UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CHARLES H. WILSON; GERALDINE E.
WILSON; RAQUEL WILSON, next
friend/mother of Valencia Snowden,
a minor,
Plaintiffs-Appellees,
v.
HARRY LAYNE, Deputy, United
States Marshal, Supervisor for the
Washington Area, Operation
Gunsmoke; JOSEPH L. PERKINS;
JAMES A. OLIVO, No. 96-1185
Defendants-Appellants,
and
RAYMOND M. KIGHT, Sheriff,
Montgomery County, Maryland;
JOHN DOE, Unknown Sheriff's
Deputies; JOHN DOE, Unknown U.S.
Marshals; UNITED STATES OF
AMERICA; ERIC E. RUNION; MARK A.
COLLINS; BRIAN E. ROYNESTAD,
Defendants.
CHARLES H. WILSON; GERALDINE E.
WILSON; RAQUEL WILSON, next
friend/mother of Valencia Snowden,
a minor,
Plaintiffs-Appellees,
v.
MARK A. COLLINS; ERIC E. RUNION;
BRIAN E. ROYNESTAD,
Defendants-Appellants,
and
No. 96-1188
RAYMOND M. KIGHT, Sheriff,
Montgomery County, Maryland;
JOHN DOE, Unknown Sheriff's
Deputies; HARRY LAYNE, Deputy,
United States Marshal, Supervisor
for the Washington Area, Operation
Gunsmoke; JOHN DOE, Unknown
U.S. Marshals; UNITED STATES OF
AMERICA; JOSEPH L. PERKINS; JAMES
A. OLIVO,
Defendants.
Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-94-1718-PJM)
Argued: March 3, 1998
Decided: April 8, 1998
Before WILKINSON, Chief Judge, and WIDENER,
MURNAGHAN, ERVIN, WILKINS, NIEMEYER, HAMILTON,
LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.
_________________________________________________________________
Reversed by published opinion. Judge Wilkins wrote the majority
opinion, in which Chief Judge Wilkinson and Judges Niemeyer, Lut-
tig, and Williams joined. Judge Widener wrote a concurring opinion.
Judge Murnaghan wrote a dissenting opinion, in which Judges Ervin,
Hamilton, Michael, and Motz joined.
_________________________________________________________________
COUNSEL
ARGUED: Richard Adams Cordray, Grove City, Ohio, for Appel-
lants. Richard Alan Seligman, Washington, D.C., for Appellees. ON
BRIEF: Stuart M. Nathan, John B. Howard, Jr., OFFICE OF THE
ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland,
for Appellants. David H. Coburn, James S. Felt, STEPTOE & JOHN-
SON, L.L.P., Washington, D.C.; Arthur B. Spitzer, AMERICAN
CIVIL LIBERTIES UNION OF THE NATIONAL CAPITAL
AREA, Washington, D.C., for Appellees.
_________________________________________________________________
OPINION
WILKINS, Circuit Judge:
Charles H. Wilson and Geraldine E. Wilson (the Wilsons)1 brought
this action against federal and state law enforcement officers and oth-
ers not pertinent to this appeal. The Wilsons allege that their Fourth
and Fourteenth Amendment rights were violated when officers
entered their home and sought to execute an arrest warrant for their
son. See 42 U.S.C.A. ' 1983 (West 1994); Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 395-97
(1971). The district court granted summary judgment in part in favor
of the officers, but refused to do so on the Wilsons' claim that the
officers violated the Fourth Amendment by permitting two newspaper
reporters to accompany them into the Wilsons' home and photograph
the officers' attempt to execute the arrest warrant. The officers appeal
from the decision of the district court denying them qualified immu-
nity with respect to this claim. We reverse.2
I.
The material facts are not disputed. On April 14, 1992, federal and
state law enforcement agents were engaged in a joint effort to appre-
hend fugitives with a history of armed, violent, criminal conduct. A
team composed of Joseph L. Perkins and James A. Olivo of the
United States Marshals Service and Mark A. Collins, Brian E. Royne-
stad, and Eric E. Runion of the Montgomery County, Maryland Sher-
iff's Department was formed to execute an outstanding arrest warrant.
The warrant stated:
THE STATE OF MARYLAND, TO ANY DULY AUTHO-
RIZED PEACE OFFICER, GREETINGS: YOU ARE
HEREBY COMMANDED TO TAKE DOMINIC JEROME
WILSON IF HE/SHE BE FOUND IN YOUR BAILIWICK
....
J.A. 124. In addition, two newspaper reporters, one outfitted with a
stillshot camera, were to accompany the officers to observe and
chronicle the execution of the warrant.3 The reporters' participation
was part of a two-week, news-gathering activity by the newspaper.
During the early morning hours, the officers proceeded to the
address listed in police reports, as well as probation and court records,
as the fugitive's home. Upon entering the residence, the officers
encountered a man dressed only in undergarments who was very
angry because of the intrusion. The confrontation between the man
and the officers ultimately resulted in the officers subduing the man
on the floor. In the meantime, a woman dressed in a sheer nightgown
emerged from the back of the house. These two individuals were later
identified as the Wilsons. The subject of the warrant, the Wilsons'
son, was not present. Throughout these events, the reporters observed
and photographed what transpired.4
The Wilsons subsequently brought this action against the federal
and state officers who comprised the arrest team that entered their
home; the team's supervisor, Harry Layne; and others not pertinent
to this appeal. The Wilsons asserted that their constitutional rights
under the Fourth and Fourteenth Amendments were violated by the
officers' actions in three ways: (1) the officers used excessive force
in attempting to execute the arrest warrant; (2) the officers lacked
probable cause to believe that the fugitive would be found at the Wil-
sons' home; and (3) the officers permitted representatives of the
media to enter the Wilsons' home to observe and photograph the exe-
cution of the arrest warrant. Ruling on the officers' motion for sum-
mary judgment, the district court dismissed the allegations of
excessive force and lack of probable cause, concluding that the evi-
dence viewed in the light most favorable to the Wilsons demonstrated
that the amount of force the officers employed was reasonable and
that the officers possessed probable cause to believe that the fugitive
they sought would be found at the Wilsons' home. However, the dis-
trict court rejected the officers' assertions that allowing the reporters
to enter the Wilsons' home without their consent did not violate their
constitutional rights. Furthermore, the district court refused to accept
the officers' alternative argument that, at a minimum, they were enti-
tled to qualified immunity because in April 1992, the law was not
clearly established that permitting members of the media to accom-
pany law enforcement officers into a private residence during the exe-
cution of an arrest warrant was unconstitutional. The officers appeal
this latter ruling.5
II.
A.
Government officials performing discretionary functions are enti-
tled to qualified immunity from liability for civil damages to the
extent that "their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have
known." E.g., Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982);
Winfield v. Bass, 106 F.3d 525, 530 (4th Cir. 1997) (en banc). Quali-
fied immunity protects "all but the plainly incompetent or those who
knowingly violate the law." Malley v. Briggs , 475 U.S. 335, 341
(1986). It protects law enforcement officers from"bad guesses in gray
areas" and ensures that they are liable only"for transgressing bright
lines." Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992).
Thus, although the exact conduct at issue need not have been held to
be unlawful in order for the law governing an officer's actions to be
clearly established, the existing authority must be such that the unlaw-
fulness of the conduct is manifest. See Anderson v. Creighton, 483
U.S. 635, 640 (1987); Pritchett v. Alford, 973 F.2d 307, 314 (4th Cir.
1992) (explaining that "[t]he fact that an exact right allegedly violated
has not earlier been specifically recognized by any court does not pre-
vent a determination that it was nevertheless `clearly established' for
qualified immunity purposes" and that "`[c]learly established' in this
context includes not only already specifically adjudicated rights, but
those manifestly included within more general applications of the
core constitutional principle invoked"). The law is clearly established
such that an officer's conduct transgresses a bright line when the law
has "been authoritatively decided by the Supreme Court, the appropri-
ate United States Court of Appeals, or the highest court of the state."
Wallace v. King, 626 F.2d 1157, 1161 (4th Cir. 1980); see Cullinan
v. Abramson, 128 F.3d 301, 311 (6th Cir. 1997) (explaining that
"[o]rdinarily, at least, in determining whether a right is `clearly estab-
lished' this court will not look beyond Supreme Court and Sixth Cir-
cuit precedent"), petition for cert. filed , 66 U.S.L.W. ___ (U.S. Feb.
19, 1998) (No. 97-1342); Jenkins ex rel. Hall v. Talladega City Bd.
of Educ., 115 F.3d 821, 826 n.4 (11th Cir. 1997) (en banc) (explaining
that "the law can be `clearly established' for qualified immunity pur-
poses only by decisions of the U.S. Supreme Court,[the] Eleventh
Circuit Court of Appeals, or the highest court of the state where the
case arose"), cert. denied, 118 S. Ct. 412 (1997).
In analyzing an appeal from the rejection of a qualified immunity
defense, our first task is to identify the specific right that the plaintiff
asserts was infringed by the challenged conduct. See Taylor v.
Waters, 81 F.3d 429, 433 (4th Cir. 1996). The court then must con-
sider whether, at the time of the claimed violation, that right was
clearly established and "`whether a reasonable person in the official's
position would have known that his conduct would violate that
right.'" Id. (quoting Gordon v. Kidd , 971 F.2d 1087, 1093 (4th Cir.
1992)). Our review of the denial of summary judgment based on qual-
ified immunity is de novo. See Pritchett, 973 F.2d at 313.
B.
