When federal agents searched the ranch of Paul and Erma Berger in March of 1993, they acted not only pursuant to a search warrant, but also pursuant to a written contract with appellees Cable News Network and Turner Broadcasting System, authorizing the filming and recording of the search for broadcast on their environmental television shows “Earth Matters” and “Network Earth.” The' media wanted footage of the discovery of evidence showing that .Paul Berger was poisoning eagles, and the government wanted the publicity.
After Mr. Berger was convicted of one misdemeanor count for using a pesticide in a manner inconsistent- -with its labeling, 7 U.S.C. § 136j(a)(2)(G), and acquitted of three felony counts of the killing of at least one eagle, the Bergers sued both the media and the federal agents under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
On the Bivens action, the district court ruled that the federal agents were entitled to qualified immunity because there was, at the time of this episode, no clearly established law protecting individuals from the commercial recording of a seаrch of their residences. The court also held that the Bergers were collaterally estopped from litigating the reasonableness of the search because the same issues had been decided adversely to Mr. Berger in his criminal trial. In addition, the
We reverse the judgment in favor of the federal appellees on the Fourth Amendment claim because we hold the federal officers are not entitled to qualified immunity in this case. Because we hold that the issues litigated in the criminal proceeding were not the same as the issues presented to the district court in this civil suit, we also reverse the district court’s ruling that this action is barred. The judgment in favor of the media on the Bivens claim is reversed because, on the basis of the present record, we must consider the media to have acted jointly with the federal appellees, and hence “under color of law.” We affirm the district court’s ruling that the media are not liable under the Federal Wiretap Act, however.
On the state law claims, we reverse the court’s ruling in favor of the media on the trespass and infliction of emotional distress causes of action. We affirm the ruling on the conversion claim, and decline to enjoin further broadcasts.
In reviewing the grant of summary judgment to the appellees, we view the evidence in the light most favorable to the Bergers. Bagdadi v. Nazar,
FACTS AND PROCEDURAL BACKGROUND
Paul and Erma Berger reside on a 75,000 acre ranch in Montana. At the time of the search, Mr. Berger was 71 and Mrs. Berger was 81. In January of 1993, former employees of the Bergers apparently went to the United States Fish and Wildlife Service (“USFWS”) and told USFWS agents that they had seen Mr. Berger poison or shoot eagles a few years earlier. Upon hearing about the investigation, the media appellees, Cable News Network, Inc. and CNN employee Jack Hamann, together with Turner Broadcasting System, Inc. and TBS employees Robert Rainey and Donald Hooper, approached agents of USFWS to see if a television deal could be worked out. The media wanted footage for their environmental programs and the government wanted to publicize its efforts to combat environmental crime. On March 11, 1993, approximately two weeks before the search was executed, the Assistant U.S. Attorney in charge of Mr. Berger’s investigation, federal-appellee Kris McLean, and media correspondent Jack Hamann, executed the following letter agreement on CNN letterhead:
Dear Mr. McLean:
This confirms our agreement that the United States Attorney’s Office for the District of Montana agrees to allow CNN to accompany USFWS Agents as they attempt to execute a criminal search warrant near Jordan, Montana, some time during the week of March 22, 1993. Except as provided below, CNN shall have complete editorial control over any footage it shoots; it shall not be obliged to use the footage; and does not waive any rights or privileges it may have with respect to the footage. In return, CNN agrees to embargo the telecast of any videotape of the attempt to execute the search warrant until either: (1) a jury has been empaneled and instructed by a judge not to view television reports about the case; or (2) the defendant waives his right to a jury trial and agrees to have his case tried before a judge; or (3) a judge accepts a plea bargain; or (4) the government decides not to bring charges relating to the attempt to execute the search warrant.
Please acknowledge your agreement to the foregoing by executing the signature line below.
Sincerely, Jack Hamann, Correspondent, CNN Environment Unit.
