___________ 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.

Un der the authority of a search warrant, investigating authoritie s seized a videotape from WDAF-TV (WDAF), Kansas City, Missouri, whic h recorded the commission of a crime. The stationowner, Citicasters, Inc., brought this lawsuit for damages and injunctive relief for an allege d violation of the Privacy Protection Act of 1980, 42 U.S.C. §§ 2000aa t o 2000aa-12 (1994), against county prosecutor Clai re C. McCaskill and Kansas Cit ypolice officials. The district court concluded that McCaskill ha d violated the Act, but dismissed the actions against the police. It awarde d $1000 in liquidated d amages 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 b arring her from showing that the circumstances relating to the seizure constitute d exceptions to the requirements of the Privacy Protection Act, that th e evidence did not support the judgment against her, and that injunctiv e relief is not available under the Act. We agree with McCaskill that she

was improperly barred from invoking the exceptions to the Act, and tha t there was insufficient evidence to support the judgment against her. We reverse and remand.

### This conversation occurred at approximately 6:10 p.m. o n 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 hi s conversation with Captain McIn erney, station manager Lewis went to speak with tourist Warren and his wife. Although the manager was aware t hat the police desired a copy of the videotape of th e assault, that the station had refused to allow the police t o 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 th e 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 a nd inform them that Warren would be home three day s later, Lewis failed to mention that Warren was still in town, and still on station property. Se e 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 Aug ust 5, 1994, at approximately 1:10 p.m., Julia Flege wa s assaulted in public and brutally murdered. Earl Warren, a tourist i n Kansas City, captured the assault on videotape a nd, within hours, sold the videot ape to plaintiff Citicasters, Inc., which operated WDAF, a loca l 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 , ChanceyE. Wright was detained in connection with Flege's murder. Under Missouri law, Mo. Ann. Stat. § 544.170 (Vernon 1994), Wright had to b e charged with the crime by 9:30 a.m. on Saturday, August 6, 1994, or b e released. Learning o f the videotape by its broadcast on the 6 p.m. news, Cap tain Vince McInerney, commander of the media relations office of th e Kansas City Police Department, immediately contacted WDAF to request a cop y of the videotape. WDAF refused to cooperate. Michael Lewis, the station' s assignment manager, t old 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

. Fle ge, W/F, 7/14/62, was abducted from the Libert y Memorial Mall, 101 Memorial Dr ive. She was subsequently taken to the Santa Fe Apts.[,] 2525 Main, where she was killed by her abductor. As the suspect attempted t o es cape 2525 Main, Kansas City, Missouri Police Office r ordered the suspect to halt and drop his gun. Th e sub ject turned towards the officer and pointed th e handgun at the officer. The officer fired one shot a t the su bject, missing him. The news broadcast at 180 0 hours on Channel 4, [four hours and fifty minutes after Flege's abduction,] revealed a video tape shot by a private citizen which showed t he abduction of the victim as well as the discharge by the Kansas City[,] Missouri police officer. Upon contacting official of Channel 4 [approximatelyfive hours after Flege's abduction] an d reques ting a copy of the tape, detectives were advise d that the tape could be reviewed but no copies would b e released without a Court Order.
J.A. at 231.
-4- police could view the portion of the tape that the station had aired on th e newscast, they could only obtain a copy of the e ntire tape through a court order.

The Kansas City police sought a search warrant for WDAF to obta in 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 detectiv e in the police department's homicide unit, submitted an affidavit whic h recited the circumstances of victim Flege's murd er, including the killer's subsequent flight and assault on a police officer, and the existence of th e 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 Richar d E. Standridge, Associate Circuit Judge for Jackson County, Sixteent h 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 Me morial Drive on 8/5/94 at approximately 1310 hours and th e subsequent shooting which involved a Kansas City , Missouri Police Officer, occurring at 2525 Main"--and that there was prob able cause to believe that the tape was at WDAF. J.A. at 232.