The constitutional right that the Wilsons claim the officers violated,
defined at the appropriate level of specificity, is their Fourth Amend-
ment right to avoid unreasonable searches or seizures resulting from
the officers' decision to permit members of the media who were not
authorized to execute the warrant to enter into a private residence,
without the homeowners' consent, to observe and photograph the exe-
cution of an arrest warrant. The question before us, then, is whether
in April 1992 this right was clearly established and whether a reason-
able officer would have understood that the conduct at issue violated
it.
The Fourth Amendment provides in pertinent part,"The right of
the people to be secure in their ... houses ... against unreasonable
searches and seizures, shall not be violated." U.S. Const. amend. IV.
By 1992, the Supreme Court had ruled that an entry into a home with-
out a warrant is per se unreasonable unless an exception to the warrant
requirement, such as exigent circumstances, exists. See Payton v.
New York, 445 U.S. 573, 588-90 (1980); Coolidge v. New Hampshire,
403 U.S. 443, 454-55 (1971). And, it is equally well settled that an
officer executing a warrant is limited to those actions expressly autho-
rized by the warrant, see Bivens, 403 U.S. at 394 n.7, or implicitly
authorized because they are reasonable to advance a legitimate law
enforcement purpose relating to the warrant or to ensure the officer's
or the public's safety, see Michigan v. Summers , 452 U.S. 692, 705
(1981). See also Lawmaster v. Ward, 125 F.3d 1341, 1349 (10th Cir.
1997) (explaining that "because the touchstone of the constitutionality
of an officer's conduct during a search is reasonableness, when exe-
cuting a search warrant, an officer is limited to conduct that is reason-
ably necessary to effectuate the warrant's purpose").
Here, the officers entered the Wilsons' home pursuant to a valid
arrest warrant. The officers did not exceed the scope of the warrant
by permitting the reporters who accompanied them into the Wilsons'
home to engage in activities that the officers could not themselves
have undertaken consistent with the warrant. Specifically, the report-
ers did not conduct a search of, or intrude into, any areas of the Wil-
sons' home into which the officers would not have been permitted to
go in executing the arrest warrant. Further, the reporters' photographs
of the events did not amount to a seizure. The Supreme Court has
indicated that a seizure occurs only when there has been a "meaning-
ful interference with an individual's possessory interests in ... prop-
erty." United States v. Jacobsen, 466 U.S. 109, 113 (1984); see also
Arizona v. Hicks, 480 U.S. 321, 324 (1987) (recording the serial num-
bers on equipment "did not meaningfully interfere with respondent's
possessory interest in either the serial numbers or the equipment, and
therefore did not amount to a seizure" (internal quotation marks omit-
ted)). But see Ayeni v. Mottola, 35 F.3d 680, 688 (2d Cir. 1994). An
application of this definition indicates that the photographic images
captured by the reporters were not seized within the meaning of the
Fourth Amendment. But, just as importantly for our purposes, it cer-
tainly was not clearly established that photographing an arrest consti-
tuted a seizure of the images recorded. Thus, reasonable officers
under these circumstances had no clearly established law from the
Supreme Court, this court, or the Court of Appeals of Maryland from
which they necessarily understood that they exceeded the scope of an
arrest warrant by permitting reporters to engage in activities in which
they themselves could have engaged consistent with the warrant.
Furthermore, even if we were to agree with the Wilsons that in
1992 it was clearly established that the Fourth Amendment was vio-
lated if officers permitted third parties who were not expressly autho-
rized by the warrant and who were not assisting reasonable law
enforcement efforts related to the execution of the warrant to accom-
pany them into a residence, we could not conclude that it was clearly
established that the conduct in which these officers engaged mani-
festly fell within the ambit of that rule. When this incident took place
in 1992, there was no clear law from the Supreme Court, this court,
or the Court of Appeals of Maryland establishing that permitting
reporters to observe and photograph the events surrounding the exe-
cution of an arrest warrant may not serve a legitimate law enforce-
ment purpose related to execution of the warrant. And, reasonable law
enforcement officers might conclude that permitting media represen-
tatives to observe and photographically record the execution of an
arrest warrant does serve such a purpose. For example, the purpose
may be served by affording protection to the officers by reducing the
possibility that the target of a warrant will resist arrest in the face of
recorded evidence of his actions. Additionally, it could be asserted
that facilitating accurate reporting that improves public oversight of
law-enforcement activities is a legitimate law enforcement purpose
because it deters crime, as well as improper conduct by law enforce-
ment officers. In any event, we conclude that reasonable law enforce-
ment officers could have believed that permitting the reporters to
observe and photograph the execution of the arrest warrant advanced
a legitimate law enforcement purpose related to the execution of the
warrant.
The dissent acknowledges that neither the Supreme Court nor this
court had in 1992 addressed whether law enforcement officers violate
the Fourth Amendment by permitting media representatives to accom-
pany them into a private residence to observe and photograph the offi-
cers' execution of an arrest warrant. The dissent nevertheless
contends that our conclusion that the officers are entitled to qualified
immunity is erroneous, asserting that it was clearly established that
the Fourth Amendment prohibited government agents from bringing
a private citizen into a home to conduct an independent search or sei-
zure. In support of its argument, the dissent points to the decision of
this court in Buonocore v. Harris, 65 F.3d 347 (4th Cir. 1995),6and
to those of three other courts of appeals holding on facts similar to
those at issue here that officers were not entitled to qualified immu-
nity, see Berger v. Hanlon, 129 F.3d 505 (9th Cir. 1997);7 Ayeni v.
Mottola, 35 F.3d 680 (2d Cir. 1994);8 Bills v. Aseltine, 958 F.2d 697
(6th Cir. 1992).9
The decisions on which the dissent relies, however, do not per-
suade us that the officers are not entitled to qualified immunity. Reli-
ance on decisions issued after the events underlying this litigation,
whether the decisions were decided by this court or others, is inappro-
priate. See Mitchell v. Forsyth, 472 U.S. 511, 533-35 (1985). Cer-
tainly law enforcement officers need not correctly anticipate future
constitutional rulings on pain of personal liability. Further, as noted
above, reliance on decisions from other circuits to determine that a
given proposition of law is clearly established is inappropriate as a
general matter, and we find no basis to depart from the general rule
in this instance. Thus, the decisions of the other circuit courts of
appeals cannot support a conclusion that the law was clearly estab-
lished in our circuit. And finally, subsequent to the events giving rise
to this litigation, at least one other court of appeals has held on similar
facts that law enforcement officers were entitled to qualified immu-
nity. See Parker v. Boyer, 93 F.3d 445, 447 (8th Cir. 1996), cert.
denied, 117 S. Ct. 1081 (1997). Relying on the dearth of authority
holding the conduct in question to be violative of the Fourth Amend-
ment, the existence of decisions holding that these types of actions by
law enforcement officers did not transgress constitutional principles,10
and the lack of Supreme Court direction on the question, the Parker
court held that officers were entitled to qualified immunity. See id.
Given that reasonable jurists can differ on this question, we cannot
say that the law was so clear that a reasonable officer must have
known his actions transgressed constitutional bounds.
In asserting that no reasonable officer could have believed that the
reporters were serving a legitimate law enforcement purpose, the dis-
sent misunderstands the distinction between the reporters' aid in the
actual execution of the warrant and other legitimate law enforcement
purposes that the reporters may have facilitated by accompanying the
officers to observe and record the attempt to execute the warrant. The
dissent equates these two distinct concepts, assuming that unless, as
a matter of historical fact, the officers intended for the reporters actu-
ally to assist in the execution of the arrest warrant, reasonable officers
must have known "full well that the reporters served no legitimate law
enforcement purpose." Dissent at 27. In support of its argument that
the officers did not intend for the reporters to aid in the actual execu-
tion of the warrant, the dissent quotes a portion of the statement of
the facts in the panel opinion, which observed that the reporters
accompanied the officers as part of a two-week news gathering opera-
tion that was not designed to serve a law enforcement purpose. The
dissent also relies on a portion of the officers' brief in which they
acknowledge that the reporters "were not involved in executing the
warrant" but instead were "mere bystanders." Id. at 27 (internal quota-
tion marks omitted).
While it is undoubtedly true that neither the reporters nor the offi-
cers envisioned that the reporters would provide assistance to the offi-
cers in actually executing the arrest warrant, it is equally true that
reasonable officers may have perceived that permitting the reporters
to accompany them served a legitimate law enforcement function.
Indeed, the media ride-along policy pursuant to which the reporters
accompanied the officers indicated that keeping the public informed
of the activities of the Marshals Service was a duty of that agency and
that media ride alongs advanced that interest. Further, reasonable offi-
cers may have believed that the obvious increase to their safety
afforded by the presence of the reporters constituted a legitimate law
enforcement purpose.11 Moreover, the dissent overlooks that although
the officers have readily acknowledged that there was no intent that
the reporters aid in the execution of the warrant, the officers consis-
tently have maintained that it was reasonable to believe that the
reporters' presence served a legitimate law enforcement purpose:
[I]t is in fact a legitimate function of law enforcement to
facilitate accurate reporting on law-enforcement activities
and to improve public oversight of those activities by use of
the press. These efforts are important because both the
deterrence of crime and the deterrence of improper conduct
by law-enforcement officers are vital to the broader mission.
The formal policy of the United States Marshals Service ...
was directed to these ends.
Reply Brief of Appellants at 6-7 (footnote omitted).
Because the dissent fails to understand the distinction between an
intent that the reporters assist in the actual execution of the warrant
and a reasonable belief that permitting the reporters to accompany the
officers served a legitimate law enforcement purpose, the dissent
incorrectly concludes that no reasonable law enforcement officer who
knew the former could believe the latter. Rather, in our view, a rea-
sonable law enforcement officer apprised of the fact that the officers
did not intend for the reporters to assist in actually executing the war-
rant nevertheless reasonably could have concluded that permitting the
reporters to accompany them while executing the warrant served a
legitimate law enforcement purpose.
