.Attorneys: Sausalito Police Search Warrant Violates Journalist’s Rights

Marin County judge allowed police to search Jeremy Portje's phone, camera despite First Amendment advocates' concerns

Attorneys are outraged that the Sausalito Police Department obtained a search warrant and examined a journalist’s unpublished work, even after being advised these actions violate state and federal laws.

On Nov. 30, three Sausalito police officers arrested independent photojournalist Jeremy Portje, 43, and seized his equipment while he filmed at a homeless encampment in Marinship Park, which is located on public property. Portje, whose work has been published by the Marin Independent Journal, the Associated Press, and other outlets, is currently working on a documentary about homelessness in Marin County.

The three charges against Portje include obstructing an executive officer, battery on a police officer with injury and battery on a police officer, according to the Marin County jail booking log on Nov. 30. Marin County District Attorney Lori Frugoli has not yet decided whether to file charges.

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The events that led to Portje’s criminal arrest are still unclear. A bystander filmed officers arresting the journalist and witnesses say that he was recording police activity at the encampment prior to being handcuffed. Regardless of whether the arrest was justified or not, the journalist’s unpublished materials are protected from a government search warrant, according to the First Amendment Coalition, a press advocacy group.

On Dec. 7, after the Pacific Sun first reported on Portje’s arrest, the First Amendment Coalition sent a letter to Sausalito Mayor Jill Hoffman, Sausalito Police Chief John Rohrbacher and Marin County District Attorney Lori Frugoli, informing them California law prohibits police from using search warrants to review journalists’ unpublished materials. The six-page letter also asserted police violated the California Shield Law protecting journalists, the First Amendment and the federal Privacy Protection Act by seizing Portje’s equipment during the arrest.

Despite the police, mayor and district attorney being informed of the applicable laws, Sausalito police detective Davin Rose sought a search warrant allowing police to review materials stored on two camera memory cards and an iPhone taken from Portje during his arrest. On Dec. 9, Marin County Superior Court Judge Mark Talamantes approved the search warrant

“It is unbelievable to me that the police could seek a warrant and be able to get one in a circumstance like this when it’s clearly barred under California law,” David Snyder, executive director of the First Amendment Coalition, said. “Even more troubling is they sought the warrant knowing that Mr. Portje is a journalist and having received our letter that makes crystal clear search warrants are not allowed in this situation.”

In an emailed response to questions on Friday, Dec. 17, Hoffman acknowledged she and Rohrbacher received the First Amendment Coalition’s letter but declined to discuss the ongoing investigation.

“I support the First Amendment of the Constitution and the rights afforded to journalists, and that an investigation should proceed under the rule [of] law to determine if there was wrongdoing,” Hoffman wrote.

In a separate response, Rohrbacher, the police chief, supported Davin’s decision to seek the search warrant, which states Portje is also being investigated for conspiracy to commit a crime.

“I will say that our detective’s affidavit for a search warrant was reviewed by the District Attorney’s Office and signed by a Marin County Judge,” Rohrbacher wrote in an email to the Pacific Sun on Dec. 17.  

Snyder is baffled as to why the police needed a search warrant at all, since the three police officers arresting Portje were wearing body cameras and several witnesses saw the arrest and the circumstances preceding it.

Portje’s defense attorney, Charles Dresow, intends to file a motion to quash the search warrant and bring issues to Talamantes’ attention, which he believes the judge was not aware of when he signed the warrant. In addition, the attorney is incensed about the Sausalito police alleging Portje is a part of a conspiracy.

“It is beyond the pale of logic that they alleged there was a criminal conspiracy,” Dresow said. “It’s absolutely offensive to everything our Constitution stands for that law enforcement would use a process of the court to allege a conspiracy when a journalist is filming police activity in public. What is he [Portje] conspiring to do—show what Sausalito police are doing? 

Once again, Snyder has penned a letter on behalf of the First Amendment Coalition, this time adding Talamantes to the recipient list. The Dec. 17 letter begins by saying the First Amendment Coalition is “shocked and dismayed” that a search warrant was issued and executed to review Portje’s unpublished work. Snyder calls for the police to immediately return the seized materials and for the judge to “take control of Mr. Portje’s seized materials and maintain their confidentiality.”

Dresow is concerned about the chilling effect Portje’s arrest and the subsequent search warrant may have on other journalists in the community. Journalists are a critical check to the government’s activity, according to Dresow.

“It was an absolute abuse of power to arrest Jeremy and take him to jail for doing his job as a journalist,” Dresow said. “That is compounded by the further abuse of getting a search warrant for materials protected by the [California] shield law. This really just indicates the atmosphere of arrogance that exists in the Sausalito Police Department.”

Read the Pacific Sun’s previous coverage of Portje’s arrest here. Copies of the search warrant and the First Amendment Coalition’s letters are available here and here.

Nikki Silverstein
Nikki Silverstein is an award-winning journalist who has written for the Pacific Sun since 2005. She escaped Florida after college and now lives in Sausalito with her Chiweenie and an assortment of foster dogs. Send news tips to [email protected].
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