___________

No. 95-1894

___________

Citicasters, doing business as *

WDAF-TV, formerly known as *

Great American Television *

and Radio Company, Inc., *

*

Appellee, * Appeal from the United States

* District Court for the

v. * Western District of Missouri.

*

Claire C. McCaskill, in her *

capacity as Jackson County *

Prosecutor, *

*

Appellant, *

*

Board of Police Commissioners *

of Kansas City, Missouri; *

Steven Bishop, in his capacity *

as Chief of Police of the *

Kansas City, Missouri Police *

Department; Ronald Parker, in *

his capacity as a Kansas City, *

Missouri police officer; Bailus *

M. Tate, in his official *

capacity as a member of the *

Board of Police Commissioners *

of Kansas City, MO; John A. *

Dillingham, in his official *

capacity as a member of the *

Board of Police Commissioners *

of Kansas City, MO; Jack W.R. *

Headley, in his official *

capacity as a member of the *

Board of Police Commissioners *

of Kansas City, MO; Dona R. *

Boley, in her official capacity *

as a member of the Board of *

Police Commissioners of Kansas *

City, MO; Emanuel Cleaver, II, *

in his official capacity as a *

member of the Board of Police *

Commissioners of Kansas City, *

MO, *

*

Defendants. *
-2-

___________

 Submitted: December 13, 1995

 Filed: July 19, 1996

___________

Before MAGILL, BRIGHT, and MURPHY, Circuit Judges.

___________

MAGILL, Circuit Judge.

Under the authority of a search warrant, investigating authorities

seized a videotape from WDAF-TV (WDAF), Kansas City, Missouri, which

recorded the commission of a crime. The station owner, Citicasters, Inc.,

brought this lawsuit for damages and injunctive relief for an alleged

violation of the Privacy Protection Act of 1980, 42 U.S.C. §§ 2000aa to

2000aa-12 (1994), against county prosecutor Claire C. McCaskill and Kansas

City police officials. The district court concluded that McCaskill had

violated the Act, but dismissed the actions against the police. It awarded

$1000 in liquidated damages and ordered the return of the videotape. See

Citicasters v. McCaskill, 883 F. Supp. 1282 (W.D. Mo. 1995).

McCaskill appeals, asserting that the district court erred in barring

her from showing that the circumstances relating to the seizure constituted

exceptions to the requirements of the Privacy Protection Act, that the

evidence did not support the judgment against her, and that injunctive

relief is not available under the Act. We agree with McCaskill that she

was improperly barred from invoking the exceptions to the Act, and that

there was insufficient evidence to support the judgment against her. We

reverse and remand.
 This conversation occurred at approximately 6:10 p.m. on

1

August 5, 1994, the day of the assault. Warren, however, had not

yet left town; he was, in fact, still on WDAF property. See J.A.

at 113 (testimony of Michael Lewis). After discontinuing his

conversation with Captain McInerney, station manager Lewis went to

speak with tourist Warren and his wife. Although the manager was

aware that the police desired a copy of the videotape of the

assault, that the station had refused to allow the police to

reproduce their copy, and that Warren had the original tape but was

about to leave town, Lewis failed to apprise Warren that the police

would like a copy of the tape. When Lewis again contacted the

police several minutes later, at 6:14 p.m. on Friday, August 5,

1994, to provide them with Warren's home phone number and address

in Texas and inform them that Warren would be home three days

later, Lewis failed to mention that Warren was still in town, and

still on station property. See id. at 111 (recorded phone message

from Lewis). Warren left WDAF's parking lot at approximately 6:25

p.m. on August 5, 1994.

-3-

I.

On August 5, 1994, at approximately 1:10 p.m., Julia Flege was

assaulted in public and brutally murdered. Earl Warren, a tourist in

Kansas City, captured the assault on videotape and, within hours, sold the

videotape to plaintiff Citicasters, Inc., which operated WDAF, a local

television station. WDAF presented a small portion of the tape on its 6

p.m. news broadcast later that same day.