III.
We stress that we do not address whether the officers' conduct was
constitutional or appropriate, only whether the legal landscape when
these events occurred was sufficiently developed that it would have
been obvious to reasonable officers that the actions at issue were vio-
lative of the Fourth Amendment. Because in April 1992 it was not
clearly established that permitting media representatives to accom-
pany law enforcement officers into a private residence to observe and
photograph their attempt to execute an arrest warrant would violate
the homeowner's constitutional rights, we hold that these officers are
entitled to qualified immunity. Consequently, we reverse the decision
of the district court refusing to grant summary judgment in favor of
the officers.
REVERSED
_____________________________________________________________________________
FOOTNOTES
1 Raquel Wilson joined the Wilsons as a plaintiff in this action on
behalf of her daughter Valencia Snowden, the Wilson's grandchild who
was present during a portion of the actions that form the basis of this
lawsuit. For ease of reference, however, we refer only to the Wilsons as
prosecuting this litigation.
2 A panel of this court earlier issued a decision reversing the district
court. See Wilson v. Layne, 110 F.3d 1071 (4th Cir. 1997). A majority
of the judges in active service subsequently voted to consider this appeal
en banc. After this hearing, a majority of the judges in active service
voted to rehear this appeal en banc.
3 At the time, the United States Marshals Service had adopted a written
policy permitting members of the news media to "ride along" with its law
enforcement officers in order to observe and record operational missions.
4 These photographs have never been published.
5 The district court denied the Wilsons' request to certify for immediate
appeal its rulings with respect to the allegations of excessive force and
lack of probable cause to permit those issues to be considered in conjunc-
tion with the appeal of the question of the officers' entitlement to quali-
fied immunity. As a result, the only issue pending before us is the
qualified immunity inquiry. And, because the facts are undisputed, this
question presents a purely legal inquiry into whether the law was clearly
established when the underlying events occurred. Thus, we may properly
consider this appeal. See Johnson v. Jones, 515 U.S. 304, 313 (1995);
Winfield v. Bass, 106 F.3d 525, 528-30 (4th Cir. 1997) (en banc).
6 In Buonocore, an opinion decided long after the events at issue here,
officers allowed a security guard to enter a private residence and conduct
an independent search for property not authorized by a warrant.
Buonocore, 65 F.3d at 350-51. In the appeal from the denial of summary
judgment to the officers, we characterized the issue presented as whether
it was clearly established on November 24, 1992 that"Fourth Amend-
ment law prohibited government agents from bringing a private citizen
into Buonocore's home to conduct an independent, general search for
items not identified in any warrant." Id. at 353 (internal quotation marks
omitted). And, we held that it was, reasoning:
[W]e have no doubt that the Fourth Amendment prohibits gov-
ernment agents from allowing a search warrant to be used to
facilitate a private individual's independent search of another's
home for items unrelated to those specified in the warrant. Such
a search is not reasonable. It obviously exceeds the scope of the
required specific warrant and furthermore violates the sanctity of
private dwellings.
Id. at 356 (internal quotation marks omitted). Buonocore, therefore,
addressed the question of whether a third party, who is not authorized by
the warrant to conduct a search, may accompany law enforcement offi-
cers in executing a warrant and undertake an independent search for
items not described in the warrant. Of course, the officers here permitted
no such general independent search by the reporters.
7 In Berger, decided more than five years after the events at issue here,
the Court of Appeals for the Ninth Circuit ruled that officers who permit-
ted media representatives to accompany them in executing a search war-
rant for a private purpose not related to law enforcement efforts in 1993
were not entitled to qualified immunity. See Berger, 129 F.3d at 510-12.
8 In Ayeni, decided in 1994, the Court of Appeals for the Second Cir-
cuit held that it was clearly established in March 1992 that officers vio-
lated the Fourth Amendment when they permitted a television crew to
enter a private residence and film the execution of a search warrant that
provided no authorization for their presence. See Ayeni, 35 F.3d at 684-
86. The court reasoned that although there were no decisions expressly
holding that searching agents violate the Constitution by bringing mem-
bers of the press into a home to observe and report on their activities, it
had
long been established that the objectives of the Fourth Amend-
ment are to preserve the right of privacy to the maximum extent
consistent with reasonable exercise of law enforcement duties
and that, in the normal situations where warrants are required,
law enforcement officers' invasion of the privacy of a home
must be grounded on either the express terms of a warrant or the
implied authority to take reasonable law enforcement actions
related to the execution of the warrant.
Id. at 686. Furthermore, the court held that an objectively reasonable
officer could not have failed to appreciate "that inviting a television crew
--or any third party not providing assistance to law enforcement--to
participate in a search was [not] in accordance with Fourth Amendment
requirements." Id.
9 In Bills, which was decided approximately one month prior to the
incident under review, the court held that law enforcement officers may
violate the Fourth Amendment by permitting a security guard to accom-
pany them into a private residence to execute a search warrant and to
engage in an independent search for items that were not described in the
warrant. See Bills, 958 F.2d at 702-05. The court explained:
[W]here an intrusion is justified, whether by warrant or by prob-
able cause and exigent circumstances, police are temporarily
placed in control of the premises and its occupants. It is as
though the premises were given to the officers in trust for such
time as may be required to execute their search in safety and then
depart. Officers in unquestioned command of a dwelling may
violate that trust and exceed the scope of the authority implicitly
granted them by their warrant when they permit unauthorized
invasions of privacy by third parties who have no connection to
the search warrant or the officers' purposes for being on the
premises. The warrant in this case implicitly authorized the
police officers to control and secure the premises during their
search .... It did not implicitly authorize them to invite a private
security officer to tour plaintiff's home for the purpose of finding
[evidence not specified in the search warrant] ....
Id. at 704-05 (internal quotation marks omitted). Based on this reasoning,
the Court of Appeals for the Sixth Circuit held that the officers' conduct
presented a jury question concerning whether the officers had exceeded
the scope of the search warrant and remanded for further proceedings.
See id. at 705.
10 Early cases considering the constitutionality of law enforcement offi-
cers allowing members of the media to enter a private residence to
observe or record the execution of a warrant are scarce. The few deci-
sions that we have located on this issue are uniform in concluding that
such conduct does not violate constitutional principles. See Moncrief v.
Hanton, 10 Media L. Rep. (BNA) 1620, 1621-22 (N.D. Ohio Jan. 6,
1984) (rejecting argument that police violated the Fourth Amendment by
permitting media to enter home and film arrest on the basis that no pro-
tected privacy interest was violated); Higbee v. Times-Advocate, 5 Media
L. Rep. (BNA) 2372, 2372-73 (S.D. Cal. Jan. 9, 1980) (declining to
accept plaintiff's assertion that officers violated his constitutional rights
by inviting the press to be present during the execution of a search war-
rant at his residence); Prahl v. Brosamle, 295 N.W.2d 768, 774 (Wis. Ct.
App. 1980) (rejecting claim that officers infringed the Fourth Amend-
ment by allowing a television reporter to enter plaintiff's property and
film search, reasoning "that the filming and television broadcast of a rea-
sonable search and seizure, without more, [do not] result in unreason-
ableness").
11 Of course, we do not hold that these purposes actually justified the
reporters' presence while the warrant was executed; we merely hold that
in the absence of clearly established law holding that they were not ade-
quate to warrant their presence, reasonable officers may have believed
them to be.
_____________________________________________________________________________
WIDENER, Circuit Judge, concurring:
I concur in the result obtained by the majority.
I also concur in all of the majority opinion except the four sen-
tences commencing with "and" on page 9, line 15, and ending with
"warrant" on page 9, line 29. The conclusion there mentioned is not
a question before us, and I would not express an advisory opinion
upon it.
_____________________________________________________________________________
MURNAGHAN, Circuit Judge, dissenting:
News media (principally newspapers, journals, magazines, televi-
sion and radio) have an abiding interest in collecting information and
observing events connected with such information whenever they
occur. The media most naturally find criminal activities and steps to
punish the perpetrators fascinating to their readers, viewers and listen-
ers. What goes on in court or what brings matters to court are high
on the media's list of matters of interest. Understandably media
devote much attention to the arrest of those accused of crime and a
photograph of one being so arrested would be much desired by the
media.
Not surprisingly, riding along with the police is regarded as a most
valuable method of securing photographs and interviews with those
sought by the police. Riding along causes few legal problems when
done on the street or in other public places. However, some of the
most interesting arrests occur in private locations, especially private
homes. An intrusion into a home necessitates, in virtually every case,
a warrant from a judicial officer, except where one of a few specifi-
cally established and well-delineated exceptions applies. When
requested, such a warrant in virtually every case is issued to the
police.
On April 14, 1992, Judge Ruben of Maryland's Sixth Judicial Cir-
cuit issued three warrants for the arrest of Dominic Jerome Wilson.
The warrants were addressed "to any duly authorized peace officer."
The warrants made no mention of where the arrest was to take place
nor of joining a news reporter or a photographer to the team executing
the warrant nor of the need for such person's assistance in the police
execution of the warrant. Nevertheless, the team of Deputy U.S. Mar-
shals and Montgomery County police officers (hereinafter "the
police" or "the officers") invited a newspaper reporter and photogra-
pher seeking a story to accompany the police during the execution of
the warrant. The police allowed the reporters to enter the private
home of Dominic Jerome Wilson's parents without their permission,
to observe the execution of the warrants issued to the police, and to
photograph the Wilsons in a state of undress and under humiliating
circumstances.
