Newsroom searches in Idaho: free press case may lose its 'classic' luster on technical point

A lawsuit that had all the markings of a classic constitutional battle over freedom of the press, and which inspired Congress to limit police searches of newsrooms, may end with a whimper of procedural error.

During a riot last year at the Idaho state prison, inmates invited two reporters from KBCI-TV in Boise to visit the prison and hear their grievances. The reporters shot videotape inside the prison, some of which was broadcast.

During the early days of his investigation into the riot, Ada County Prosecuting Attorney Jim Harris asked to see KBCI's videotapes. KBCI news director Paul Riess refused his request.

Mr. Harris got a search warrant, and the KBCI newsroom was searched. Investigators took two cans of videotape, not the originals they were after -- those were, by then, in custody of the station's attorneys.Mr. Harris also got nationwide publicity, an avalanche of criticism from the press around the nation , and, within a week, a lawsuit in which KBCI charged violations of First and Fourth Amendment rights.

From the beginning, Harris has argued that Idaho law entitles him to obtain materials to aid his investigation of crimes at the prison. He has argued that reporters are no different from other citizens -- they are subject to the laws governing searches and other investigative techniques. And he says that because the KBCI reporters later participated in a negotiating committee that tried to settle the riot, they waived any First Amendment rights and immunities they might have had.

KBCI at first argued loudly in the press that the First Amendment forbade newsroom searches. However, legal precedent does not support them on that issue , and in their briefs they have contended instead that when First Amendment interests are involved in a search, as they were in this one, Supreme Court decisions require that meticulous care be given to deciding whether a search can be instituted. No such exactitude was demonstrated in this search, they contend.

But while one side argues police powers and the other argues the First, Fourth, and Fourteenth Amendments, the case might be decided on the basis of a section of Idaho law known as Idaho Code Section 19-4402. It states that search warrants in Idaho may be issued for three reasons only: to obtain stolen property, to obtain materials used to commit a felony, and to obtain materials that might be used to commit a felony.

That has been the law in Idaho since the first legislature met in 1863. It was federal law in the United States until 1968. That year, the Supreme Court ruled in the case of Warden v. Haydenm that it was legal to search for "mere evidence" of a crime, a type of search often held unconstitutional before that time.

Congress soon passed a federal statute that added the obtaining of evidence to the list of reasons for obtaining a federal search warrant. But the Idaho Legislature made no such changes in state law.

In 1979, the state supreme court, acting under new legislative authority to make rules, adopted the Idaho Criminal Rules, including Rule 41, which allows search warrants to be obtained to search for evidence as well as to search for stolen goods or items used to commit a felony. But the statutory authority under which those rules were adopted, and numerous court decisions dealing with the rulemaking power of courts, say that whenever there is a conflict between a court-adopted rule and a legislatively adopted statute, the statute, if constitutional, will prevail.