Police obtained a warrant to track journalist Bryan Carmody’s phone records on March 1, 2019. (Courtesy photo)

Police obtained previously undisclosed warrant to monitor journalist’s phone before raid

Police chief has acknowledged searches may have violated First Amendment protections

San Francisco police executed a previously undisclosed search warrant to monitor the phone records of journalist Bryan Carmody more than a month before raiding his home and office as part of an investigation into a leaked report on the death of Public Defender Jeff Adachi.

The warrant, obtained and published by Carmody on Friday, was executed on March 1 and authorized police to “search for and seize certain electronic communications” as well as “records of such communications.” It was obtained before an April 18 hearing at which police told the Board of Supervisors they were investigating the leak of a report on Adachi’s Feb. 22 death and the Public Defender’s Office revealed it had learned that a stringer, or freelance reporter, had obtained the report and was selling it to TV stations.

The records and communications that were ordered seized by a San Francisco Superior Court judge included Carmody’s subscriber information, call detail records, SMS usage, mobile data usage and cell tower data, from 8:33 p.m. on Feb. 22 to 10:44 p.m. on Feb. 23. The warrant also permitted police to conduct “remote monitoring” of Carmody’s phone number “day or night,” and to employ an outside experts to “access and preserve any electronic data.”

The surveillance preceded the controversial raid on Carmody’s home and office on May 10, in which Carmody was detained for hours while police seized more than 100 of his personal items, including documents and computers.

The raid sparked outrage from First Amendment advocates who alleged that Carmody’s rights to protect his sources were protected under the California Shield Law, and Mayor London Breed and officials including District Attorney Geroge Gascon later denounced the raids.

Carmody, a longtime stringer in the region, has maintained that he was acting in his role as a journalist when he sold the report containing salacious details on Adachi’s death to three television stations. Carmody said he refused to give up his source when he was interviewed by police about the leak two weeks prior to the raids.

San Francisco Police Chief Bill Scott at first defended the raids but switched positions last Friday with a public apology after facing criticism not only in San Francisco but across the nation. That change of heart in turn prompted the San Francisco Police Officers Association to call for his resignation.

According to the warrant for Carmody’s phone records, police justified the search by stating that he was being investigated as a “co-conspirator in the theft of the San Francisco police report.”

“The criminal investigation focuses on the conspiracy to commit a crime, the theft of a police report, receiving stolen property, the unlawful dissemination of official information and the willful obstruction of justice,” the warrant states.

In response to a request seeking comment on the search warrant for Carmody’s phone records, an SFPD spokesperson forwarded a statement issued on May 24 by Scott in which he questioned his officers’ conduct and called for an independent investigation by a “separate investigatory body.” The spokesperson said that he could not provide further comment because the “investigation is open and ongoing.”

Carmody’s lawyer, Ben Berkowitz, called the previously undisclosed warrant “illegal” in a statement on Friday.

“The SFPD appears to have used the illegal warrant to spy on Bryan’s movements, phone calls and communications. This is an alarming and deeply disturbing attack on the free press in an attempt to unmask Mr. Carmody’s confidential source,” Berkowitz said in the statement. “The warrant provided for ongoing surveillance of a journalist. The SFPD’s actions are plainly illegal under the First Amendment and California’s Shield Law. This is outrageous conduct by the SFPD. We are calling on city officials to hold the SFPD accountable.”

lwaxmann@sfexaminer.com

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