The Supreme Court ruled 5 to 3 yesterday that police can get warrants to make unannounced searches of places - including newsrooms - owned or occupied by persons believed to be innocent or criminal activities.
The court acted in a California newspaper case that pitted the Justice Department and law enforcement groups against a dozen national press organizations of, among others, publishers, broadcasters, editors, reporters, and unions.
"The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that specific 'things' to be searched for and seized are located on the property," Justice Byron R. White wrote in the opinion for the court.
He said that "it is untenable to conclude that property may not be searched unless its occupant is reasonably suspected of crime and is subject to arrest."
But in a dissenting opinion. Justice John Paul Stevens warned of "extremely serious" consequences for "countless law-abiding citizens" who may possess papers relating to an on-going criminal investigation, such as "doctors, lawyers, merchants, customers, bystanders . . ."
In the second dissenting opinion, Justice Potter Stewart, joined by Justice Thurgood Marshall, wrote:
"Perhaps as a matter of abstract policy a newspaper office should receive no more protection from unannounced police searches than, say, the office of a doctor or the office of a bank.
"But we are here to uphold a Constitution. And our Counstitution does not explicitly protect the freedom of the press."
Justice Lewis F. Powell Jr., a member of the majority, replied that if the framers of the Bill of Rights had believed "that the press was entitled to a special procedure, not available to others, when government authorities required evidence in its possession, one would have expected the terms of the Fourth Amendment to reflect that belief."
Prominent editors condemned the decision, and the Reporters Committee for the Feedom of the Press denounced it as "a constitutional out-rage" for which "the Carter administration must share the blame."
Attorney General Griffin B. Bell told a recent meeting of the American Society of Newspaper Editors that he planned to try to make federal requirements for obtaining warrants involving the press as stringent as those for subpoenas for documents.)
Keith Fuller, president and general manager of the Associated Press, expressed concern that the decision "could open the door to harassment in situations where local authorities are irritated over news coverage."
Los Angeles Times editor Bill Thomas said that the "incredible" and "terrible decision" shows that Justice White "neither cares much nor knows much about the problems of the press." San Francisco Examiner editor Reg Murphy termed the ruling "a disaster" for the public.
Benjamin C. Bradlee, executive editor of The Washington Post, said, "How the majority can conclude that the threat and the fact of police searches of newspaper offices doesn't strike freedom of the press a crippling blow is beyond understanding." He continued:
"The Pentagon Papers could never have been published.The police would have entered newspaper offices and seized them, before newspapers could bring the facts to the people. If this decision were in force during Watergate, it requires no stretch of the imagination to see police in these offices on a fishing expedition for Messrs. Nixon, Mitchell. Haldeman, Ehrlichman, and compamy.
"The requirement of a warrant is no real protection, for the government can always find a judge to issue a warrant.
"It's just plain awful."
The case involved a surprise search by officers of the Palo Alto Police Department and the Santa Clara Country Sherrifs Department of the offices of the Stanford Daily, the Stanford University student newspaper, in 1971.
"This raid . . . was not an isolated incident but represents a new and increasingly popular police tactic against the press," Jack C. Landau, director of the reporters committee said.
"Police raids on news offices have occurred about 10 times in California, including four simultaneous raids conducted last December by police on four San Francisco-area TV stations," Landau said."It happened last September to a TV station in Rhode Island, and only three weeks ago police raided the AP bureau in Helena, Mont."
The Stanford Daily search was triggered by the occupation of offices in the university hospital by demonstrators who, armedwith sticks and clubs, attacked and injured nine officers stationed at one end of the hall adjoining the offices.
Two days later, the Daily carried photos indicating that a staff photographer might have made pictures of the assault. Officers then secured a warrant to search the Daily's office from a Palo Alto judge who found "just, probable and reasonable cause" to believe that developed and undeveloped film needed to identify the assailants "will be located" at the newspaper.
Later in the day, four officers went to the Daily where, Justice White wrote, they searched its "photographic laboratories, filing cabinets, desks, and wastepaper baskets . . . The officers apparently had opportunity to read notes and correspondence during the search." The search revealed only that the relevant photos already had been published.
The Daily and several of its staff then filed a civil Lawsuit accusing those involved in the search and the judge of having violated their constitutinal rights. U.S. District Court Judge Robert F. Peckham ruled for the newspaper in an opinion adopted by the 9th U.S. Circuit Court of Appeals.
He held that the Fourth Amendment bars issuance of a search warrant in the case of an innocent third party unless a sworn affidavit presents probable cause to believe that a document subpoena is impraticable, and unless it appears that the third party would remove or destroy the evidence in violation of a court order.
In the opinion reversing the courts below, Justice White said that Peckham had made a "sweeping revision of the Fourth Amendment" for which no precedent existed in the Supreme Court, any other federal court, or the Federal Rules of Criminal Procedure.
"Under existing law, valid warrants may be issued to search any property . . . at which there is probable cause to belive that . . evidence of a crime will be found," White said. "Search warrants are not directed at person; they authorize the search of 'places' and the seizure of 'things ' . . ."
Disagreeing, Justice Stevens said what in a "misconstruction of history," White misread the Fourth Amendment clause protecting "papers" against unreasonable searches. "It is unlikely that the authors expected private papers ever to be among the 'things' that could be seizedwith a warrant," he wrote.
White also wrote that the amendment itself "struck the balance between privacy and public need," and that there is "no occasion" for a court to try to strike a new balance by insisting that investigators proceed with a less intrusive document subpoena giving third parties advance notice.
White also said that third parties who may seem blameless actually may not be, and, if subpoenaed, may connive in having evidence disappear. Justice Stevens said that the Stanford Daily warrant made no claim that the paper would destroy evidence if notified of what the police wanted.
Judge Pecklham held that when First Amendment interests are involved, a search is permissible "only in the rare circumstance where there is a clear showing that evidence will be removed or destroyed and a restraining order would be futile.
White, rejecting fears such as the drying up of confidential sources if warrants replace subpoenas, said that magistates have 'ample tools . . . to confine warrants to search within reasonable limits."
Justice Stewart replied that such "facile" assurances "ignore common experience." He said that a confidential news source will be less likely to supply information if he knows it may be seen by policeman "rummaging through files, cabinets, desks and wastebaskets of a newsroom" with a warrant enabling them "to ransack the files, reading each and every one until they have found the one named in the warrant."
"The end result, wholly inimical to the First Amendment, will be diminishing flow of potentially important information to the public," Stewart said.
Justice William J. Brennan Jr., who was illwhen the case was argued, did not participate.