Acknowledged signature of Kris McLean, Assistant United States Attorney for the District of Montana, Helena,-Montana,
cc: Jennifer Falk Weiss, CNN Legal Department. Chet Burgess, CNN Environment Unit.
On March 18, a magistrate judge issued a search warrant for the Bergers’ ranch, authorizing the search of the ranch and appurtenant structures, excluding the residence, for evidence indicating the taking of wildlife. According to the Bergers, the magistrate judge had no knowledge of the planned me
According to the Bergers, the media participated in a pre-search briefing the day before the search, at which the federal app'el-lees shared with the media details of the material included in the warrant and supporting materials that were supposed to remain under seal until after the search.
On the morning of the search, the government team, accompanied by a media crew, gathered on a county road leading to the ranch, to discuss the execution of the warrant. The cameras videotaped that gathering. The broadcast team then proceeded with the federal agents and AUSA McLean in a caravan of approximately ten vehicles to a point near the Bergers’ ranch. Media cameras mounted on the outside of government vehicles, or placed in their interior, documented every move made by the federal appellees. At all times during and immediately prior to the search, USFWS Special Agent Joel Serafford was wired with a hidden CNN microphone which was continuously transmitting live audio to the CNN technical crew.
Mr. Berger approached and met the caravan in a pickup truck on the road leading up to the ranch. Agent Serafford proceeded to inform Mr. Berger of the search warrant, and asked him whether he could ride to the house in Mr. Berger’s truck so that he could explain to Mrs. Berger what they were going to do. Mr. Berger allowed Agent Serafford to ride with him in the pickup truck. Upon arriving at the Bergers’ residence, the two men entered the house together. Audio recorded at the site indicates that Mr. Berger consented to Agent Scrafford’s entry into the home at this time. The parties disagree on whether the agents who entered the residence with Agent Serafford searched the residence for incriminating evidence, and whether Agent Scrafford’s subsequent entries into the home were consented to. However, it is undisputed that Agent Serafford recorded all his conversations with the Bergers inside the house.
The Bergers were not informed that Agent Serafford was wearing a microphone or that the cameras that were visible during the search belonged to the media. The media recorded more than eight hours of tape and it broadcast both the video footage and the sound recordings madе in the house.
Mr. Berger was tried on an amended information charging him with the taking of at least one golden eagle, in violation of 16 U.S.C. § 668(a); the killing of one ferruginous hawk, and one ring-billed gull, in violation of 16 U.S.C. §§ 703 and 707(a); the taking of at least one bald eagle in violation of 16 U.S.C. § 1538(a)(1)(B) and 16 U.S.C. § 1540(b)(1); and the use of a registered pesticide, Furadan, in a manner inconsistent with its labeling. The charge was that Mr. Berger applied Furadan to sheep carcasses with the intent of killing predators, including eagles, in violation of 7 U.S.C. §§ 1368(a)(2)(G).
Before trial, the magistrate judge denied a defense motion to suppress evidence on the grounds that the agents lacked probable cause to search and that the warrant did not accurately describe the property to be searched. Mr. Berger was acquitted of all charges, except the misdemeanor charge of using Furаdan contrary to its labeling.
The Bergers filed two actions in 1995, which proceeded on identical courses. The district court entered a final judgment in favor of all the appellees in both cases in February 1996, and these parallel timely appeals followed.
COLLATERAL ESTOPPEL
The district court ruled that because issues concerning the constitutionality of the search have already been litigated in Mr. Berger’s criminal case, this action was barred by collateral estoppel. The court relied on Bagley v. CMC Real Estate Corp.,
The difficulty with the district court’s reasoning is that a party is generally es-topped or precluded from litigating only those issues that have previously been decided. See Allen v. City of Los Angeles,
Because the magistrate judge in the criminal case was not presented with the specific issues raised in this action, the district court erred in holding that the Bergers’ Bivens action was barred. In the Bivens claim, the Bergers are concerned with whether the search was unreasonable because of the media’s involvement in the search.