Pol ice officers, accompanied by prosecuting attorneys, served th e warrant at WDAF that evening at approximately 10 p.m., some nine hours and fifty min utes after the assault and abduction of Flege. An employee o f WDA F met them at the station and called Michael McDonald, the vic e president of news for WDAF. McDonald immediately came to the station. Th e officers showed vice president McDonald the search warrant and demanded th e tape. McDonald responded that he would give them a copy of the material that had been aired o n 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 furth er discussion and over WDAF's objections, the police finallyobtained possession of WDAF's copy of the entire tape sometim e between 1 1:45 p.m. and midnight that night. WDAF retained at least on e copy of the portion of the tape that had been shown on the newscast.

Citic asters brought this suit against defendants, alleging a vio lation of the Privacy Protection Act because the police obtained th e vid eotape 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 wer e 3 

### immune from suit under the Act and dismissed the claim agains t them. The district court dism issed 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 Priva cy Protection Act generally prohibits government officials from searching for and seizing documentary mater ials possessed by a person in connection with a purpose to disseminate information to the public. Se e 42 U.S.C. § 2000aa(b). Instead, the Act require s law enforcement agencies to rely on the cooperation of the media or subpo enas duces tecum to obtain such documentary materials. The Act contains important exceptions , however, where searches and seizures are permitt ed. The Act provides that it:

sha ll not impair or affect the ability of any governmen t 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 s uch materials has committed or is committing the criminal offense to which the materials relate . . . ( 2) there is reason to believe that the immediat e seizu re of such materials is necessary to prevent th e death of, or serious bodily injury to, a human being ; (3) there is reason to believe that the giving o f notice pursu ant to a subpena duces tecum would result in the destruction, alteration, or concealment of suc h materials ; or (4) such materials have not been produced in respons e to a court order directing compliance with a subpen a duces tecum, and--

### The only legislative history cited by the district court to 4 

### support its conclusion is a reference by the Senate Committee o n the Judiciary, during its discussion of one of the exceptions t o 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. a t 1288.
-7-

(A) all appellate remedies have bee n exhausted; or (B) there is reason to believe that the delay in an in vestigationor trial occasioned by furthe r 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 fro m recovering under the Act. Noting that Detective Parker's affidavit i n support of the search warrant did not expressly recite exceptions (2) and (3), the district cou rt 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 th e def endant may claim an exception to the Act when th e appli cation for the search warrant is devoid of reason s supp orting the exception. The court finds that to allow a defendant to claim an exception, after a search andseizure has occurred, allows a defendant to justify its conduct i n hindsight. The legislat ive history of the Act envisioned that a defendant would state the basis for exceptions when applying fo r the warrant. Moreover, if circumstances exist whic h consti tute an exception, the defendant should state thes e reasons in an affidavit for a warrant. Thus, because th e affidavit in support of the search warrant did not set fort h reasons which fall under an exception to the Act, the cour t will not allow defendants to now invoke those exceptions.

Citicasters , 883 F. Supp. at 1288. 4

### T his appears to be an issue of first impression. We not e 5 

### tha t the United States Attorney General, pursuant to the Privac y Protec tion Act's mandate, see 42 U.S.C. § 2000aa-11, ha s prom ulgated guidelines defining the procedures by which federa l agents may seek search warrant s 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 person al privacy interests, and to protect aga inst unnecessary intrusions." Factors which a governmen t office r should consider in deciding whether to seek a searc h warrant or a subpoena include "[w]hether the immediate seizure of the materials is necessary to prevent injury to persons or p roperty

. . . ." § 59.4(c)(2)(ii). Nowhere do the regulations advis e federal agents to document the se concerns in the application for a search warrant; rather, these are determinations to be made by the federal agents, their supervisors, and agency attorneys. Se e § 59.4(a)(2).
-8- We r eview the district court's interpretation of the Privac y Protection Act de nov o. See United States v. Lowe , 50 F.3d 604, 606 (8th Cir.) , cert. denied , 116 S. Ct. 260 (1995). There is no mention in th e Privacy Protection Act of any requirement that s earch warrant applications describe exceptions to the Act, and we must determine if it wa s proper for 5 the district court to rely on the legislative hi story 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 whethe r Congress has spoken on the subject before us. If t he intent of Congress is clear, that is the end of the matter; f or the court . . . must give effect to the unambiguously express ed 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); Barnhil l

v. Johnson , 503 U.S. 393, 401 (1992) ("appeals to statutory history ar e well-taken