Meanwhile, at approximately 1:30 p.m. on Friday, August 5, 1994,

Chancey E. Wright was detained in connection with Flege's murder. Under

Missouri law, Mo. Ann. Stat. § 544.170 (Vernon 1994), Wright had to be

charged with the crime by 9:30 a.m. on Saturday, August 6, 1994, or be

released. Learning of the videotape by its broadcast on the 6 p.m. news,

Captain Vince McInerney, commander of the media relations office of the

Kansas City Police Department, immediately contacted WDAF to request a copy

of the videotape. WDAF refused to cooperate. Michael Lewis, the station's

assignment manager, told McInerney that tourist Warren had left town with

the original tape, and that, while the 1
 The search warrant application verified the following facts: 2

On [Friday,] 8/5/94 at approximately 1310 hours, Julia A.

Flege, W/F, 7/14/62, was abducted from the Liberty

Memorial Mall, 101 Memorial Drive. She was subsequently

taken to the Santa Fe Apts.[,] 2525 Main, where she was

killed by her abductor. As the suspect attempted to

escape 2525 Main, Kansas City, Missouri Police Officer

ordered the suspect to halt and drop his gun. The

subject turned towards the officer and pointed the

handgun at the officer. The officer fired one shot at

the subject, missing him. The news broadcast at 1800

hours on Channel 4, [four hours and fifty minutes after

Flege's abduction,] revealed a video tape shot by a

private citizen which showed the abduction of the victim

as well as the discharge by the Kansas City[,] Missouri

police officer. Upon contacting official of Channel 4

[approximately five hours after Flege's abduction] and

requesting a copy of the tape, detectives were advised

that the tape could be reviewed but no copies would be

released without a Court Order. 

J.A. at 231.

-4-

police could view the portion of the tape that the station had aired on the

newscast, they could only obtain a copy of the entire tape through a court

order.

The Kansas City police sought a search warrant for WDAF to obtain the

videotape on the evening of August 5, 1994. In support of the application,

affiant Ronald Parker, a police veteran of twenty-two years and a detective

in the police department's homicide unit, submitted an affidavit which

recited the circumstances of victim Flege's murder, including the killer's

subsequent flight and assault on a police officer, and the existence of the

videotape. At 9:20 p.m. on the evening of August 5, 1994, approximately 2

eight hours after the assault and abduction of Flege, the Honorable Richard

E. Standridge, Associate Circuit Judge for Jackson County, Sixteenth

Judicial Circuit, State of Missouri, issued a search warrant to the police.

The warrant described the area to be searched--"The offices of the Great

American Television and Radio Station, also known as WDAF Channel
-5-

4, at 3030 Summit, Kansas City, Jackson County, Missouri"--and the items

to be seized--"The original video cassette tape, and copies of the video

cassette tape, which show the abduction of Julia A. Flege which occurred

at 101 Memorial Drive on 8/5/94 at approximately 1310 hours and the

subsequent shooting which involved a Kansas City, Missouri Police Officer,

occurring at 2525 Main"--and that there was probable cause to believe that

the tape was at WDAF. J.A. at 232.

Police officers, accompanied by prosecuting attorneys, served the

warrant at WDAF that evening at approximately 10 p.m., some nine hours and

fifty minutes after the assault and abduction of Flege. An employee of

WDAF met them at the station and called Michael McDonald, the vice

president of news for WDAF. McDonald immediately came to the station. The

officers showed vice president McDonald the search warrant and demanded the

tape. McDonald responded that he would give them a copy of the material

that had been aired on the newscast, but that he would only surrender the

entire tape with a subpoena. Vice president McDonald called an attorney

for WDAF who arrived at the station at approximately 11:15 p.m. on Friday

evening. After further discussion and over WDAF's objections, the police

finally obtained possession of WDAF's copy of the entire tape sometime

between 11:45 p.m. and midnight that night. WDAF retained at least one

copy of the portion of the tape that had been shown on the newscast.

Citicasters brought this suit against defendants, alleging a

violation of the Privacy Protection Act because the police obtained the

videotape through a search warrant, rather than a subpoena duces tecum.

The district court held an expedited hearing on August 11-12, 1994. The

district court entered a judgment against
 The district court also determined that the police were

3

immune from suit under the Act and dismissed the claim against

them. The district court dismissed a related claim for violations

of civil rights under 42 U.S.C. § 1983 against all the defendants.

These dismissals are not before us.

-6-

McCaskill for $1000 liquidated damages under the Privacy Protection Act,3

and McCaskill appeals.

II.