It has long been established that a police officer executing a war-
rant is limited to those actions "strictly within the bounds set by the
warrant," Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388, 394 n.7 (1971), or reasonably necessary for
its execution, see Michigan v. Summers, 452 U.S. 692, 705 (1981).
The police officers violated these clearly established Fourth Amend-
ment principles when they invited newspaper reporters to enter a pri-
vate home and photograph the residents for purely commercial
newspaper purposes during the execution of an arrest warrant. The
reporters were not there to involve themselves in such execution. The
ride-along policy of the Department of Justice by which it was
attempted to justify their presence stated that the reporters riding
along were there to see and record what actually happens. Neverthe-
less, the en banc majority grants the officers immunity for their
actions in permitting the reporters' invasion of the privacy of the
home to which the Wilsons were entitled. The majority presents post-
hoc rationalizations to support its assertion that the defendants could
have believed that inviting the reporters into the home was reasonably
necessary to serve the purposes of the arrest warrants. Such a ruling
seeks to convert qualified immunity to absolute immunity.1
No reporters' presence was mentioned in the warrants, and there
were no exigent circumstances justifying warrantless action. Because
no reasonable police officer could have believed that inviting the
reporters into the home or allowing the photographer to take pictures
either was authorized by the warrant or was reasonably necessary to
accomplish its legitimate law enforcement purposes, the police offi-
cers' actions amounted to unreasonable searches and seizures in vio-
lation of clearly established Fourth Amendment law. I vigorously
dissent.
I.
At 6:45 on the morning of April 14, 1992, a team of deputy U.S.
Marshals and Montgomery County Police Officers entered the home
of Charles and Geraldine Wilson. The officers were there to execute
arrest warrants for Dominic Wilson, the Wilsons' adult son. It is to
be emphasized that the police and deputy Marshals had no further
powers conferred on them by the arrest warrants and no mention was
made in the warrants of media presence.
Pursuant to the U.S. Marshals' Ride-Along policy, they had invited
a reporter and a photographer from the Washington Post to accom-
pany them on their mission.2 The policy explained that "ride-alongs,
as the name implies, are simply opportunities for reporters and cam-
era crews to go along with Deputies on operational missions so they
can see, and record, what actually happens." The police officers con-
cede that the reporters "were not involved in executing the warrant,"
Brief of Appellants at 8, 12, but were "mere bystanders," id. at 8.3
Although the policy instructed the Marshals to "establish ground
rules" with the reporters, including "what can be covered with cam-
eras and when, [and] any privacy restrictions that may be encoun-
tered," the officers exercised no control over the reporters or what
they photographed, even once inside the Wilsons' private home.
The Wilsons were lying in bed that morning when they heard a
commotion. Mr. Wilson, dressed only in his undershorts, got up to
investigate and found a team of armed plainclothes officers, accompa-
nied by the reporters, in his living room. The officers subdued Mr.
Wilson, who was angry because of the intrusion. When Mrs. Wilson
came out of the bedroom, wearing only a sheer nightgown, she saw
a police officer holding a gun to her husband's head, pinning him face
down on the floor in his undershorts. The news team observed and
took photographs throughout these events.
The Wilsons filed suit against the Montgomery County police offi-
cers, the Deputy U.S. Marshals, their supervisor and others. They
alleged that their Fourth Amendment rights were violated by the offi-
cers' inviting the reporter and photographer to accompany them into
the Wilsons' home and to observe and photograph during the attempt
to execute the arrest warrant. The defendants' assertion of qualified
immunity was rejected by the district court, then brought to us on
interlocutory appeal. A divided panel of this court reversed the district
court, holding that the officers were entitled to qualified immunity.
This rehearing en banc followed.
II.
A.
We must not, when arguing whether some specific incarnation of
Fourth Amendment rights was or was not clearly established, lose
sight of the core values that the Fourth Amendment was designed to
protect. That amendment is "an American extension of the English
tradition that a man's house [is] his castle." William Cuddihy & B.
Carmon Hardy, A Man's House Was Not His Castle: Origins of the
Fourth Amendment to the United States Constitution , 37 Wm. &
Mary Q. 371, 400 (1980). "The belief that `a man's house is his cas-
tle' found expression at least as early as the sixteenth century" in
English jurisprudence. Id. at 371.
In Semayne's Case, 77 Eng. Rep. 194 (K.B. 1604), the King's
Bench resolved that "the house of every one is to him as his castle and
fortress," id. at 195, and prohibited the government from forcibly
entering a home at the behest of a private party, id. at 198. Although
Semayne's Case accepted broad powers of search in cases where the
government was a party, Lord Coke (who witnessed Semayne's Case
as attorney general) later applied its adage that a man's house was his
castle to curtail the arbitrary government invasion of private homes.
See Cuddihy & Hardy, supra, at 376. William Pitt elaborated upon the
sanctity of the home in his impassioned defense of private homeown-
ers against discretionary government searches before Parliament in
1766. See id. at 386.
The poorest man may, in his cottage, bid defiance to all the
forces of the crown. It may be frail; its roof may shake; the
wind may blow through it; the storm may enter; the rain
may enter; but the king of England may not enter; all his
force dares not cross the threshold of the ruined tenement.
Id. And William Blackstone, in his Commentaries wrote:
And the law of England has so particular and tender a regard
to the immunity of a man's house, that it stiles it his castle,
and will never suffer it to be violated with impunity . . . .
For this reason no doors can in general be broken open to
execute any civil process; though, in criminal cases, the
public safety supersedes the private.
William Blackstone, 4 Commentaries on the Laws of England 223
(1769).
These principles are embodied in the Fourth Amendment of the
United States Constitution: "The right of the people to be secure in
their . . . houses . . . against unreasonable searches and seizures, shall
not be violated . . . ." As Justice Stewart wrote for the Supreme Court
in Silverman v. United States, 365 U.S. 505 (1961):
The Fourth Amendment, and the personal rights which it
secures, have a long history. At the very core stands the
right of a man to retreat into his own home and there be free
from unreasonable governmental intrusion. Entick v.
Carrington, 19 Howell's State Trials 1029, 1066; Boyd v.
United States, 116 U.S. 616, 626-30 . . . . William Pitt's elo-
quent description of this right has been often quoted. The
late Judge Jerome Frank made the point in more contempo-
rary language: "A man can still control a small part of his
environment, his house; he can retreat thence from outsid-
ers, secure in the knowledge that they cannot get at him
without disobeying the Constitution. That is still a sizable
hunk of liberty -- worth protecting from encroachment. A
sane, decent, civilized society must provide some such
oasis, some shelter from public scrutiny, some insulated
enclosure, some enclave, some inviolate place which is a
man's castle." United States v. On Lee, 193 F.2d 306, 315-
16 (dissenting opinion).
Id. at 511 & n.4. Today's majority opinion undermines the right at the
very core of the Fourth Amendment and sanctions an"unreasonable
governmental intrusion."
B.
"[G]overnment officials performing discretionary functions[ ] gen-
erally are shielded from liability for civil damages insofar as their
conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known." Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). It is critical to define the rights
being examined at the appropriate level of specificity. See DiMeglio
v. Haines, 45 F.3d 790, 803-04 (4th Cir. 1995). If the right is defined
too broadly, it will always be found to have been clearly established.
For example, it is clearly established that the deprivation of property
without due process of law violates the Fourteenth Amendment. On
the other hand, if the right is defined too narrowly, no proposition will
ever be found to be clearly established. For example, probably no
case will have held that the exact acts in question regarding the exact
parties in contention under the exact circumstances presented is a con-
stitutional violation.
For the right allegedly violated to be clearly established, it is not
necessary that "the very act in question ha[ve] previously been held
unlawful"; rather "in the light of pre-existing law the unlawfulness
must be apparent." Anderson v. Creighton, 483 U.S. 635, 640 (1987).
If the unlawfulness is apparent, the fact that some courts may have
reached an incorrect result will not shield a defendant's violation of
a clearly established right. See Jones v. Coonce , 7 F.3d 1359, 1362
(8th Cir. 1993) (finding that a right was clearly established despite an
unpublished district court case that had not recognized the right).
C.
The government's right to intrude upon the privacy of the home is
narrowly circumscribed by the Fourth Amendment's prohibition
against unreasonable searches and seizures. The"physical entry of the
home is the chief evil against which the wording of the Fourth
Amendment is directed." United States v. United States District
Court, 407 U.S. 297, 313 (1972).
The Fourth Amendment protects the individual's privacy in
a variety of settings. In none is the zone of privacy more
clearly defined than when bounded by the unambiguous
physical dimensions of an individual's home -- a zone that
finds its roots in clear and specific constitutional terms:
"The right of the people to be secure in their . . . houses . . .
shall not be violated." That language unequivocally estab-
lishes the proposition that "[a]t the very core [of the Fourth
Amendment] stands the right of a man to retreat into his
own home and there be free from unreasonable government
intrusion." In terms that apply equally to seizures of prop-
erty and to seizures of persons, the Fourth Amendment has
drawn a firm line at the entrance to the house. Absent exi-
gent circumstances, that threshold may not reasonably be
crossed without a warrant.
Payton v. New York, 445 U.S. 573, 589-90 (1980) (citation omitted)
(quoting Silverman v. United States, 365 U.S. 505, 511 (1961)) (alter-
ations in original). Similar language is omnipresent in the Supreme
Court's Fourth Amendment jurisprudence. See, e.g., Winston v. Lee,
470 U.S. 753, 761-62 (1985) (explaining that "[i]ntruding into an
individual's living room" to conduct a search"damage[s] the individ-
ual's sense of personal privacy and security and[is] thus subject to
the Fourth Amendment's dictates").