In his motion to suppress in the criminal case, on the other hand, Mr.' Berger сhallenged the validity of the warrant itself. He contended that (1) it failed to establish probable cause because it contained no facts indicating either the veracity of the informants, or independent law enforcement investigation to corroborate the information given by the informants; (2) the search warrant was stale; and (3) the property designated in the search warrant was improperly described.
The magistrate judge’s rulings directly responded to these, and only these arguments. He agreed with the government that (1) the veracity of the informants could be presumed and that no corroboration was required; (2) the facts set forth in the affidavit indicated that Mr. Berger was engaged in an ongoing pattern of criminal activity, so the evidence was not stale, and (3) although the description of the real estate in the warrant was “grossly excessive and inaccurate,” the defect did not rise to such a level as to “offend[ ] the Constitution.”
This case is thus fundamentally different from Matthews, on which the district court relied. In Matthews, the plaintiff incorporated by reference in his Bivens brief the same Fourth Amendment arguments he had presented in his criminal appeal, i.e., that the affidavit submitted in support of the search warrant would not have established probable cause had the affiant not misled the issuing court. Because a panel of this court had already held in Matthews’ criminal appeal that the affidavit did establish probable cause, the panel reviewing Matthews’ Bivens action correctly deemed the civil action barred by collateral estoppel. Matthews,
THE BIVENS CLAIM
1. The violation of the Fourth Amendment and immunity
The Bergers claim that the federal appellees, AUSA Kris McLean and USFWS Special Agents Rodney C. Hanlon, Joel Serafford, Richard C. Branzell and Robert Prieksat, are individually liable for damages caused by their active participation in the commercial television/law enforcement enterprise conducted at the Bergers’ ranch. 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 officers are riot 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 programming. The television cameras invaded the residential property 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 enforcement. Yet, the federal agents obtained the warrant without disclos
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to bе seized.
U.S. Const. Amend. IV. We must heed its strictures on the potential abuse of law enforcement powers. This search violated its protections.
Regardless of whether a constitutional violation has occurred, the federal appellees are, of course, entitled to qualified immunity if they could reasonably have believed that their conduct violated no clearly established federal statutory or constitutional rights. See Harlow v. Fitzgerald,
The Second Circuit has held that qualified immunity does not protect federal officers in a ease where a Secret Service agent invited a TV news magazine into a private home to videotape a search. Ayeni v. Mottola,
Similarly, the Fourth Circuit has held that where the federal officer brings along an employee of a private corporation acting for the corporation’s purposes, not in aid of the officer, the federal officer’s conduct violates the Fourth Amendment and he is not entitled to qualified immunity. Buonocore v. Harris,
We find even further support for this view when we observe that no circuit decision has ever upheld the constitutionality of a warranted search where broadсast media were present to document the incident for non-law enforcement purposes, and where the videotaping and sound recording were outside the scope of the warrant. The cases on which the federal agents rely do not hold such searches are constitutional. In Stack v. Killian,
In none of these cases did law enforcement officials engage in conduct approaching the planning, cooperation and assistance to the media that occurred in this ease. The defendants rely upon a trio of older, lower court decisions that upheld the constitutionality of searches or arrests where the police invited the media to ride аlong and record or photograph the law enforcement activity. Moncrief v. Hanton,
2. The Open Fields Doctrine
The appellees also claim that they could have violated no privacy interests in videotaping the shed and other outbuildings on the ranch, because their cameras shot footage only from the open fields or of structures in which the Bergers had no expectation of privacy. See Katz v. United States,
Because the Fourth Amendment speаks only to “persons, houses, papers, and effects,” an individual cannot claim a constitutional violation on account of law enforcement officers’ warrantless searches of their “open fields.” Hester v. United States,
This argument misses the mark in this case. The open fields doctrine is not a license for the police to bring trespassers on to private property. It allows law enforcement officers to obtain evidence while on privately owned open fields. It would thus entitle the officers to prevail if the Bergers were suing them for a warrantless search of open fields for evidence of criminal activity. It does not immunize the officers from liability for conduct that has no law enforcement purpose.