The Privacy Protection Act generally prohibits government officials

from searching for and seizing documentary materials possessed by a person

in connection with a purpose to disseminate information to the public. See

42 U.S.C. § 2000aa(b). Instead, the Act requires law enforcement agencies

to rely on the cooperation of the media or subpoenas duces tecum to obtain

such documentary materials. The Act contains important exceptions,

however, where searches and seizures are permitted. The Act provides that

it:

shall not impair or affect the ability of any government

officer or employee, pursuant to otherwise applicable law, to

search for or seize such materials, if--

 (1) there is probable cause to believe that the person

possessing such materials has committed or is committing

the criminal offense to which the materials relate . . .

 (2) there is reason to believe that the immediate

seizure of such materials is necessary to prevent the

death of, or serious bodily injury to, a human being;

 (3) there is reason to believe that the giving of

notice pursuant to a subpena duces tecum would result in

the destruction, alteration, or concealment of such

materials; or

 (4) such materials have not been produced in response

to a court order directing compliance with a subpena

duces tecum, and--
 The only legislative history cited by the district court to 4

support its conclusion is a reference by the Senate Committee on

the Judiciary, during its discussion of one of the exceptions to

the Act, to factors which "might be considered by a magistrate."

1980 U.S.C.C.A.N. 3950, 3959. See Citicasters, 883 F. Supp. at

1288.

-7-

(A) all appellate remedies have been

exhausted; or

(B) there is reason to believe that the delay in an

investigation or trial occasioned by further

proceedings relating to the subpena would threaten

the interests of justice. 

42 U.S.C. § 2000aa(b) (emphasis added).

As an affirmative defense, McCaskill asserted that the exceptions at

42 U.S.C. §§ 2000aa(b)(2) and (3) applied, barring Citicasters from

recovering under the Act. Noting that Detective Parker's affidavit in

support of the search warrant did not expressly recite exceptions (2) and

(3), the district court refused to allow McCaskill to prove the existence

of these exceptions in this case. The district court stated:

[T]he question for the court to consider is whether the

defendant may claim an exception to the Act when the

application for the search warrant is devoid of reasons

supporting the exception. The court finds that to allow a

defendant to claim an exception, after a search and seizure has

occurred, allows a defendant to justify its conduct in

hindsight. The legislative history of the Act envisioned that

a defendant would state the basis for exceptions when applying

for the warrant. Moreover, if circumstances exist which

constitute an exception, the defendant should state these

reasons in an affidavit for a warrant. Thus, because the

affidavit in support of the search warrant did not set forth

reasons which fall under an exception to the Act, the court

will not allow defendants to now invoke those exceptions.

Citicasters, 883 F. Supp. at 1288. 

4
 This appears to be an issue of first impression. We note

5

that the United States Attorney General, pursuant to the Privacy

Protection Act's mandate, see 42 U.S.C. § 2000aa-11, has

promulgated guidelines defining the procedures by which federal

agents may seek search warrants to obtain documentary materials in

the hands of disinterested third parties. See 28 C.F.R. §§ 59.1-

59.6 (1995). At § 59.1(b), the regulations declare that "[i]t is

the responsibility of federal officers and employees to recognize

the importance of these personal privacy interests, and to protect

against unnecessary intrusions." Factors which a government

officer should consider in deciding whether to seek a search

warrant or a subpoena include "[w]hether the immediate seizure of

the materials is necessary to prevent injury to persons or property

. . . ." § 59.4(c)(2)(ii). Nowhere do the regulations advise

federal agents to document these concerns in the application for a

search warrant; rather, these are determinations to be made by the

federal agents, their supervisors, and agency attorneys. See

§ 59.4(a)(2).

-8-

We review the district court's interpretation of the Privacy

Protection Act de novo. See United States v. Lowe, 50 F.3d 604, 606 (8th

Cir.), cert. denied, 116 S. Ct. 260 (1995). There is no mention in the

Privacy Protection Act of any requirement that search warrant applications

describe exceptions to the Act, and we must determine if it was proper for 5

the district court to rely on the legislative history of the Act to create

such a requirement. 

It is a fundamental canon of statutory interpretation that

we begin with the language of the statute and ask whether

Congress has spoken on the subject before us. If the intent of

Congress is clear, that is the end of the matter; for the court

. . . must give effect to the unambiguously expressed intent of

Congress.

