ZURCHER v. STANFORD DAILY 436 U.S. 547 (1978)

In Zurcher v. Stanford Daily the police chief of Palo Alto, California, appealed from a federal district court decision declaring that a search of a college newspaper's office conducted pursuant to a duly authorized search warrant had infringed upon fourth amendment and first amendment rights. There was no contention that the newspaper or any of its staff was reasonably suspected of the commission of a crime, nor was it contended that weapons, contraband, or fruits of a crime were likely to be found on the premises. Rather, the police secured a warrant on a showing of probable cause for the conclusion that photographic evidence of a crime was to be found somewhere on the premises. The Supreme Court thus addressed the general question of the standards that should govern the issuance of warrants to search the premises of persons not themselves suspected of criminal activity and the specific question whether any different standards should apply to press searches.

The Court ruled that the innocence of the party to be searched was of no constitutional importance. So long as there was probable cause to believe that evidence of a crime was to be found on premises particularly described, no further showing was needed. Specifically, the Court declined to "reconstrue the Fourth Amendment" to require a showing that it would be impracticable to secure a subpoena duces tecum before a warrant could be issued.

That the party to be searched was a newspaper the Court regarded as of some moment but not enough to prefer subpoenas over warrants. Instead, the Court observed that warrant requirements should be applied with "particular exactitude when First Amendment interests would be endangered by the search."

The Court expressed confidence that magistrates would safeguard the interests of the press. Magistrates could guard against the type of intrusions that might interfere with the timely publication of a newspaper or otherwise deter normal editorial and publication decisions. Nor, said the Court, "will there be any occasion or opportunity for officers to rummage at large in newspaper files." The Court asserted that "the warrant in this case authorized nothing of this sort." Yet, as the Zurcher opinion discloses, the police searched "the Daily's photographic laboratories, filing cabinets, desks, and wastepaper baskets." The Court's application of the particular exactitude standard seems neither particular nor exact.

Zurcher is the first case squarely to authorize the search and seizure of mere evidence from an innocent party; it has raised difficult questions of Fourth Amendment reasonableness as applied to searches of other innocent third parties such as lawyers and judges. By suggesting that press values be considered in an assessment of reasonableness, it opens the door for further distinctions between searches of media and nonmedia persons. By suggesting that the reasonableness of a search is a requirement that may go beyond probable cause and specificity, it reopens discussion about the relationship between the two clauses of the Fourth Amendment.

Steven Shiffrin
(1986)