Zurcher v. The Stanford Daily, 436 U.S. 547; 98 S. Ct. 1920; 56 L. Ed. 2d

525 (1978)

Facts—On April 9, 1971, officers from the Palo Alto Police Department and the Santa Clara County Sheriff’s Department were called to the Stanford University Hospital to remove demonstrators occupying administrative offices. They refused to leave peacefully, and when nine policemen tried to force their way beyond the barricades, demonstrators attacked them with clubs. All nine police were injured. The police could only identify two rioters, but the student newspaper, the Stanford Daily, on April 11 carried photos of the riot. The Santa Clara County prosecutor got a warrant to search the offices of the Stanford Daily for negatives. The warrant contained no accusation against the newspaper, and the search revealed only the photographs that had appeared. The District Court held that since the newspaper was the innocent object of a search, the prosecutor should have sought a subpoena duces tecum rather than a search warrant. The Court of Appeals affirmed the decision.

Question—Did a warrant, based on probable cause to search a newspaper office for evidence of crimes by third parties, violate the First and Fourth Amendments?

Decision—No.

Reasons—J. White (5–3). A valid warrant may be “issued to search any property, whether or not occupied by a third party, at which there is probable cause to believe that fruits, instrumentalities, or evidence of a crime will be found.” The Fourth Amendment speaks of search warrants issued on “probable cause” and particularly describing the place to be searched and the persons or things to be seized. As a “. . . constitutional matter they need not even name the person from whom the things will be seized.” The critical element in a reasonable search is not that the owner of the property is suspected of crime, but that there is a reasonable cause that the “things” to be searched for are there. The issue is one of reasonableness and the Fourth Amendment does not forbid warrants where the press is involved. Properly administered the preconditions of a proper search warrant afford the press protection against alleged hazards—such as press confidentiality.

J. Stewart and J. Stevens authored dissents in which they argued that this search violated freedom of the press.

Note—The criticism and legislative fallout after Zurcher was quick and widespread. A number of states have restricted police searches of newsrooms and require subpoenas, the issuance of which can be challenged in courts, and Congress itself has prohibited courts from issuing warrants to search “the products of news organizations and others engaged in First Amendment activities.”