Moreover, there is evidence in the record that the shed and other outbuildings that were a focus of the camеras were places in which the Bergers did have a reasonable expectation of privacy, in that they were located close to the house and guarded by a
3. The Invited Informer Doctrine
Throughout the execution of the search warrant, Agent Scrafford wore a microphone that transmitted live to the media the conversations between him and the Bergers in their house. The media appellees recognize that the home was outside the scope of the search warrant and that the Bergers did not consent to the microphone’s entry into the home. They claim, however, that their surreptitious recording of the Bergеrs’ conversations did not violate the Bergers’ Fourth. Amendment rights because the Bergers consented to Serafford’s presence and to his being a party to the conversations.
The appellees rely on the “invited informer” or “misplaced confidence” doctrine to support their claim. See, e.g., United States v. White,
In approving this investigative technique, the Supreme Court unmistakably declared that persons have no expectation of privacy or confidentiality in their conversations and relations with other persons, no matter how secretive the setting. The Court has recognized that legitimate law enforcement interests require persons to take the risk that those with whom they associate may be government agents.
Aguilar,
The invited informer doctrine does not apply in this case, because the surreptitious recording was not done for a legitimate law enforcement purpose. The recording in this case materially differs from the invited informer cases where thе informer was assisting law enforcement. Here, law enforcement authority was used to assist commercial television, not to further law enforcement objectives.
The appellees further contend that the Bergers’ conversations must have been “voluntary” because the magistrate judge in the criminal proceeding refused to suppress Mr. Berger’s statements for lack of the Miranda warnings.. Their contention is without merit. The only finding the magistrate judge made was that Mr. Berger had not been placed under the functional equivalent of a formal arrest when he made the statements, so his Miranda rights did not attach. See Berkemer v. McCarty,
The invited informer doctrine thus does not shield the media from liability. We recognized this more than twenty years ago when we held that eavesdropping by the media for public broadcast, even in conjunction with law enfоrcement, violates important privacy interests. Dietemann v. Time, Inc.,
Plaintiffs den was a sphere from which he could reasonably expect to exclude eavesdropping newsmen. He invited two of defendant’s employees to the den. One who invites another to his home or office takes a risk that the visitor may not be what hе seems, and that the visitor may repeat all he hears and observes when he leaves. But he does not and should not be required to take the risk that what is heard and seen will be transmitted by photograph or recording, or in our modern world, in full living color and hi-fi to the public at large or to any segment of it that the visitor may select. A different rule could have a most pernicious effect upon the dignity of man....
Dietemann,
We therefore hold that, the Bergers had an expectation of privacy in their conversations with Agent Serafford, and that appellees infringed that privacy when they recorded the Bergers’ conversations inside the house.
The Media as Government Actors
The final issue we must consider in the Bergers’ Bivens action is whether the media appellees may be held liable even though they were not agents or employees of the federal government. Ordinarily, Bivens liability and the corresponding liability of state aсtors under 42 U.S.C. § 1983, attaches only to the acts of government officials. Johnson v. Knowles,
In deciding whether conduct of private parties amounts to government action we engage in a highly factual inquiry. Howerton,
The appropriate test in this case is the joint action test. The Supreme Court has said it is satisfied when the plaintiff is able to establish an agreement, or conspiracy between a government actor and a private party. See Dennis,
In this case we have not only a verbal agreement, but a written contractual commitment between the government and the' media to engage jointly in an enterprise that only the government could lawfully institute — the execution of a search warrant — for the mutual benefit of both the private interests of the media and the government officials’ interest in publicity. It is also alleged that the federal entities shared confidential information with the media. Indeed, the record in this case suggests that the govеrnment officers planned and executed the search in a manner designed to enhance its entertainment, rather than its law enforcement value, by engaging in, for example, conversations with Mr. Berger for the purpose of providing interesting soundbites, and to portray themselves as tough, yet caring investigators, rather, than to further their investigation. This satisfies the joint action test.