Norfolk & Western Ry. v. American Train Dispatchers' Ass'n, 499 U.S. 117,

128 (1991) (quotations omitted); see also Negonsott v. Samuels, 507 U.S.

99, 104 (1993) ("Our task is to give effect to the will of Congress, and

where its will has been expressed in reasonably plain terms, that language

must ordinarily be regarded as conclusive.") (quotations omitted); Barnhill

v. Johnson, 503 U.S. 393, 401 (1992) ("appeals to statutory history are

well-taken
 The dissent argues that "it is the absence of procedural

6

requirements rather than any ambiguity that is crucial in deciding

this case." Slip op. at 15. We disagree. It is precisely the

lack of ambiguity that is crucial in this case, for this mandates

that we enforce the plain language of the statute. That Congress

did not choose to substantially interfere with the procedures by

which state judicial officers issue search warrants to state law

enforcement officials more likely reflects, in our view,

congressional appreciation of the proper restraints of federalism,

rather than congressional ineptitude in drafting the legislation

that it intends.

-9-

only to resolve statutory ambiguity") (quotations omitted); Virginia Univ.

Hosp., Inc. v. Casey, 499 U.S. 83, 98-99 (1991) ("The best evidence of

[statutory] purpose is the statutory text adopted by both Houses of

Congress and submitted to the President. Where that [statutory text]

contains a phrase that is unambiguous--that has a clearly accepted meaning

in both legislative and judicial practice--we do not permit it to be

expanded or contracted by the statements of individual legislators or

committees during the course of the enactment process."); Arkansas AFL-CIO

v. FCC, 11 F.3d 1430, 1440 (8th Cir. 1993) (en banc) ("If the intent of

Congress is clear from the plain language of the statutory provision, that

will be the end of the judicial inquiry."). This rule of statutory

interpretation exists because "when, as here, the statutes are

straightforward and clear, legislative history and policy arguments are at

best interesting, at worst distracting and misleading, and in neither case

authoritative." Northern States Power Co. v. United States, 73 F.3d 764,

766 (8th Cir. 1996). 

We find no ambiguity in the Privacy Protection Act. See Brown v.

Gardner, 115 S. Ct. 552, 555 (1994) ("Ambiguity is a creature not of

definitional possibilities but of statutory context."). The Act presents

a straightforward statutory scheme for protecting those engaged in

information dissemination from government intrusion by prohibiting searches

and seizures of documentary materials except where government officials

have a reasonable belief that a statutory exception applies. Although

Congress could have chosen to include elaborate procedural requirements in

the Act, it instead created a private cause of action as the exclusive 6
Indeed, we note that Congress did choose to somewhat modify

the search warrant application process in other circumstances. See

42 U.S.C. § 2000aa(c) (where 42 U.S.C. § 2000aa(b)(4)(B) exception

applies, person possessing materials may submit an affidavit

contesting issuance of warrant). We find that this strongly

suggests that Congress is capable of enacting the legislation that

it intends, and that by its silence Congress did not mean to create

additional procedural requirements. The district court, however,

interpreted this provision somewhat differently. While noting that

"[a] literal reading of the statute reveals that an affidavit can

only be submitted when a search warrant is obtained after noncompliance with a subpoena duces tecum," Citicasters, 883 F. Supp.

at 1290, the district court nevertheless required the availability

of an affidavit whenever "a government entity bypasses the primary

protection provided by a subpoena." Id. While we may not reach

this point on appeal because it was not raised by the parties, we

do observe that the "literal reading" of a statute is often the

best place to begin, and end, an interpretive analysis.

 The dissent, arguing that "the majority pulls the teeth out 7

of the statute" by failing to add procedural requirements, Slip op.

at 20, simply ignores this legislative determination that the award

of damages is sufficient to ensure an effective statute.

-10-

remedy to ensure that the protections of the Act would be effective, and

allowed recovery of damages against those found liable for violations of

the Act. See 42 U.S.C. §§ 2000aa-6(a), (d), (f). 

7

Where Congress has provided a specific means for achieving its

purpose, we must honor its decision, and not embellish its legislative

scheme with additional procedural innovations. See, e.g., Director, Office

of Workers' Comp. Prog. v. Newport News Shipbuilding & Dry Dock Co., 115

S. Ct. 1278, 1288 (1995) ("Every statute proposes, not only to achieve

certain ends, but also to achieve them by particular means--and there is

often a considerable legislative battle over what those means ought to

be."); MCI Telecommunications Corp. v. American Tel. & Tel. Co., 114 S. Ct.