### The dissent argues that "it is the absence of procedura l 6 

### requirements rather than any a mbiguity that is crucial in deciding this case." Slip op. at 15. We disagree. It is precisely th e 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 b y whi chstate judicial officers issue search warrants to state la w enforcement officials more likely reflects, in our view, congressional appreciation of the proper restraints of federalism, ra ther than congressional ineptitude in drafting the legislatio n that it intends.

-9- only to resolve statutory ambiguity") (quotation s omitted); Virginia Univ. Hosp., Inc. v. Casey , 499 U.S. 83, 98-99 (1991) ("The best evidence o f [statutory] purpose is the statutory text adopted by both Houses o f Congres s and submitted to the President. Where that [statutory text ] contains a phrase that is unambiguous--that has a clearly accepted meaning in b oth legislative and judicial practice--we do not permit it to b e expand ed or contracted by the statements of individual legislators o r committees during the course of the enactment pr ocess."); Arkansas AFL-CIO

v. FC C , 11 F.3d 1430, 1440 (8th Cir. 1993) (en banc) ("If the intent o f Congress is clear from the plain language of the statutory provision, that will be t he end of the judicial inquiry."). This rule of statutor y inte rpretationexists because "when, as here, the statutes ar e straightforward and clear, legislative history a nd policy arguments are at best interesting, at worst distracting and misle ading, and in neither case authoritative." Nort hern States Power Co. v. United States , 73 F.3d 764, 766 (8th Cir. 1996).

We find n o ambiguity in the Privacy Protection Act. See Brown v
. Gardne r , 115 S. Ct. 552, 555 (1994) ("Ambiguity is a creature not o f definitional possibil ities but of statutory context."). The Act presents

a straightforward statutory scheme for protecting those engaged i n information dissemination from government intrusion by prohibiting searche s and seizures of documentary materials except where government official s have a reasonable belief that a statutory exception applies. Althoug h Congress could have chosen to include elaborate procedural requirements in the Act, it instead created a private cause of action as the exclusive

6

### Ind eed, we note that Congress did choose to somewhat modif y

the search warrant application process in other circumstance s. See 42 U.S.C. § 2000aa(c) (where 4 2 U.S.C. § 2000aa(b)(4)(B) exception app lies, person possessing materials may submit an affidavi t contes ting issuance of warrant). We find that this strongl y suggests that Congress is capa ble 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 noti ng that "[a] literal reading of the statute reveals that an affidavit can onlybe submitted when a search warrant is obtained after non

compliance with a subpoena duc es tecum," Citicasters , 883 F. Supp. at 1290, the district court ne vertheless required the availability of an affidavit whenever "a go vernment entity bypasses the primary protec tion provided by a subpoena." Id. While we may not reac h this point on appeal because it was not raised by the parties, we do ob serve that the "literal reading" of a statute is often th e 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, S lip op. at 20, simply ignores this legislative determination that th e award of damages is sufficient to ensure an effective statute.
-10- remedyto 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 it s purpose, we must honor its decision, and not embellish its legislativ e scheme with additional procedural innovations. See, e.g. , Director, Offic e of Workers' Comp. Prog. v. Newport News Shipbuilding & Dry Dock Co. , 115 S. Ct . 1278, 1288 (1995) ("Every statute proposes, not only to achiev e certain ends, but also to achieve them by particular means--and there is often a considerable legislative battle over what those means ought t o 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 Ac t 8 

