a legitmate law enforcement objective such as "affording protection to the officers by reducing the possibility that the target of a warrant will resist arrest in face of recorded evidence of his actions," and "to facilitate accurate reporting that improves public oversight of law-enforcement activities which helps deter crime as well as improper conduct by law-enforcement officials."¹⁵ However, the police officers involved in the search of the Wilson home contend that the reports "were not involved in executing the warrant but were mere bystanders."¹⁶ The question at issue is whether the law-enforcement purpose being described outweighs the rights of the Wilson’s? The Courts have been quite clear on this issue.¹⁷

In the Wilson case, the Courts determined that the presence of the media appears to be in clear violation of the Fourth Amendment.¹⁸ First of all, the media is not named in the warrant and secondly, the media, by the officer’s own admissions, did not provide any law-enforcement objective nor did they provide a necessary assistance for the execution to be carried out. A federal court ruled that the presence of an unnamed third party was not a violation of the Fourth Amendment¹⁹ only if the third party provided necessary assistance for the execution of the warrant.²⁰ The Courts would appear to agree that had the news reporters provided any specific knowledge and or necessary assistance with regards to the execution of the warrant that another officer(s) could not have provided, the presence of the media may have been justifiable.²¹ However, this was not the case with regards to the Wilson situation. The law-enforcement officers violated the Fourth Amendment²² rights of the Wilson’s when they permitted the media to enter into the home of the Wilson’s during the execution of a search warrant.

The second issue that needed to be addressed by the Supreme Court, with respect to the Wilson case, was whether or not the officers involved could be held liable for damages caused to the Wilson’s during the execution of a warrant?

Governmental officials, performing their specified functions, are afforded qualified immunity from liability stemming from civil damages suffered by others to the extent that the officer’s actions "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."²³ Secondly, qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law."²⁴ Lastly, a federal court ruled that law-enforcement officers are protected from "bad guesses in gray areas" and liable "for transgressing bright lines."²⁵

On April 14, 1992, the officers conducting the execution of the search warrant were only protected against civil liability, to the extent that their actions did not violate any established statutory or constitutional rights that a reasonable person would have known.²⁶ The officers involved claim that at the time of the incident, April 1992, the media’s presence during the execution of a search warrant was not established as being a clear violation of any statutory or constitutional right, as alleged in the Harlow case. Furthermore, the officers elude to the ruling handed down by the Fourth Circuit. That a law is clearly established to the extent that the action(s) transgresses a bright line when the law has "been authoritatively decided by the Supreme Court, the appropriate United States Court of Appeals, or the highest court of the state."²⁷

The Wilson’s contend that it is not sufficient for the right allegedly violated "to have been previously held unlawful;" rather, "in the light of pre-existing law the unlawfulness must be apparent."²⁸ Furthermore, as an officer of the law, is it unreasonable to expect that the officer explicitly have knowledge of the laws that he/she is upholding and enforcing? Lastly, "where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant necessary relief."²⁹ According to Bivens, if the Wilson’s have established and proved that their Fourth Amendment³⁰ rights have been violated, they are justified in seeking compensatory damages from the officers involved. Clearly, if Bivens³¹ is the controlling case, the Wilson’s are entitled to compensatory damages and conversely, the officers should not be protected under qualified immunity.

On May 24, 1999, the Supreme Court ruled unanimously, in the Wilson case, that the media’s presence during the execution of the search warrant was in clear violation of the Wilson’s Fourth Amendment³² rights. However, in spite of the implications of Bivens³³, the Court ruled that the officers were protected, under qualified immunity, from civil liability stemming from the violation of the Wilson’s Fourth Amendment³⁴ rights.