2223, 2232 n.4 (1994) (Courts and agencies "are bound, not only by
 Although, by its terms, the Privacy Protection Act

8

significantly restricts the ability of law enforcement officials to

search for and to seize certain documentary evidence of crimes,

Congress took pains to limit the Act's chilling effect on law

enforcement. See, e.g., 42 U.S.C. § 2000aa-6(e) (materials shall

not be excluded as evidence because of a violation of the Act); 42

U.S.C. § 2000aa-6(b) (creating good faith defense to civil action).

With due respect, the district court's expansive interpretation of

the Act simply disregards the balance struck by Congress between

preserving the ability of government officials to prosecute crime

and protecting those engaged in the dissemination of information

from government intrusion.

-11-

the ultimate purposes Congress has selected, but by the means it has deemed

appropriate, and prescribed, for the pursuit of those purposes."). Had

Congress desired to create additional procedural requirements to guard

against post hoc justifications for searches, it presumably would have done

so; it is not for the federal courts to redraft legislation merely because

we would have selected different procedures.8

Because there is no ambiguity in the statute, the district court

erred in relying on the legislative history of the Privacy Protection Act.

Because the Privacy Protection Act does not require an application for a

search warrant to describe any exceptions to the Act, the district court

erred in imposing such requirements on the defendants in this case.

McCaskill should have had the opportunity to prove that the exceptions

claimed in fact existed, and we remand for a hearing on this issue.

III.

The district court found that "Claire McCaskill, the Prosecuting

Attorney of Jackson County, Missouri, assisted in executing the search

warrant on plaintiff at its business premises." Citicasters, 883 F. Supp.

at 1285. This Court reviews a district court's factual findings for clear

error. See Stevens v. McHan, 3 F.3d 1204, 1206 (8th Cir. 1993). "A

factual finding is
-12-

clearly erroneous if it is not supported by substantial evidence in the

record, if it is based on an erroneous view of the law, or if the reviewing

court is left with the definite and firm conviction that an error has been

made." Burns v. McGregor Elec. Indus., Inc., 955 F.2d 559, 563 (8th Cir.

1992). McCaskill asserts that there is insufficient evidence to support

the district court's finding that she or anyone acting on her behalf

participated in the execution of the search warrant. 

McCaskill's position is well taken. At the initial hearing, an

assistant county prosecutor testified that "the prosecutor's office is not

directly involved with the searching, or the serving [of] a search

warrant." J.A. at 91. Indeed, under Missouri law, a search warrant "may

be executed only by a peace officer." Mo. Ann. Stat. § 542.276.7 (Vernon

1994). 

We are aware of only two instances in the record which would indicate

that McCaskill engaged in the search and seizure. First, in her answer to

the complaint, McCaskill, who was one of a host of defendants in this

action, admitted that "defendants came to plaintiff's business premises and

served plaintiff with a search warrant." J.A. at 129, 140. Second, at the

preliminary hearing, McCaskill examined an assistant prosecuting attorney

from her office. One question she asked the attorney began, "At the point

in time that we took the tape . . . ?" J.A. at 79. A question from an

attorney is hardly strong evidence of a proposition, however, and the

testimony at trial indicated that McCaskill herself was not present when

the warrant was initially served. See J.A. at 54. 

Nevertheless, if McCaskill's statements are not sufficient evidence

of her participation in the search and seizure, they were at least

misleading to the plaintiffs. The hearing held in the district court was

not a full hearing, and Citicasters should have the opportunity to

establish that McCaskill directed, supervised,
-13-

or otherwise engaged in the execution of the warrant to such an extent that

a finding can be made that she "searched for or seized" the tape. See 42

U.S.C. § 2000aa(b). Accordingly, we remand and "exercise our discretion

to order a new trial rather than a judgment for defendant." F & H Inv. Co.

v. Sackman-Gilliland Corp., 728 F.2d 1050, 1055 (8th Cir. 1984) (citing 9

Wright & Miller, Federal Practice & Procedure: Civil § 2540 & p. 617

(1971)).