Unless a search is supported by a warrant or a specific exception
to the warrant clause, it is per se unreasonable, and therefore uncon-
stitutional. See Coolidge v. New Hampshire, 403 U.S. 443, 489 (1971)
("[S]earches and seizures inside a man's house without warrant are
per se unreasonable in the absence of some one of a number of well
defined `exigent circumstances.'"). The arrest warrant in this case was
addressed "to any duly authorized peace officer." It made no mention
of a news team or of a photographer, or of any private individuals to
be invited into another's private home. Nor is there any claim that
exigent circumstances or some other exception to the warrant clause
excused the Montgomery County Circuit Court's failure to allude to
a reporter or photographer.
Even when a valid warrant authorizes entry into a private home, a
police officer is limited to those actions explicitly named in the war-
rant. See Bivens, 403 U.S. at 394 n.7 ("[T]he Fourth Amendment con-
fines an officer executing a search warrant strictly within the bounds
set by the warrant . . . ."); Buonocore v. Harris, 65 F.3d 347, 356 (4th
Cir. 1995). The reasonableness of a search or seizure depends in part
on how it is carried out. See Graham v. Connor , 490 U.S. 386, 395
(1989).
A warrant may imply some limited authority to take actions not
explicitly mentioned in it, but reasonably necessary to further its pur-
poses. See Summers, 452 U.S. at 705 (holding that a search warrant
for a home carries the implied authority to detain its occupants);
Lawmaster v. Ward, 125 F.3d 1341, 1349 (10th Cir. 1997). For exam-
ple, "an arrest warrant founded on probable cause implicitly carries
with it the limited authority to enter a dwelling in which the suspect
lives when there is reason to believe the suspect is within." Payton,
445 U.S. at 603. This authority is implied because"[i]f there is suffi-
cient evidence of a citizen's participation in a felony to persuade a
judicial officer that his arrest is justified, it is constitutionally reason-
able to require him to open his doors to the officers of the law." Id.
at 602-03.
Because the media presence here served no legitimate law enforce-
ment function, but rather was intended solely to gather news to profit
the Washington Post, the arrest warrant did not carry with it the
implied authorization to invite the media into a private house.4 The
reporter and photographer "were not involved in executing the war-
rant," but were "mere bystanders." Brief of Appellants at 8. The dis-
trict court found that the reporters were "not serving any legitimate
law enforcement purposes." (transcript of hearing on summary judg-
ment motions). A warrant does not carry with it the authority to bring
along mere bystanders to observe for their own commercial purposes.
Even if we only consider cases from the Supreme Court, the Fourth
Circuit Court of Appeals, and the Court of Appeals of Maryland, the
principles recounted above were all clearly established by the time of
the search in April 1992. In addition, by March of 1992, one circuit
court had explained that officers searching a private residence pursu-
ant to a warrant might unconstitutionally "exceed the scope of the
authority implicitly granted them by their warrant when they permit
unauthorized invasions of privacy by third parties who have no con-
nection to the search warrant or the officers' purposes for being on
the premises." Bills v. Aseltine, 958 F.2d 697, 704 (6th Cir. 1992).
And it has been established in the common law since the early 1600's
that "[e]ven a duly authorized officer could not execute a warrant to
further the purposes of a private individual." Buonocore, 65 F.3d at
354 (citing Semayne's Case, 77 Eng. Rep. 194, 198 (K.B. 1604);
Burdett v. Abbott, 104 Eng. Rep. 501, 560-61 (K.B. 1811)).
The Supreme Court jurisprudence, circuit court precedent and
long-standing principles of common-law discussed above were not
made any less clear by the fact that two unpublished district court
opinions had concluded that inviting the news media to observe the
execution of a search warrant within a private home did not violate
any federally protected right. See Moncrief v. Hanton, 10 Media L.
Rep. (BNA) 1620, 1621-22 (N.D. Ohio Jan. 6, 1984) (holding that
plaintiffs had "alleged no facts to show a search was unreasonable,"
nor had they stated a claim for violation of any other federally pro-
tected right to privacy);5 Higbee v. Times-Advocate, 5 Media L. Rep.
(BNA) 2372, 2372-73 (S.D. Cal. Jan. 9, 1980) (rejecting a plaintiff's
claim of deprivation of federally protected privacy rights without
addressing the Fourth Amendment). We have previously observed
that "[s]ince unpublished opinions are not even regarded as binding
precedent in our circuit, such opinions cannot be considered in decid-
ing whether particular conduct violated clearly established law for
purposes of adjudging entitlement to qualified immunity."6 Hogan v.
Carter, 85 F.3d 1113, 1118 (4th Cir.), cert. denied, 117 S. Ct. 408
(1996). More importantly, neither of the unpublished district court
cases squarely addressed the claim made by the Wilsons, that police
violate the Fourth Amendment when they invite reporters who are not
mentioned in the warrant nor reasonably necessary to its execution to
accompany them into a private home, without the consent of the
homeowner. In Moncrief the court only addressed procedural chal-
lenges to the execution of the warrant (such as its timing) in rejecting
the plaintiffs' Fourth Amendment claim. See Moncrief, 10 Med. L.
Rep. at 1621. And the court in Higbee never considered the Fourth
Amendment at all. See Higbee, 5 Med. L. Rep. at 2372-73. Neither
case endorses or approves of the actions here complained of; they
never discuss the issue at all. Such unpublished cases amount to no
precedent whatsoever, and cannot render a defendant immune from
liability for the violation of a clearly established law. See Jones, 7
F.3d at 1362 (finding that a right was clearly established, despite an
unpublished district court case that had not recognized the right);
compare Ayeni v. Mottola, 35 F.3d 680, 684-86 (2d Cir. 1994) (hold-
ing that it was clearly established in 1992 that officers violated the
Fourth Amendment when they allowed a television crew to film the
execution of a search warrant (which made no mention of their pres-
ence) at a private residence), cert. denied, 514 U.S. 1062 (1995), with
Parker v. Boyer, 93 F.3d 445, 447 (8th Cir. 1995) (observing that no
such right was clearly established because most cases that had
addressed the question had found no constitutional violation, citing
unpublished cases but ignoring broader principles of Fourth Amend-
ment law), cert. denied, 117 S. Ct. 1081 (1997).
In addition to the unpublished cases, the majority notes that an
intermediate appellate court in Wisconsin has faced a similar issue.
That court in 1980 was "unwilling to accept the proposition that the
filming and television broadcast of a reasonable search and seizure,
without more, result in unreasonableness," where"neither the search
. . . nor the film or its broadcast has been shown to include intimate,
offensive or vulgar aspects." Prahl v. Brosamle, 295 N.W.2d 768, 774
(Wis. Ct. App. 1980). Unlike that case, here the search and photogra-
phy clearly involved intimate aspects -- Mr. Wilson was held at gun-
point in his underwear and Mrs. Wilson was photographed in only a
sheer nightgown. Thus Prahl offers no solace to these defendants.7
It was manifest to any reasonable officer in 1992 (indeed before
that date) that he had to strive to minimize the substantial intrusion
upon privacy that accompanies the execution of a warrant in a private
home. The Supreme Court has warned that "responsible officials,
including judicial officials, must take care to assure that [searches and
seizures that may reveal innocuous, private information] are con-
ducted in a manner that minimizes unwarranted intrusions upon pri-
vacy." Andresen v. Maryland, 427 U.S. 463, 482 n.11 (1976). Here
the police officers maximized the intrusion upon the privacy of the
parents' home during a search for their son, by holding the innocent
occupants of the home at gunpoint while members of the media pho-
tographed them in their underwear. The officers could hardly have
done more violence to the well-established Fourth Amendment princi-
ples recounted above.
D.
The majority does not disagree with the conclusion that
in 1992 it was clearly established that the Fourth Amend-
ment was violated if officers permitted third parties who
were not expressly authorized by the warrant and who were
not assisting reasonable law enforcement efforts related to
the execution of the warrant to accompany them into a resi-
dence . . . .
Majority opinion at p. 9. The majority nevertheless has asserted that
because there was "no clear law . . . establishing that permitting
reporters to observe and photograph the events surrounding the exe-
cution of an arrest warrant may not serve a legitimate law enforce-
ment purpose related to execution of the warrant," a reasonable law
enforcement officer might have concluded that permitting the report-
ers in this case to observe and photograph did serve such a purpose.
Id. at 9 (emphasis added).
The majority's argument is speculative and disingenuous at best;
it may just as well have argued that, because there was no law prohib-
iting reporters or photographers from being authorized by the warrant,
a reasonable officer might have concluded that the reporters and pho-
tographer in this case were authorized by the warrant. But of course,
the officers knew that they were not so authorized; the warrant made
no mention of reporters or photographers. Likewise, the officers knew
full well that the reporters served no legitimate law enforcement pur-
pose, and no reasonable officer on that team could have thought oth-
erwise. The officers recognized as much when they explained in their
brief that the reporters "were not involved in executing the warrant"
but were "mere bystanders." Brief of Appellants at 8. The panel opin-
ion, in finding there was qualified immunity, stated that: "[t]he report-
ers' participation was part of a two-week, news-gathering
investigation by the newspaper; it was not designed to serve any legit-
imate law enforcement purpose." 110 F.3d 1071, 1072 (4th Cir. 1997)
(emphasis added).8
The news gathering team was part of a two week investigation to
produce a story or stories about law enforcement. The police brought
the team along in the hope of getting some good press; that is all. The
majority's suggestion that the police officers might have concluded
that the reporters would "afford[ ] protection to the officers by reduc-
ing the possibility that the target of a warrant will resist arrest in the
face of recorded evidence of his actions," majority opinion at 9, is
absurd.9 The team was not brought along for this reason, and no rea-
sonable member of the team could have believed that it was.10 There
is no evidence that the team served this or any other legitimate law
enforcement purpose.