At least one distinguished circuit judge has suggested that the media’s entry onto searched premises by virtue of government authority would alone be sufficient to constitute joint action. See Parker,
The cases relied upon by the district court are unavailing because they involved situations in which the private parties conducted searches on their own, and not under the government’s cloak of authority. See United States v. Miller,
FEDERAL WIRETAP STATUTE
Next, the Bergers claim that the media appellees violated the Federal Wiretap Act, 18 U.S.C. §§ 2510, et seq., by intercepting fоr broadcast the Bergers’ conversations with Agent Scrafford in the home. The Act is a broad prohibition against warrantless, surreptitious interceptions of wire, oral or electronic communications. 18 U.S.C. § 2511(1)(a)(c).
The Act, however, also contains a broad exception for conversations recorded by persons acting under color of law. That exception provides that:
It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party of the communication or one of the parties to the. communication has given prior consent to such interception.
18 U.S.C. § 2511(2)(c).
We have held that the media appellees were acting under color of law for purposes of Bivens liability. We recognize that the scope of the phrase “under color of law” in the wiretap context is not equivalent to the scope of the phrase in the general section 1983 or Bivens context. See, e.g., Thomas v. Pearl,
STATE LAW CLAIMS
Trespass
The Bergers have asserted a claim against the media for trespass. The Bergers allege that the media committed the tort by (1) entering into their home, for which there was no warrant, and (2) by generally being present at the Bergers’ ranch during the execution of a search warrant that they contend authorized only the law enforcement officers to enter their property. Trespass is generally premised upon the intentional interference with the property rights of another without consent. See Ducham v. Tumo,
The district court held that the Bergers had no possessory interest in the ranch at the time of the search because the government agents had temporary possession and control of the Bergers’ land during the execution of the search. See; e.g., Bills v. Aseltine,
The district court’s reasoning is even more problematic insofar as it was applied to the media’s entry into the Berger home, a place that the government did not have a warrant
The media’s contention that their entry was impliedly consented to by “custom and usage,” is also unavailing. See Florida Pub. Co. v. Fletcher,
Although neither the district court nor this court has exhaustively researched Montana trespass law, we have no reason to believe it departs from the generally recognized principles we have discussed. We therefore remand for the district court’s further consideration of the Bergers’ claim for trespass against the mеdia'.
Conversion
The Bergers sued the media appellees for conversion on the basis of the media’s capture of their images and voices. The district court found that recorded sounds and images cannot be the subject of a conversion claim. We agree.
To make out a valid conversion claim under Montana law, a plaintiff must prove that (1) he owns the property converted, (2) has a right to its possession, (3) the converter exercised unauthorized dominion over that property, and (4) the property owner has suffered damages as a result of the conversion. Eatinger v. Johnson,
Intentional Infliction of Emotional Distress
Under Montana law, this cause of action may arise “if thеre was serious or severe emotional distress to the plaintiff which was a reasonable foreseeable consequence of the defendant’s negligent or intentional act or omission.” See Sacco v. High Country Indep. Press, Inc.,
The district court rejected this claim on the ground that it had already found that none of the media appellees’ acts were unlawful, and therefore, emotional distress could not have been a reasonably foreseeable consequence of their actions.
In light of our holding that the Bergers have alleged a claim of interference with both their privacy and their property interests, we also remand this claim to the district court
INJUNCTION
The Bergers also sought an injunction preventing the media appellees from further broadcast of any or all parts of the video and sound gathered during the search. We agree with the district court that this is essentially a request for a prior restraint, which carries a “heavy presumption against its constitutional validity.” CBS, Inc. v. Davis,
CONCLUSION
We reverse the district court’s judgment in favor of the federal appellees in the Bergers’ Bivens claim, and also reverse the judgment in favor of the media appellees on that claim. We also reverse and remand the judgment in favor of the media appellees on the Bergers’ state law claims for trespass and intentional infliction of emotional distress, but otherwise affirm the judgment of the district court.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART for further proceedings. Costs are awarded to Appellants.