IV.

The district court required that the actual tape seized be returned

to the plaintiff: 

With regards to plaintiff's request for return of its

videotape, the court notes that at the hearing held on August

12, 1994, defendants agreed to return to plaintiff the

videotape seized on August 5. The court was under the

impression that the tape was returned to plaintiff. Indeed,

defendants contend that the original tape has been returned to

plaintiff. Plaintiff, however, claims that its request for

injunctive relief for return of the videotape is not mooted

because defendants have provided plaintiff with a copy of the

videotape in question. Plaintiff maintains that defendants

still retain the original videotape. It was this court's

understanding that the original videotape was returned to the

plaintiff. Thus, the defendants shall return the original

videotape to the plaintiff if they have not already done so.

Citicasters, 883 F. Supp. at 1289. 

The district court labeled this order as a form of injunctive relief,

and the parties have briefed the issue in that context. We conclude,

however, that the district court was not actually granting an injunction,

but was rather reaffirming the prior agreement of the parties. It is

unclear from the record whether the parties disputed Citicaster's right to

regain the actual tape seized. If there is any continuing dispute

concerning the return
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of the seized tape, we leave its resolution to the district court on

remand. 

V.

We reverse the district court and remand for an evidentiary hearing

on the issue of McCaskill's participation in the search and seizure. If

the district court finds that McCaskill did participate in the search and

seizure, the court shall also determine whether, at the time of the search,

McCaskill possessed a reasonable belief that an exception to the Privacy

Protection Act existed.

BRIGHT, Circuit Judge, concurring in part and dissenting in part. 

Under most circumstances, the Privacy Protection Act prohibits the

government, in connection with the investigation of a criminal offense,

from searching and seizing documentary materials from news or information

organizations. See 42 U.S.C. § 2000aa(b). Under the Act, the government

may not obtain a search warrant but must instead rely upon a subpoena duces

tecum or the voluntary release of the materials. The Act, however, exempts

certain situations where immediate seizure is justified, such as where a

risk exists that the materials may be destroyed or another person may be

physically harmed. The case before us raises the question whether

government officials may claim such exceptions to the Privacy Protection

Act when the application for the search warrant is devoid of any statements

supporting those exceptions. Because I conclude that the Privacy

Protection Act constrains government action by requiring the government to

establish an exception to the Act before it can obtain a warrant to search

the office of a news agency, I dissent from Part II of the opinion. 

I agree with the majority that "[t]he task of resolving the dispute

over the meaning of [a statute] begins where all such
 The text of the statute implies that the issuing magistrate 1

judge must find the existence of an exception before a lawful

warrant can issue. One of the exceptions pertains to instances

where the party in possession has failed to comply with a subpoena

duces tecum and further delay would "threaten the interests of

justice." 42 U.S.C. § 2000aa(b)(4). In such an event, section

2000aa(c) requires that the person in possession be afforded the

opportunity to submit an affidavit stating why the materials sought

are not subject to seizure before the warrant issues. This

exception, without directly stating so, presupposes that a

magistrate judge, rather than the investigating authorities, makes

the determination. 

-15-

inquiries must begin: with the language of the statute itself." United

States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989). The Privacy

Protection Act specifically lists the four exceptions to the Act and

requires "reason to believe" that one of the invoked exceptions applies.

Contrary to the position of the majority, however, the statute contains no

direct statement as to whether it is the issuing magistrate judge who must

determine the existence of an exception or whether its existence can be

asserted after-the-fact by the investigating authorities. The Act

1

establishes a substantive standard but is silent as to the appropriate

procedural requirements.

Although the majority opinion explains that the language of the

statute is not ambiguous, it is the absence of procedural requirements

rather than any ambiguity that is crucial in deciding this case. The areas

the statute addresses are clear and we need not and should not embellish

upon them. The statute, however, does not address the process for

obtaining a warrant. It is this absence of a statutory directive which

faces us here. 