Police officers cannot justify exceeding the clear bounds of a war-
rant by asserting that their actions might fortuitously have served
some legitimate purpose despite being designed with no such purpose
in mind. The reporters might also have helped by carrying the warrant
while the officers handcuffed suspects, or by holding the door open
for an officer while he was carrying contraband; but to uphold the
police actions because of the potential for fortuitous assistance,
despite clearly not being designed to serve law enforcement, would
make a mockery of the rule that an officer's actions are limited to the
scope authorized by the warrant. See Bivens, 403 U.S. at 394 n.7.11
The exceptions to this strict limitation permit only those actions rea-
sonably necessary to accomplish the purpose of the warrant. See
Payton, 445 U.S. at 602-03; Summers, 452 U.S. at 705.
It is fundamental that, when practicable, officers must obtain the
approval of a neutral judicial officer, via a warrant, for any intrusion
upon the Fourth Amendment privacy of an individual's home. See
Johnson v. United States, 333 U.S. 10, 13-14 (1948). If the presence
of a photographer or other observer on a search in a private home
would be reasonably necessary to serve a legitimate purpose, then a
police officer in obtaining the warrant should explain so to the judi-
cial officer issuing the warrant. See, e.g., Stack v. Killian, 96 F.3d
159, 163 (6th Cir. 1996) (holding that police officers were justified
in bringing a television crew into a house to videotape the execution
of a search warrant because "the warrant at issue[specifically] autho-
rized `videotaping and photographing' during the execution of the
search."). Despite these settled principles, the majority's holding
today allows police unilaterally to invite a reporter or anyone else to
accompany them whenever entering a house, even if the warrant says
absolutely nothing about allowing other parties to enter, so long as
their presence might fortuitously produce some benefit to the police.12
E.
A proper understanding of the relationship between this case and
our precedent in Buonocore v. Harris, 65 F.3d 347 (4th Cir. 1995),
further reveals that the officers' actions violated clearly established
law. In Buonocore, officers executing a search warrant for illegal
weapons at the plaintiff's residence invited a security officer from the
plaintiff's work to attend the search and look for items possibly stolen
from work (which were not mentioned in the warrant). See id. at 350.
The plaintiff filed a Bivens action alleging that the officers' actions
violated the Fourth Amendment, and the officers raised a qualified
immunity defense. See id. at 351-52.
The Fourth Circuit in Buonocore discussed two related concepts
contained within the Fourth Amendment:
First, by mandating that "no warrants shall issue" unless
they "particularly" describe "the place to be searched" and
"things to be seized," the Framers prohibited the use of gen-
eral warrants issuable to anyone. Second, by expressly
acknowledging the substantive "right of the people to be
secure in their . . . houses," the Framers recognized a per-
son's special right to privacy, to be left undisturbed --
except for reasonable searches -- within his own home.
Id. at 353. After a thorough and detailed analysis, the court concluded
that the officers' actions offended both aspects of the Fourth Amend-
ment:
In view of the "common law at the time of the framing," of
the Fourth Amendment, and the Supreme Court's uniform
interpretation of the Amendment's protections since that
time, we have no doubt that the Fourth Amendment prohib-
its government agents from allowing a search warrant to be
used to facilitate a private individual's independent search
of another's home for items unrelated to those specified in
the warrant. Such a search is not "reasonable." It obviously
exceeds the scope of the required specific warrant and fur-
thermore violates the "sanctity of private dwellings."
Id. at 356 (citations omitted).
The Buonocore panel next asked whether these rights were clearly
established at the time of the search (in November of 1992). Instead
of analyzing the two elements separately, however, it combined them,
holding that "[t]he right to be free from government officials facilitat-
ing a private person's general search of the sort Buonocore alleges
was conducted here, is `manifestly included' within `core' Fourth
Amendment protection." Id. at 357.13 On that basis the en banc major-
ity attempts to read narrowly and distinguish Buonocore from the sit-
uation in Wilson.
Today's majority recognizes that Buonocore holds that "it was
clearly established on November 24, 1992 that `Fourth Amendment
law prohibited government agents from bringing a private citizen into
Buonocore's home to conduct an independent, general search for
items not identified in any warrant.'" Majority opinion at 10 n.6
(quoting Buonocore, 65 F.3d at 353). Of course, the reporter and pho-
tographer brought into the Wilson home were private citizens. But the
majority argues that these reporters did not conduct a "general inde-
pendent search," id., nor was their taking of photographs a seizure, id.
at 8-9. Neither assertion is persuasive; in fact, the rights asserted by
the Wilsons are analogous to those asserted by Buonocore.
First, it is clear that the reporter's and photographer's actions con-
stituted an independent search. The district court found that
to the extent that [the reporters] weren't[trying to aid law
enforcement], they were in the house, snooping around,
looking around, participating in one fashion or another with
both the search of the premises for the individual, who was
not found, and the seizure of the Wilsons, who were
detained and actually photographed by the photographer.
(transcript of hearing on summary judgment motions).
An inspection amounts to a "search" if it intrudes upon a subjective
expectation of privacy that society is prepared to recognize as reason-
able. See Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,
concurring). The Wilsons unquestionably had a reasonable expecta-
tion of privacy in their home and in their undressed bodies vis-a-vis
the reporters. The reporter's and photographer's"snooping around"
and "looking around" the inside of the Wilsons' home violated that
reasonable expectation of privacy. The violation was magnified expo-
nentially by the reporter's intention to publish the story he observed
to the world at large, and the photographer's taking photographs of
the Wilsons' humiliating circumstances, particularly Mr. Wilson
wearing only his underwear, being held prostrate on the floor with a
gun to his head.14
Perhaps the majority believes that the Wilson search did not impli-
cate the right recognized in Buonocore because "the reporters did not
conduct a search of, or intrude into, any areas of the Wilsons' home
into which the officers would not have been permitted to go in execut-
ing the arrest warrant." Majority opinion at 8. Any attempt to distin-
guish the Buonocore search on the grounds that the Wilson search was
not "an independent" one, however, is unavailing.15
The news team's search of the Wilson home was independent of
the police execution of the arrest warrant in that the two parties were
looking for altogether different things: the police were looking for a
fugitive whereas the news team was looking for anything dramatic
that might make a good story. The language in Buonocore stressing
the independence of the officers' and private party's searches, 65 F.3d
at 358-59, served only to explain why 18 U.S.C.A.' 3105 (West
1985) did not offer a defense to the officers. Section 3105 provides
that a search warrant may be served by a person not mentioned in the
warrant only if the third party acts "in aid of the officer on his requir-
ing it, he being present and acting in its execution." 18 U.S.C.A.
' 3105 (West 1985). Daniel Buonocore's Fourth Amendment rights
would still have been violated if the private party who searched his
house at the invitation of the police officers had followed them
around the house, going only where the officers went, as long as the
private party was acting independently of the officers, that is, not in
their aid.
Nor is the majority correct to assert that the photographing of the
Wilsons, undressed, was not a "seizure" because it did not "meaning-
ful[ly] interfer[e] with" their "possessory interests in . . . property."
Majority opinion at 8 (quoting United States v. Jacobsen, 466 U.S.
109, 113 (1984)) (internal quotation marks omitted). We have in the
past recognized that "taking a photograph may, under some circum-
stances, constitute an unreasonable seizure." United States v.
Espinoza, 641 F.2d 153, 166-67 (4th Cir. 1981) (finding that where
an officer has a right to be in a given location, he may take photo-
graphs of what he sees in plain view, thereby "`seizing' those views
themselves as evidence."). The reporters, however, had no right to be
within the Wilsons' home, and the Wilsons unquestionably had a pos-
sessory interest in their undressed likenesses. Had their photographs
been published, they might have sued the Washington Post for inva-
sion of privacy. See Lawrence v. A.S. Abell Company, 475 A.2D 448,
453 (Md. 1984) (recognizing that a newspaper can be sued for appro-
priation of another's likeness, but not if the picture is news, taken
while in a public place at a newsworthy event). The photographer did
not have the Wilsons' permission to photograph, nor was the Wil-
sons' home a public place. The property interest was clearly estab-
lished well before the search in 1992.
The majority concludes its discussion of the reporters' actions by
asserting that
reasonable officers under these circumstances had no clearly
established law from the Supreme Court, this court, or the
Court of Appeals of Maryland from which they necessarily
understood that they exceeded the scope of an arrest warrant
by permitting reporters to engage in activities in which they
themselves could have engaged consistent with the warrant.
Majority opinion at 8-9. One need only follow that assertion to its
logical conclusion to see that it reduces to an absurdity. It implies that
if a police officer had a warrant addressed to him by which he could
invade someone's privacy, he could reasonably have believed that it
was permissible to allow any other party to do whatever was autho-
rized by the warrant. If, for example, the police officers had a warrant
to perform a body cavity search upon Mrs. Wilson, the majority
implies that they could have believed the warrant authorized them to
allow members of the public to watch and then to perform the body
cavity search themselves. Furthermore, assuming that a photograph is
not a seizure, a police officer conducting a strip search pursuant to a
warrant could believe the warrant authorized him to invite newspaper
photographers to photograph Mrs. Wilson being stripped.
Of course this is ridiculous. Such a search would be patently unrea-
sonable. But it would be one in which the reporter had seen no more
than the officer was entitled to see, and in which the photographer,
for his own private benefit, took pictures no more intrusive than the
police could have taken if they had had a legitimate reason to do so.