### significantly restricts the ability of law enforcement offic ials to search for and to seize certain documentary evidence of crimes , Congress took pains to limit the Act's chilling effect on la w enforcement. See , e.g. , 42 U.S.C. § 2000aa-6(e) (materials shall not be excluded as evidence be cause of a violation of the Act); 42 U.S.C. § 2000aa-6(b) (creating good faith defense to civil a ction). With due respect, the district court's expansive interpretation of the Act simply disregards the balance struck by Congress betwee n preserving the ability of government officials to prosecute crime and pr otecting those engaged in the dissemination of informatio n from government intrusion.
-11- the ultimate purposes Congress has selected, but by the means it has deeme d app ropriate, and prescribed, for the pursuit of those purposes."). Ha d Cong ress desired to create additional procedural requirements to guar d against post hoc justifications for searches, it presumably would have don e so; it is not for the federal courts to redraft legislation merely because we would have selected different procedures. 8 Be cause there is no ambiguity in the statute, the district cour t erred in relying on the legislative history of t he Privacy Protection Act. Because the Privacy Protection Act does not require an application for a searchwarrant 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 exception s claimed in fact existed, and we remand for a hearing on this issue.

III.

The district court found that "Claire McCaskill, the Prosecutin g Attorn eyof Jackson County, Missouri, assisted in executing the searc h warrant on plaintiff at its business premises." Citicasters , 883 F. Supp. at 1285. This Court reviews a district court's factual findings for clear

er ror. See Stevens v. McHan , 3 F.3d 1204, 1206 (8th Cir. 1993). " A factual finding is

### -12-

clearlyerroneous if it is not supported by substantial evidence in th e record, if it is based on an erroneous view of the law, or if the reviewin g court is left with the definite and firm convict ion that an error has been made." Burns v. McGr egor 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 behal f participated in the execution of the search warrant.

McCaskill 's position is well taken. At the initial hearing, a n assistant county prosecutor testified that "the prosecutor's office is not directly involved with the searching, or the serving [of] a searc h warrant." J.A. at 91 . Indeed, under Missouri law, a search warrant "may be executed only by apeace officer." Mo. Ann. Stat. § 542.276.7 (Vernon 1994).

We are aware of only two instances in the record which would in dicate 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 thi s action, admitted that "defendants came to plaintiff's business premises an d served plaintiff with a search warrant." J.A. at 129, 140. Second, at th e preliminary hearing, McCaskill examined an assistant prosecuting attorney from her office. One question she asked the att orney began, "At the point in time that w e took the tape . . . ?" J.A. at 79. A question from a n attorne yis hardly strong evidence of a proposition, however, and th e testimonyat trial indicated that McCaskill herself was not present when the warrant was initially served. See J.A. at 54.

Neverthel ess, if McCaskill's statements are not sufficient evidence of her participation in the search and seizure, they were at leas t misleading to the pla intiffs. The hearing held in the district court was not a fu ll hearing, and Citicasters should have the opportunity t o establish that McCaskill directed, supervised,

### -13-

or otherwise engaged in the execution of the warrant to such an extent tha t 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. 61 7 (1971)).

IV.

The distr ict court required that the actual tape seized be returned to the plaintiff:

Wit hregards to plaintiff's request for return of it s videotape, the court notes that at the hearing held on August 12, 1994, defendants agreed to return to plaintiff th e vi deotape seized on August 5. The court was under th e imp ression 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 fo r inj unctive relief for return of the videotape is not moote d because defendants have provided plaintiff with a copy of the videotape in question. Plaintiff maintains that defendant s sti ll retain the original videotape. It was this court' s understanding that the original videotape was returned to the plai ntiff. Thus, the defendants shall return the origina l 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 r elief, and the parties have briefed the issue in that context. We conclude , however, that the dis trict court was not actually granting an injunction, but was rather reaffirming the prior agreement of the parties. It i s unclear from the record whether the parties disp uted Citicaster's right to reg ain the actual tape seized. If there is any continuing disput e concerning the return

### -14-

of the seized tape, we leave its resolution to the district court o n remand.

V.

We revers e 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 fi nds 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.

