SAN FRANCISCO (KTVU) - San Francisco police obtained a search warrant in violation of the Shield Law in order to review a freelance videographer's cell phone to see who he was talking to and texting with and where he was going, according to his attorneys and documents provided to KTVU.
Byran Carmody received the warrant by certified mail and picked it up on Friday. The warrant was obtained on March 1, the document shows. Police also showed up on May 10 with sledgehammers to search Carmody's home and office. The Chronicle also reported that a total of seven search warrants have been served to Carmody. His lawyers told KTVU they only know about three.
The cell phone warrant, signed by a Judge Rochelle East, requests all "subscriber information, call detail records, SMS usage, mobile data usage and cell tower data" from Feb. 22 - the day the city's Public Defender Jeff Adachi died, until Feb. 23. But the warrant also requestes the ability for ongoing surveillance, to "conduct remote monitoring" of Carmody's phone "day or night." The warrant does not state that Carmody is a journalist.
The warrant says that Carmody is being investigated as a "co-conspirator" in the theft of a police report leaked to the media the day after Adachi died. Carmody sold the report to three TV stations, including to KTVU. In a prior interview, Carmody said he did not engage in any type of kickback scheme with his source, and did not pay the source any money. He refuses to reveal who leaked the document to him.
Under the Shield Law, journalists do not have to reveal their sources. Carmody's status as a freelance "stringer" has been a matter of debate for police, though First Amendment advocates state that he is clearly a working journalist.
The report leaked to Carmody portrayed Adachi in a negative light, stating Adachi was with another woman when he died, and showed pictures of an unmade bed and alcohol bottles. Later, the Medical Examiner's report showed that Adachi died of an "acute mixed drug toxicity with cocaine and ethanol." Adachi had long been a foe of the police department.
Carmody deferred comment to his attorneys.
In an email on Friday, Ben Berkowitz of Keker, Van Nest and Peters, said: "This is a previously undisclosed search warrant that we learned about today. The SFPD illegally obtained the warrant in secret ... and appear to have used it to spy on Bryan’s movements, phone calls and communications. This is a deeply alarming attack on the free press. It is entirely illegal under the First Amendment and California’s Shield Law. "
Thomas Burke, who is also representing Carmody, told KTVU that this is a "very, very broad request," which "theoretically has been tracking his movements."
He added that police knew Carmody had a working press pass from the chief's office and so any of the search warrants were not permitted.
San Francisco police on Friday responded with a May 24 statement from Police Chief William Scott, who acknowledged his concern by a "lack of due diligence by department investigators in seeking search warrants and appropriately addressing Mr. Carmody's status as a member of the news media."
He sais this has "raised important issues about our handling of this case and whether the California shiled law was violated."
Scott also called for an independent probe into the leak of the report.
In a scathing rebuttal to his apology, the San Francisco Police Officers Association called for Scott's resignation, saying that he directed Sgt. Joseph Obidi to write the warrant and knew what was happening every step of the way.
Meanwhile, Carmody said a significant amount of his property has been returned. The probable cause statement to obtain to the search warrant still is under seal.