Where the statute does not speak on an issue, this court has turned

to other sources to determine the intent of Congress. The legislative

history may provide guidance. See Wisconsin Public Intervenor v. Mortier,

501 U.S. 597, 611-12 n. 4 (1991); Arkansas AFL-CIO v. F.C.C., 11 F.3d 1430,

1440 (8th Cir. 1993) (en banc)
 In explaining its decision, the district court stated, 2

It should be apparent that means less drastic than

a search warrant do exist for obtaining materials in

possession of a third party. A subpoena duces tecum,

obviously, is much less intrusive than a search warrant:

the police do not go rummaging through one's home,

office, or desk if armed only with a subpoena. And,

perhaps equally important, there is no opportunity to challenge the

search warrant prior to the intrusion, whereas one can always move

to quash the subpoena before producing the sought-after materials.

Stanford Daily v. Zurcher, 353 F. Supp. 124, 130 (N.D. Cal. 1972).

-16-

(conducting a Chevron analysis). The circumstances surrounding the

enactment of the statute can also be helpful in deciphering congressional

intent. See Security Bank Minnesota v. C.I.R., 994 F.2d 432, 436 (8th Cir.

1993). When interpreting a statute, we must consider the statute in light

of judicial concepts existing before it was enacted. Estate of Wood v.

C.I.R., 909 F.2d 1155, 1160 (8th Cir. 1990); Stillians v. Iowa, 843 F.2d

276, 280 (8th Cir. 1988). Finally, we look to the overall purpose of the

Act. See In re Graven, 936 F.2d 378, 385 (8th Cir. 1991). 

The Privacy Protection Act was prompted by the Supreme Court's

decision in Zurcher v. Stanford Daily, 436 U.S. 547 (1978). See S. Rep.

No. 874, 96th Cong., 2d Sess., reprinted in 1980 U.S.C.C.A.N. 3950, 3950-

51. In Zurcher, the Stanford Daily, a student newspaper, had published

articles and photographs of a demonstration at which several police

officers were assaulted. 456 U.S. at 550-51. As part of its

investigation, the district attorney obtained a search warrant and searched

the newspaper's offices for additional photographs of the incident. Id.

The newspaper brought a declaratory judgment action claiming, among other

things, that the search warrant was issued in violation of the Fourth

Amendment. The district court held, "unless the Magistrate has before him

a sworn affidavit establishing proper cause to believe that the materials

in question will be destroyed, or that a subpoena duces tecum is otherwise

`impractical', a search of a third party for materials in his possession

is unreasonable per se, and therefore violative of the Fourth Amendment."

Stanford Daily v. Zurcher, 353 F. Supp. 124, 127 (N.D. Cal. 1972). The 2
-17-

court of appeals affirmed per curiam, adopting the opinion of the district

court. 550 F.2d 464 (9th Cir. 1977). The Supreme Court reversed, holding

that the Fourth Amendment does not provide any special protection against

search and seizure for the possessor of documentary evidence who is not a

suspect in the offense under investigation. 436 U.S. at 560.

At the close of the majority opinion in Zurcher, the Court stated,

"[o]f course, the Fourth Amendment does not prevent or advise against

legislative or executive efforts to establish nonconstitutional protections

against possible abuses of the search warrant procedure, . . ." Id. at

567. Congress took the "invitation" of the Court and enacted the Privacy

Protection Act of 1980. See 1980 U.S.C.C.A.N. at 3952.

Congress stated that the Privacy Protection Act responded to the

Zurcher decision. Id. at 3950. In Zurcher, the Supreme Court addressed

whether the application for a search warrant must establish "special

circumstances" before a warrant to search the office of a news agency may

lawfully issue. Zurcher focused entirely on the substantive issue of what

circumstances must be established; there was no dispute as to when or by

whom the determination would be made. Both Justice White's majority

opinion and the dissenting opinion of Justice Stevens indicated that it was

the issuing magistrate judge who would determine whether the necessary

requirements were fulfilled. See 436 U.S. at 550, 577. Thus the

legislative reaction to Zurcher focused on the substantive standard rather

than the undisputed procedural framework. The
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logical conclusion is that Congress envisioned the procedural framework to

remain intact.

The legislative history of the Act indicates that Congress assumed

that the exceptions to the Act would be considered by a magistrate judge

prior to the issuance of a search warrant. In discussing the third

exception to the Act, the Senate Report provides: 

Among the factors which the Committee believes might be

considered by a magistrate in determining whether materials

might be destroyed are evidence of a close personal, family or

business relationship between the person in possession of the

material with a person who is a suspect; evidence of prior,

similar conduct by a party who may exert control of the

material; or evidence that a party in possession of the

material has expressed an intent to hide, move, or destroy the

material sought.