Un der most circumstances, the Privacy Protection Act prohibits th e govern ment, in connection with the investigation of a criminal offense , from searching and se izing documentary materials from news or information organizations. See 4 2 U.S.C. § 2000aa(b). Under the Act, the government may not obtain a search warrant but must instead rely upon a subpoena duce s tecum or the voluntary release of the materials. The Act, however, exempt s certain situations where immediate seizure is justified, such as where a risk exists that the materials may be destroyed or another person may be physical lyharmed. The case before us raises the question whethe r government officials may claim such exceptions to the Privacy Protection Act when the application for the search warrant is devoid of any statement s suppor ting those exceptions. Because I conclude that the Privac y Protection Act constrains government action by r equiring 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 w ith 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 lawfu l warrant can issue. One of the exceptions pertains to instance s where the party in possession has failed to comply with a subpoena duces tecum and further delay would "threaten the interests o f justi ce." 42 U.S.C. § 2000aa(b)(4). In such an event, sectio n 200 0aa(c) requires that the person in possession be afforded th e opportunity to submit an affidavit stating why the materials sought are not subject to seizure before the warrant issues. Thi s 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 Prot ectionAct specifically lists the four exceptions to the Act an d requires "reason to believe" that one of the invoked exceptions applies. Contrary to the position of the majority, howeve r, the statute contains no direct statement as to whether it is the issuingmagistrate judge who must determine the existence of an exception or whether its existence can b e asserted after-the-fact by the investigating authorities. The Ac t 1 establishes a substantive standard but is silent as to the appropriat e procedural requirements.

Althoughthe majority opinion explains that the language of th e statute is not ambiguous, it is the absence of procedural requirement s rather than any ambiguity that is crucial in deciding this case. The area s the statute addresses are clear and we need not and should not embellish upo n them. The statute, however, does not address the process fo r obtaining a warrant. It is this absence of a statutory directive whic h faces us here.

Where the statute does not speak on an issue, this court has turned to ot her sources to determine the intent of Congress. The legislativ e history may provide guidance. See Wisconsin Pub lic 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 i n posses sion of a third party. A subpoena duces tecum , obviously, is much less intrus ive than a search warrant: the po lice 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 challe nge the search warrant prior to the in trusion, whereas one can always move to quash the subpoena before p roducing the sought-after materials. Stanford Daily v. Zurcher , 353 F. Supp. 124, 130 (N.D. Cal. 1972).
-16- (cond ucting a Chevron analysis). The circumstances surrounding th e enactment of the stat ute 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 con sider the statute in light of judici al 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. 19 88). 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 decisionin Zurcher v. Stanford Daily , 436 U.S. 547 (1978). See S. Rep. No. 874, 96th Cong., 2d Sess., reprinted in1980 U.S.C.C.A.N. 3950, 3950- 51. In Zurcher , the Stanford Daily, a student newspaper, had publishe d articl es and photographs of a demonstration at which several polic e off icers were assaulted. 456 U.S. at 550-51. As part of it s investigation, the district attorney obtained a search warrant and searche d the newspaper's offices for additional photographs of the incident. Id

. The newspaper brought a declaratory judgment action claiming, among other things, th at the search warrant was issued in violation of the Fourt h Amendment. The district court held, "unless the Magistrate has before him a sworn affidavit est ablishing proper cause to believe that the materials in question will be destroyed, or that a subpoen a duces tecum is otherwise `impractical', a search of a third party for materials in his possession is unreasonable per s e, 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 t he opinion of the district court. 550 F.2d 464 (9th Cir. 1977). The Supre me Court reversed, holding that the Fourth Amendment does not provide any special protection against search and seizure fo r 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 c ourse, the Fourth Amendment does not prevent or advise agains t legislative or executive efforts to establish nonconstitutional protection s against possible abuses of the search warrant procedure, . . ." Id . a t 567. Congress took t he "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 th e Zurcher decision. Id . at 3950. In Zurcher , the Supreme Court addressed whethe r the application for a search warrant must establish "specia l 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 whomthe determination would be made. Both Justice White's majorit y opinion and the dissenting opinion of Justice Stevens indicated that it wa s the is suing magistrate judge who would determine whether the necessar y req uirements were fulfilled. See 436 U.S. at 550, 577. Thus th e legislative reaction to Zurcher focused on the s ubstantive standard rather than the undisputed procedural framework. The

### -18-

logical conclusion is that Congress envisioned t he procedural framework to remain intact.

