Attorneys frustrated by delays in efforts to unseal search warrants against journalist

Judge postpones decision on release of documents to review for potential confidential information

A judge postponed ruling on a motion Friday to unseal documents filed by police to obtain a search warrant against a San Francisco freelance journalist over concerns that doing so could reveal the identity of a confidential informant.

The home and office of television stringer Bryan Carmody were raided on May 10 and more than 100 personal items confiscated as San Francisco police officers sought to uncover the source of a leaked police report containing salacious details on the death of Public Defender Jeff Adachi in February. Other warrants were issued for Carmody’s telephone records, the San Francisco Examiner reported previously.

First Amendment advocates filed a motion to unseal the warrants more than two months ago, while Carmody through his lawyer, Tom Burke, filed a motion to quash the warrants.

But at a public hearing Friday Judge Victor Hwang declined to rule on both motions, citing concern that immediate disclosure could potentially reveal the identity of a confidential informant. Instead, Hwang called for a private hearing on July 24 to allow for redactions of the documents if necessary.

On Friday, Hwang indicated that he would likely issue a tentative ruling on the motion at a new hearing set for July 26.

Hwang also ordered an attorney for the San Francisco Police Department to notify the Attorney General’s office of the motion, which he indicated could be involved in a criminal investigation into the source of the leak.

After acknowledging that the raid may have been carried out improperly amid growing criticism and national scrutiny, Police Chief Bill Scott announced weeks after the raid that a criminal investigation would be handed over to outside agencies.

The attorneys seeking details of the warrants expressed frustration with the delay Friday.

“The saga continues,” said attorney Duffy Carolan, who represents the First Amendment Coalition (FAC), which filed the motion to unseal the warrants.

“It was a little monkey wrench — I wasn’t quite anticipating that there’d be another party [involved] and further delay,” said Carolan. “But hopefully the court will resolve it when [Hwang] hears any testimony in [the private hearing] through limited redaction, if there is any confidential informant in the search warrant materials.”

While Friday marked the first appearance for attorneys on both sides Hwang’s courtroom, Carolan said it was her sixth court appearance “begging for a hearing on the merits” of the motion and having “hearings to set hearings.”

Immediately after the raid, First Amendment advocacy groups condemned the raid as illegal under the California Shield Law, which affords journalists with protections to maintain the confidentiality of their sources.

In May, Superior Court Judge Samuel Feng delayed a hearing on whether the warrants violated the Shield Law and set dates to hear motions to quash the search warrants and to unseal those warrants separately. In total, five separate motions will be heard by five different judges.

“We had hoped that this could be resolved by a single judge since its the same parties, legal issues and probably substantially the same materials that are at issue,” Carolan said. “Kicking it out to five different judges is confounding the matter and delaying the public’s right to access.”

At stake is whether any information police obtained through the search warrants could be used to further criminal or administrative investigations into Carmody or his source.

Because Carmody’s legal protections as a journalist were violated, the warrant applications should be made public, said FAC Executive Director David Snyder on Friday. The documents could shed light on the question of whether the judges who initially signed off on the warrants — including Hwang — knew about Carmody’s status as a journalist, Snyder said.

“The delay here has become outlandish — these records should have been available shortly after the search warrant was executed without the need for any motion to be filed,” said Snyder. “We filed the motion as the court instructed us to do. The City had an opportunity to respond and did not oppose it … and then the judge put this out to five separate judges to handle each separate issue.”

“It’s getting to the point of absurdity,” he added.

Carmody has not been charged with criminal wrongdoing, although Scott stated previously that he was being investigated as a “co-conspirator” in regard to the leak.

Carmody has refused to divulge the source of the leaked police report and has stated that while he sold the contents of the report to various television stations, he did not pay for it himself.

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