From: San Francisco Chronicle
By: Evan Serfnoffsky, 05/28/2019
San Francisco police executed seven search warrants as they tried to find out who leaked a police report to a freelance journalist, including searches of officers and one of the journalist’s phone records, police officials and an attorney in the case said.
The search of phone records preceded the now-notorious May 10 raids on journalist Bryan Carmody’s home and office. Controversy over the case has centered on whether police violated California’s shield law that protects journalists from being compelled to identify confidential sources.
Last week, Police Chief Bill Scott changed course and apologized for the department’s handling of the searches, admitting the raids were wrong while calling for an independent probe of the case.
Revelations that police served additional warrants show that the investigation into the leaked report on the February death of Public Defender Jeff Adachi — an influential police critic — was broader than previously known as national outrage around the case swelled.
The new information raises questions about whether Carmody’s phone records provided evidence that police used to justify the later warrants, and about whether police had identified suspects in the leak case.
In an interview with The Chronicle on Friday, Scott acknowledged the existence of the previously undisclosed warrants. He conceded that at least one search was likely illegal.
“We served warrants on officers and a number of warrants on Mr. Carmody, including a warrant on a very specific time for his phones, and one of the issues that I saw in this is in the initial warrants,” Scott said. “As this investigation transpired, there’s one that’s particularly troubling or concerning.”
Asked Tuesday to comment on the warrants, a police spokesman directed The Chronicle to a statement the department released Saturday saying that Scott has “made it abundantly clear that transparency and accountability are paramount in this criminal investigation. That is why SFPD is seeking an independent, impartial third party to take over the original criminal case.”
Little is known about the search warrants, which were filed under seal. It’s unclear when the warrant for Carmody’s phone records was obtained, which phone provider it targeted and which San Francisco Superior Court judge signed it.
The warrants for Carmody’s home and office were signed by judges Victor Hwang and Gail Dekreon, but the police affidavits justifying the searches have not been publicly released.
While Carmody was aware of the searches of his home and office, his attorneys said Tuesday they had no idea police had searched his phone records. Under California law, police can limit such disclosure in some cases.
“It would be deeply troubling to learn that the SFPD not only obtained an illegal search warrant for Mr. Carmody’s home and office, but that they also illegally obtained a search warrant for his phone records,” said the attorney, Ben Berkowitz. “If that is true, not only is it illegal, but it clearly violated the First Amendment and the California shield law and they need to be held accountable for it.”
Carmody’s civil attorney, Thomas Burke, has filed a motion to quash the warrants on his client’s home and office. He said he was unaware about any other warrants.
“That is news to me, and if that occurred, that would be very, very troubling,” said Burke, who has represented The Chronicle and its parent company, Hearst Corp., in other cases.
The First Amendment Coalition, a nonprofit group that fights for free speech and government accountability, and other free-press groups have sued to have the search warrants unsealed. These groups, too, said they were unaware of additional warrants.
Before calling for an outside investigation, Scott defended the police raid for a week and a half, saying the department suspected Carmody took part in a criminal conspiracy, and investigators “went through the appropriate legal process.”
Under Scott’s plan, which came at the request of Mayor London Breed, both the criminal and administrative investigations into the leaked report will be handled outside his department. The city’s Department of Police Accountability, meanwhile, will examine how the case has been handled on all levels.
Tony Montoya, the president of the union representing rank-and-file officers in San Francisco, called for Scott’s resignation after the chief apologized, saying the chief was personally involved with every part of the investigation before changing his position.
“Chief Scott not only followed every twist and turn of the investigation, but he knew every element of the investigation, directed the investigation and has clearly either come down with the most debilitating case of amnesia or is flat out not telling the truth about his direct involvement and the horribly flawed direction he gave to find the leak of the police report,” he wrote.
Montoya’s scathing statement comes as tensions between the chief and union have long simmered since Scott was brought in from the Los Angeles Police Department to lead San Francisco’s reform efforts following several controversial officer-involved shootings.
The union’s move prompted the president and vice president of the city Police Commission and the local president of the NAACP to defend the chief. Breed has not responded to the union’s statement or called for Scott’s resignation.
Scott said he reviewed the entire case over 48 hours last week after defending the department’s actions as outrage from First Amendment groups grew and put the case in the national spotlight.
His review of the records revealed “issues in the clarity” of a warrant on Carmody’s phone records and the description of his role as journalist. “There should have been more clarity there,” he said.
According to attorney Michael Rains, who is representing a police sergeant who wrote several of the warrants, the search that targeted Carmody’s phone records was done before police showed up at the journalist’s home, handcuffing him and seizing computers, phones and other devices.
Police have since returned most of Carmody’s property and said they will not use any of the seized evidence or turn it over to outside investigators.
Rains’ client, Sgt. Joseph Obidi, wrote warrants under the direction of his superiors in the command staff, who didn’t believe Carmody was protected by the shield law, the lawyer said. Obidi has not been accused of any crimes or administrative violations.
“This was not a one-man show,” Rains said. “This was a high enough priority investigation that every step was being reviewed. He was being constantly asked for his progress and there were meetings going on all the time that were at the highest level of the department.”
The judges who signed the warrants for Carmody’s home and office have not commented. Questions remain about whether they considered Carmody’s role as a freelance journalist when signing the warrants.