In today's case the majority finds that it was not clearly unreasonable
for a police officer to force at gunpoint a citizen in his underwear to
pose for a camera, potentially to be exhibited to the entire viewing
readership of the Washington Post. This, too, was patently unreason-
able.
In sum, the reporters' observations and photography constituted an
additional private search and seizure not described in the warrant nor
carrying out its purposes. The officers' inviting the reporters into the
home to conduct their search for news while the officers executed the
arrest warrant thus falls squarely under Buonocore, and was clearly
prohibited by the Fourth Amendment in 1992.
To conclude otherwise would authorize law enforcement
officers to invite private individuals to engage in conduct
that would constitute trespass were it not conducted under
the guise of a search warrant. Neither the Fourth Amend-
ment nor ' 3105 grants government agents such authority.
Buonocore, 65 F.3d at 359.
III.
Although the exact issue of police inviting news media to observe
and record the execution of an arrest warrant within a home has never
been discussed by the Supreme Court or the Fourth Circuit, three
other circuits have asked whether officers deserved qualified immu-
nity under facts substantially similar to the Wilson case.16 The Second
Circuit in Ayeni v. Mottola, 35 F.3d 680 (2d Cir. 1994), cert. denied,
514 U.S. 1062 (1995), held that "an objectively reasonable officer [on
March 5, 1992] could not have concluded that inviting a television
crew -- or any third party not providing assistance to law enforce-
ment -- to participate in a search was in accordance with Fourth
Amendment requirements," id. at 686. That Circuit's analysis is worth
quoting at length:
[The officer] correctly asserts that there is no reported
decision that expressly forbids searching agents from bring-
ing members of the press into a home to observe and report
on their activities. He therefore argues that there was no
clearly established rule prohibiting such an act. The argu-
ment lacks merit. It has long been established that the objec-
tives of the Fourth Amendment are to preserve the right of
privacy to the maximum extent consistent with reasonable
exercise of law enforcement duties and that, in the normal
situations where warrants are required, law enforcement
officers' invasion of the privacy of a home must be
grounded on either the express terms of a warrant or the
implied authority to take reasonable law enforcement
actions related to the execution of the warrant.[The officer]
exceeded well-established principles when he brought into
the [private] home persons who were neither authorized by
the warrant to be there nor serving any legitimate law
enforcement purpose by being there. A private home is not
a soundstage for law enforcement theatricals.
The unreasonableness of [the officer's] conduct in Fourth
Amendment terms is heightened by the fact that, not only
was it wholly lacking in justification based on the legitimate
needs of law enforcement, but it was calculated to inflict
injury on the very value that the Fourth Amendment seeks
to protect -- the right of privacy. The purpose of bringing
the . . . camera crew into the [private party's] home was to
permit public broadcast of their private premises and thus to
magnify needlessly the impairment of their right of privacy.
Id.
We should wholeheartedly agree with the foregoing discussion. See
also Hagler v. Philadelphia Newspapers, Inc., 1996 WL 408605, *2
- *3, 24 Media L. Rep. 2332 (E.D. Pa. July 12, 1996) (adopting and
quoting the reasoning of Ayeni); but see Bills v. Aseltine, 52 F.3d 596,
602 (6th Cir. 1995) (criticizingAyeni for its "failure to define nar-
rowly the right allegedly violated, instead describing the violation in
abstract and general terms").
The most recent circuit court decision to address the question,
Berger v. Hanlon, 129 F.3d 505 (9th Cir. 1997), holds that it was
clearly established in 1993 that police officers violate the Fourth
Amendment when, in executing a search warrant on private premises,
they planned and assisted in the television broadcasting of that search
despite no mention in the warrant of any media presence, see id. at
510-12.
The Bergers contend that the resulting search violated their
Fourth Amendment rights against unreasonable searches and
seizures. We hold they are correct and that the federal offi-
cers are not entitled to qualified immunity.
This was no ordinary search. It was jointly planned by
law enforcement officials and the media, as memorialized
by a written contract, so that the officials could assist in the
media obtaining material for their commercial program-
ming. The television cameras invaded the residential prop-
erty of the plaintiffs and the microphone invaded their
home. This search stands out as one that at all times was
intended to serve a major purpose other than law enforce-
ment. Yet, the federal agents obtained the warrant without
disclosing the contract, the planned press presence, or the
media's purpose. The Fourth Amendment to our Constitu-
tion protects against unreasonable searches and warrants
that are obtained under false pretenses . . . . We must heed
its strictures on the potential abuse of law enforcement pow-
ers. This search violated its protections.
Id. at 510-11.
The Ninth Circuit stressed that the extent of the law enforcement
officials' involvement in planning, cooperating with and assisting the
media presence was unprecedented, surpassing the more passive role
played by police in cases such as Wilson v. Layne. See id. at 511-12
(distinguishing the panel opinion in Wilson v. Layne, 110 F.3d 1071
(4th Cir. 1997)). However, the execution of the arrest warrant at the
Wilsons' home, just like the search of the Bergers' ranch, "at all times
was intended to serve a major purpose other than law enforcement."
Id. at 510. Both searches were also intended to serve the private inter-
ests of the media. These invasions, no less than the search of the
Ayeni's home, turned private property into a stage for "law enforce-
ment theatricals." Ayeni, 35 F.3d at 686.
Relying on Ayeni and Buonocore, the Ninth Circuit found that the
officers who orchestrated the media invasion of the Bergers' Fourth
Amendment rights were unprotected by qualified immunity. Berger,
129 F.3d at 511. The Circuit found "even further support for this view
when [it] observe[d] that no circuit court decision ha[d] ever upheld
the constitutionality of a warranted search where broadcast media
were present to document the incident for non-law enforcement pur-
poses, and where the videotaping and sound recording were outside
of the scope of the warrant." Id. The circuit recognized that the Fourth
Amendment establishes a presumption that such invasions are prohib-
ited unless justified by a warrant or by some exception to the warrant
clause. In Berger, just as in Wilson, the warrant made no mention of
media presence, the presence of members of the media was not rea-
sonably necessary to assist in execution of the warrant, and no exi-
gency presented itself that prevented the police from seeking to
provide for media presence in the warrant. Because the broadcast of
the search was not intended to serve law enforcement purposes but
rather was undertaken, as in the case of the Wilsons, for commercial
entertainment, the Ninth Circuit held that the officers did not enjoy
immunity. See id. at 512.
The Eighth Circuit held in Parker v. Boyer, 93 F.3d 445 (8th Cir.
1996), cert. denied, 117 S. Ct. 1081 (1997), that it was not "self-evident17
that the police offend general Fourth Amendment principles when
they allow members of the news media to enter someone's house dur-
ing the execution of a search warrant," and that therefore this did not
violate any clearly established right as of 1994, id. at 447. The Eighth
Circuit observed that "most courts have rejected the argument that the
United States Constitution forbids the media to encroach on a per-
son's property while the police search it," dismissing Ayeni and
4495 27 1 Buonocore18 as "indicat
[ing] at most only the beginnings of a trend in
the law." Id.
Conspicuously absent from the Parker opinion is any discussion of
the constitutional principle limiting an officer executing a warrant to
those actions expressly authorized by the warrant or reasonably nec-
essary to effect its legitimate law enforcement purpose. Indeed, the
Eighth Circuit completely disregarded the Supreme Court's directive
in Anderson v. Creighton, 483 U.S. 635 (1987), that it must look not
only for a case on point holding that the officers' actions were prohib-
ited, but also to related and analogous law to discover whether the
unlawfulness of the officers' actions was apparent, id. at 640; see also
Recent Case, 110 Harv. L. Rev. 1340, 1342-44 (1997) (The Eighth
Circuit "improperly ended its inquiry after ascertaining that no case
had explicitly identified such a right at the time the officers conducted
their search. Instead, the court should have considered whether an
existing precedent falling along the spectrum between general Fourth
Amendment principles and a previous case on point clearly estab-
lished a constitutional right to be free from media intrusion at the exe-
cution of a search."). Had the Eighth Circuit conducted the broader
inquiry that Anderson requires, it would have considered the well-
established principles recounted above, which are so central to the
analysis. Perhaps, then, it would have come to a wiser result. See id.
at 1345 ("Had the Eighth Circuit followed Anderson's guidance, it
might have reached a different result. Instead, it too hastily legiti-
mated the practice of tag-along journalism. . . . Faced with an issue
of increasing constitutional urgency, the court should have undertaken
the more careful, nuanced analysis that Anderson invites.").
The majority's en banc opinion adds our Circuit's voice to the split
between the Second and Ninth Circuits on the one hand and the
Eighth Circuit on the other. Given the prevalence of real-life police
dramas on television, other circuits will face this question soon
enough. They will, I hope, reach a more just conclusion than have we.
IV.
Perhaps the reason for the disagreement between the majority and
myself, about whether the reporters' presence was reasonably neces-
sary to accomplish a legitimate law enforcement purpose, results from
a disagreement about what that question means. I believe that the role
which the reporters played at the Wilson home is a question of histori-
cal fact, which can be discovered by questioning the witnesses. In this
case, the police officers have admitted both at the district court level
and here on appeal that the reporters were merely bystanders and
played no role in the execution of the arrest warrant itself.
The majority, on the other hand, does not treat the role of the news
reporters as a question of historical fact, but rather as one of law
which itself must be clearly established. The majority asked whether
it was clearly established to a reasonable police officer that the report-
ers could not serve a legitimate law enforcement purpose. Such an
approach will exonerate even the most culpable officers.