The legislative history of the Act indicates that Congress assume d that the exceptions to the Act would be considered by a magistrate judge prior to the issuance of a search warrant. In discussing the thir d exception to the Act, the Senate Report provides:

Among the factors which the Committee believes might b e considered by a magistrate in determining whether material s might be destroyed are e vidence of a close personal, family or business relationship between the person in possession of the materia l with a person who is a suspect; evidence of prior , simil ar conduct by a party who may exert control of th e mat erial; or evidence that a party in possession of th e material has expressed a n 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 Sta nford Dailycase held that the Constitution doe s not require a magistrate to conclude that warrant searches of the press are necessarily "unreasonable". The committee i n adopting [the Act] is, in effect, instructing magistrates and oth ers empowered to issue warrants that a search directed a t the documentary materials of journalists is to be c onsidered in itself "unreasonable" in the absence of certain enumerate d circumstances.

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

The legis lative history of the Act also indicates that although the Privac yProtection Act is a statutory rather than a constitutiona l 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. Sectio n 2000aa-6(e) provides that the statute does not extend th e application of the exclusionary rule: "Evidence otherwis e admissible in a proceeding sha ll not be excluded on the basis of a viol ation of this chapter." Nothing on the face of the Ac t spe cificallyinvokes the exclusionary rule. Unless the Act wer e in tended as a statutory extension of the Fourth Amendment , disclaiming the exclusionary rule would be an anomaly. Th e presence of this provision thu s indicates that the statute extends the framework of the Fourth Amendment, but is not intended t o extend the exclusionary rule.

Justice Jackson underscored the importance of a neutra l 4 

### magistrate judge in effectuating the goals of the Fourth Ame ndment:

The po int of the Fourth Amendment, which often i s not grasped by zealous officers, is not that it denie s -19- inten ded 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 comprise d entirely of the histo rical development of the Fourth Amendment. See 1980 U.S.C.C.A.N. at 3952-54. Finally, in defining t he purpose of the Act, the Senate Report stated, "The Committee bill , as amended, affords the press and cert ain other persons not suspected of committing a crime wit h protec tions not provided currently by the Fourth Amendment." 198 0 U.S.C.C.A.N. at 3950. The legislative intent wa s to build upon the Fourth Amendment.

In UnitedStates v. United States District Court , 407 U.S. 297, 316 (1972), the Supreme C ourt relayed "the very heart of the Fourth Amendment directive:

where practical, a governmental search and seizure shoul d represent both the efforts of the officer to gather evidence of wro ngful acts and the judgment of the magistrate that th e collect ed evidence is sufficient to justify invasion of a citize n's private premises or conversation. Inherent in th e 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 whic h rea sonable men draw from evidence. Its protectio n consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judge d by the officer engaged in the often competitive enter

prise of ferreting out crime.
Johnson v. United States , 333 U.S. 10, 13-14 (1948).
-20- province of the magistrate judge to independently find the existence of th e requisite conditions before a lawful warrant can issue. When viewed i n conj unctionwith this constitutional allocation of responsibility, th e Privac yProtection Act logically places the determination of whether a n exception exists in the discretion of the magistrate judge issuing th e search warrant.

By constr uing the Act so as not to require a prior judicia l dete rmination, the majority pulls the teeth out of the statute. Th e purpose of the Privacy Protection Act is to prev ent 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 bu t not communicated to the magistrate judge contains too great a potential fo r abus e; there could often be no assurance that the critical facts an d detai ls 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 de cision, 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 preventingsearches and seizures. For these rea sons, I must dissent as to Part II of the court's opinion.

### -21- A true copy.

Attest:

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