1980 U.S.C.C.A.N. at 3959-60 (emphasis added). Senators Orrin Hatch and

Alan Simpson of the Senate Judiciary Committee submitted "additional views"

which were included in the legislative history. The Senators stated:

The Stanford Daily case held that the Constitution does

not require a magistrate to conclude that warrant searches of

the press are necessarily "unreasonable". The committee in

adopting [the Act] is, in effect, instructing magistrates and

others empowered to issue warrants that a search directed at

the documentary materials of journalists is to be considered in

itself "unreasonable" in the absence of certain enumerated

circumstances. 

1980 U.S.C.C.A.N at 3968. 

The legislative history of the Act also indicates that although the

Privacy Protection Act is a statutory rather than a constitutional

limitation on the power of the government, it was
 The language of the statute implies that the Act was intended 3

to be a statutory extension of the Fourth Amendment. Section

2000aa-6(e) provides that the statute does not extend the

application of the exclusionary rule: "Evidence otherwise

admissible in a proceeding shall not be excluded on the basis of a

violation of this chapter." Nothing on the face of the Act

specifically invokes the exclusionary rule. Unless the Act were

intended as a statutory extension of the Fourth Amendment,

disclaiming the exclusionary rule would be an anomaly. The

presence of this provision thus indicates that the statute extends

the framework of the Fourth Amendment, but is not intended to

extend the exclusionary rule. 

 Justice Jackson underscored the importance of a neutral

4

magistrate judge in effectuating the goals of the Fourth Amendment:

The point of the Fourth Amendment, which often is

not grasped by zealous officers, is not that it denies

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intended to be read in conjunction with the Fourth Amendment. First,

3

Zurcher was a Fourth Amendment case. Second, the "legal history" of the

Privacy Protection Act as developed in the Senate Report is comprised

entirely of the historical development of the Fourth Amendment. See 1980

U.S.C.C.A.N. at 3952-54. Finally, in defining the purpose of the Act, the

Senate Report stated, "The Committee bill, as amended, affords the press

and certain other persons not suspected of committing a crime with

protections not provided currently by the Fourth Amendment." 1980

U.S.C.C.A.N. at 3950. The legislative intent was to build upon the Fourth

Amendment.

In United States v. United States District Court, 407 U.S. 297, 316

(1972), the Supreme Court relayed "the very heart of the Fourth Amendment

directive:

where practical, a governmental search and seizure should

represent both the efforts of the officer to gather evidence of

wrongful acts and the judgment of the magistrate that the

collected evidence is sufficient to justify invasion of a

citizen's private premises or conversation. Inherent in the

concept of a warrant is its issuance by a "neutral and detached

magistrate."

Id. (citation omitted). In the warrant process, it is the 4
law enforcement the support of the usual inferences which

reasonable men draw from evidence. Its protection

consists in requiring that those inferences be drawn by

a neutral and detached magistrate instead of being judged

by the officer engaged in the often competitive enterprise of ferreting out crime.

Johnson v. United States, 333 U.S. 10, 13-14 (1948).

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province of the magistrate judge to independently find the existence of the

requisite conditions before a lawful warrant can issue. When viewed in

conjunction with this constitutional allocation of responsibility, the

Privacy Protection Act logically places the determination of whether an

exception exists in the discretion of the magistrate judge issuing the

search warrant. 

By construing the Act so as not to require a prior judicial

determination, the majority pulls the teeth out of the statute. The

purpose of the Privacy Protection Act is to prevent the search and seizure

of documentary materials from persons disseminating information. Afterthe-fact review can only punish violation, not prevent it. Furthermore,

permitting an after-the-fact showing of what was "known" to the affiant but

not communicated to the magistrate judge contains too great a potential for

abuse; there could often be no assurance that the critical facts and

details were in fact known prior to the issuance of the warrant. See 2

Wayne R. LaFave, Search and Seizure § 4.3(a), at 459 (3d ed. 1996). 

In its decision, the majority ignores the circumstances surrounding

the enactment of the Privacy Protection Act, its legislative history, its

intimate association with Fourth Amendment principles, and its purpose of

preventing searches and seizures. For these reasons, I must dissent as to

Part II of the court's opinion. 
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A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.