We know that the actual purpose for which the police officers
brought along the reporters was not reasonably necessary to the exe-
cution of the warrant. We need not ask whether it was clearly estab-
lished that some other purpose, which the police officers never
actually thought about, could not have reasonably been thought neces-
sary to the execution of the warrant. But I note, for completeness, that
I do not believe that the hypothetical reasons described in the majority
opinion (e.g., "affording protection to the officers" or "facilitating
accurate reporting," majority op. at 9) are sufficiently necessary to the
execution of an arrest warrant to justify the undermining of the sanc-
tity of the home and the fundamental principle behind the Fourth
Amendment that a man's home is his castle.
The majority goes much too far when it sanctions unconsented-to
public tours of private homes, with photography allowed, under the
guise of an arrest warrant. After today, any police officer entering a
private home under a search or an arrest warrant may bring along any
observer as a bystander, even an observer there only to serve his own
commercial purposes or to satisfy mere curiosity. Regardless of the
officers' actual reasons for bringing the third party along, this Circuit
will immunize the officer because the third party's presence might
have reduced the possibility that the target of the warrant would resist
arrest, or because "public oversight of law-enforcement activities . . .
deters crime, as well as improper conduct by law enforcement offi-
cers," id. Far from protecting us against tyrannical police practices,
the majority's opinion today threatens one of the most sacred rights
protected by the United States Constitution. From now on in the
Fourth Circuit, unlike the Second or Ninth, if ever the government
need enter a private home, the home -- and its occupants -- can be
laid bare for all the world to see.
The Fourth Amendment guarantees that the sanctity of the home,
one's castle, will not be disturbed unless by warrant or pursuant to a
specific warrant exception. These reporters were not mentioned in the
warrant. Their presence was not justified by any exception to the war-
rant clause, nor was it reasonably necessary to accomplish the pur-
poses of the warrant. These reporters were in the Wilsons' home
strictly for their own commercial news-gathering purposes. When
police orchestrate the entry of third parties, including newspaper
reporters, into a private home without the consent of the homeowner,
without the authorization of a warrant, for no legitimate law enforce-
ment need and justified by no exigent circumstances, they violate the
clearly established protections of the Fourth Amendment.
From the majority opinion, I dissent. Judges Ervin, Hamilton,
Michael, and Motz join in this dissenting opinion.
_____________________________________________________________________________
FOOTNOTES
1 The majority has not argued that an exception to the warrant require-
ment justified the search. See Mincey v. Arizona , 437 U.S. 385, 390
(1978) ("The Fourth Amendment proscribes all unreasonable searches
and seizures, and it is a cardinal principle that`searches conducted out-
side the judicial process, without prior approval by judge or magistrate,
are per se unreasonable under the Fourth Amendment--subject only to
a few specifically established and well-delineated exceptions.'" (quoting
Katz v. United States, 389 U.S. 347, 357 (1967)); Wallace v. King, 626
F.2d 1157, 1161 (4th Cir. 1980) (explaining that, to justify a warrantless
search for the subject of an arrest warrant in the home of a third party,
"not only must the officers have probable cause to believe the person
named in the arrest warrant is on the premises of the third person, but
there must also exist an appropriate exception to the warrant require-
ment," such as "exigent circumstances"). Clearly no such exception was
"specifically established and well delineated."
2 There was no equivalent Montgomery County Sheriff's Department
ride-along policy. In fact, Raymond M. Kight, Sheriff of Montgomery
County, believed that it would be a violation of the constitutional rights
of a homeowner to bring a civilian on a ride-along program into a private
home, unless the civilian were there as a witness to identify someone or
served some other legitimate purpose related to the execution of the war-
rant.
3 Even if photographs had been reasonably necessary to accomplish the
purpose of the warrant, allowing a member of the news media to take the
photographs was not; the police could have brought along a camera and
snapped a picture themselves.
4 An intrusion into a private home is entirely different from a situation
where ride-along reporters accompany police officers or cameras are
mounted on police cars on a public street. Those situations do not
involve the reasonable expectation of privacy inherent in a home inva-
sion.
5 Despite Moncrief's holding, the entry by the news media, without
mention in the warrant, was plainly unreasonable in Fourth Amendment
terms.
6 It seems logical that repeated decisions refusing to recognize a right
would be evidence that the right was not clearly established even if the
opinions were unpublished. However, it is well known that judges may
put considerably less effort into opinions that they do not intend to pub-
lish. Because these opinions will not be binding precedent in any court,
a judge may be less careful about his legal analysis, especially when
dealing with a novel issue of law. For this reason we are loathe to cite
to unpublished opinions, see Local Rule 36(c), nor will we consider them
to be evidence that a right is or is not clearly established.
7 Even had Prahl been directly supportive of the officers' actions, its
erroneous conclusion could not immunize them from liability for viola-
tion of clearly established law. Although we have in the past held that
a single state court of appeals case to the contrary"alone suffice[d] to
show that [a recently recognized right] had not theretofore been clearly
established." Swanson v. Powers, 937 F.2d 965, 969 (4th Cir. 1991), in
that case the newly recognized tax holding did not have the clear consti-
tutional pedigree of the right the Wilsons assert, see id. at 968 (holding
that the right not to be discriminatorily taxed was not clearly established
because "[t]he most pertinent judicial decisions had upheld comparable
taxing schemes and the doctrine of intergovernmental tax immunity was,
at best, ambiguous").
8 Interestingly, the en banc majority opinion leaves out the second half
of that sentence. See majority opinion at 4.
9 Although I have cited to the passage on page 9 as the "majority opin-
ion," it is important to note that only five of the eleven active Circuit
Judges have joined this portion of the en banc opinion. A majority of the
en banc court (the five dissenting Judges and Judge Widener) does not
endorse the hypothetical reasons referred to as legitimate justifications
for the officers' actions. Nor is the conclusion, see majority op. at 9 ("In
any event, we conclude that reasonable law enforcement officers could
have believed that permitting the reporters to observe and photograph the
execution of the arrest warrant advanced a legitimate law enforcement
purpose related to the execution of the warrant."), the law of our Circuit;
on that point, the Circuit is evenly divided.
10 This attention to the belief that the actual officers may have pos-
sessed at the time of the search "does not reintroduce into qualified
immunity analysis the inquiry into officials' subjective intent."
Anderson, 483 U.S. at 641. Rather, the Supreme Court has explained that
the determination of whether it was objectively reasonable for an officer
to have believed that his search was lawful "will often require examina-
tion of the information possessed by the searching officials." Id. Our
inquiry must ask whether a reasonable officer, knowing what these offi-
cers knew about the news team, could have concluded that their presence
was reasonably necessary to serve the purpose of the arrest warrant.
11 Similarly, early English jurisprudence recognized that a warrant
issued to officers in one jurisdiction cannot properly be executed by offi-
cers of another jurisdiction. See Freegard v. Barnes and Barton, 155
Eng. Rep. 1185, 1186 (Exch. 1852).
12 The majority's holding will also undermine the rule recognized in
Buonocore, 65 F.3d 347, discussed below, that"the Fourth Amendment
prohibits government agents from allowing a search warrant to be used
to facilitate a private individual's independent search of another's home
for items unrelated to those specified in the warrant," id. at 356. That pri-
vate individual's presence, after all, might "afford[ ] protection to the
officers by reducing the possibility that the target of a warrant will resist
arrest in the face of" a witness to his actions. Majority opinion at 9. By
the majority's reasoning, such potential fortuitous assistance might be
enough to shield an officer from liability for a clear constitutional viola-
tion.
13 It was not necessary at the time to discuss whether the right to be free
from the police inviting third parties, who were not mentioned in the
warrant and not reasonably necessary to its execution, into a private
home during execution of a warrant, independent of their searching, was
clearly established.
14 It is immaterial that the photographs have not yet been published,
except to the extent that publishing them should increase the allowable
damages. They have in any event been seen by him who took them and
by an editor or editors of the Washington Post .
15 It is possible that the majority means to suggest that, because the
officers had already seen everything that the reporters saw, the Wilsons
had no remaining expectation of privacy in their home or undressed per-
sons to be infringed by the reporters' observation. See Brief of Appellant
at 16-17 (citing United States v. Jacobsen, 466 U.S. 109, 115 (1984)).
Such a mechanical understanding of a reasonable expectation of privacy
may be appropriate in regard to a search that reveals only information --
for example, once an individual gives information to a third party, he
assumes the risk that the third party will reveal the information to the
authorities. See United States v. Miller, 425 U.S. 435, 442-43 (1976). An
expectation of privacy in the shared information is not reasonable, and
does not implicate the Fourth Amendment. See id. at 443.
But the same cannot be said for a search that intrudes on a privacy
right founded as much in dignity as in secrecy. If the Wilsons had invited
a guest into their home, the guest could not then have opened the door
to the police to conduct a search. Illinois v. Rodriguez, 497 U.S. 177,
181-82 (1990). One retains a reasonable expectation of privacy in one's
home, vis-a-vis the government, even if one has previously allowed
someone else to enter. Similarly, the Wilsons retained a reasonable
expectation of privacy in their home, vis-a-vis the reporters, even though
the police had the right to enter pursuant to the warrant. The reporters
clearly had no such right.
16 The majority misunderstands my description of the reasoning of
other circuits in similar cases. See majority op. at 12-13. Of course I do
not "rel[y]" on the "decisions" of these circuits to support the proposition
that the law was clearly established at the time of the execution of the
warrant in the Wilson home, for the simple reason that these decisions
were announced after the execution of the warrant. However, the
reasoning used by these circuits is instructive.
17 Whether something is "self-evident" depends on who is doing the
looking.
18 And would presumably dismiss Berger as well.