Sennett v. United States

40 Media L. Rep. 1337

667 F.3d 531

Laura SENNETT, Plaintiff–Appellant,

v.UNITED STATES of America, Defendant–Appellee,andVincent Antignano, in his individual capacity; Arlington County; Jason K. Bryk, in his individual capacity; Prince William County, Defendants.

No. 11–1421.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 7, 2011.Decided: Jan. 30, 2012.

ARGUED: Jeffrey Louis Light, Law Office of Jeffrey Light, Washington, D.C., for Appellant. Julie Ann Edelstein, Office of the United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Neil H. MacBride, United States Attorney, Lauren A. Wetzler, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee.

Before TRAXLER, Chief Judge, and MOTZ and KEENAN, Circuit Judges.

Affirmed by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge MOTZ and Judge KEENAN joined.

OPINION

TRAXLER, Chief Judge:

Laura Sennett appeals the district court's order granting summary judgment to the United States on her claim seeking money damages for alleged violations of the Privacy Protection Act (“PPA”). See 42 U.S.C. § 2000aa. For the reasons that follow, we affirm.

The facts are essentially undisputed. Sennett is a photojournalist who claims a special interest in covering protests, political demonstrations, and “grassroots activism.” J.A. 12. Since 2005, Sennett has published her photographs under the pseudonym “Isis” in various publications such as the Toronto Free Press. Sennett has also posted her photography and commentary on her website, her personal blog and the Internet in general.

On April 11, 2008, Sennett received a phone tip that there would be a demonstration during the International Monetary Fund's (“IMF”) annual spring meeting at the Four Seasons Hotel in Washington, D.C., where some of the 200 delegates that attended the meeting were housed. Following the tip, Sennett arrived at the Four Seasons at approximately 2:30 a.m. on April 12, 2008, in order to photograph the protest. According to Sennett, she was unaware that the purported protesters planned to destroy property or commit other criminal acts; she merely intended to photograph the event and publish the resulting photographs.

The incident was captured on tape by hotel surveillance cameras, which showed a group of about sixteen individuals gathered at the main entrance of the hotel. Many in the group were wearing masks, black hooded jackets, and sunglasses, although some made no effort to disguise their identities. A number of the individuals wore backpacks. Several of the individuals entered the hotel lobby and threw firecrackers and smoke-generating pyrotechnic devices, along with paint-filled balloons, at various targets in the lobby. At some point, one of the individuals in the lobby shattered a large glass window by the entrance. After the vandals left the building, all of the individuals, including those who had remained outside of the hotel lobby, fled on foot or by bicycle. The hotel estimated that the “protesters” caused more than $200,000 in property damage.

Officer Vincent Antignano, who was a detective with the Prince William County Police Department and a deputized federal marshal for the FBI Joint Terrorism Task Force, investigated the incident. In reviewing the hotel's security camera footage, Officer Antignano noticed a white female using a small handheld camera to videotape or photograph the protest. The unidentified photographer wore dark clothing, a light colored beret, black combat boots, and she carried a gray and black backpack. She could be seen arriving at the Four Seasons hotel at the same time as the other individuals in the group. Like several others present, the photographer did not enter the lobby and remained outside during the incident in the lobby. And, after the people who damaged the lobby exited the hotel, the unidentified female fled from the hotel with or in the same general direction as the protesters.

Eventually, Officer Antignano identified the female photographer as Sennett. In his affidavit in support of a search warrant for her residence, Officer Antignano explained that he discovered Sennett's identity based on tips provided by two “reliable sources”:

A reliable source (RS # 1) who is not in the position to testify, but has provided reliable information in the past, advised that the unidentified white female has been seen at several protests throughout the Washington DC area. Furthermore, she is frequently seen wearing the light colored beret and black combat boots at demonstrations in the Washington DC area.

With the help of open source websites ( [e.g.] Google, Youtube), a white female matching the same physical description[ ] was observed on videotape demonstrating in front of FBI Headquarters ... on December 8, 2007. She was also observed demonstrating in front of the Church of Scientology ... on February 10, 2008. During both events, she was observed wearing the same light colored beret and black combat boots captured on hotel security cameras.

A second reliable source (RS # 2), who is not in the position to testify, but has provided reliable information in the past, advised that the unidentified white female goes by the name of “ISIS”. The source was able to provide a cellular telephone number....

... [O]pen source information regarding the cellular telephone number ... revealed a Laura Sennett ... living [in] ... Arlington, Virginia. A photograph obtained from Virginia [DMV] of Sennett matched the ... female captured on the ... Hotel security cameras.

J.A. 26–27. Officer Antignano obtained Sennett's address using the foregoing information, and various officers conducted follow-up surveillance of her residence and confirmed that Sennett lived there.

Based on this information, Officer Antignano sought a search warrant, believing it likely that Sennett's residence contained evidence of suspected criminal activity that occurred during the IMF protest at the Four Seasons, including burning or destroying a dwelling, see Va.Code 18.2–77; manufacturing, possessing, or using fire bombs or explosives, see Va.Code 18.2–85; and injuring property, see Va.Code 18.2–137. The magistrate issued the requested warrant. The warrant authorized seizure of items connected with the IMF protest, such as clothing worn by Sennett during the event, along with essentially anything that might store pictures or video:

Any and all computers and peripheral devices, such as but not limited to: desktop, laptop, mobile and handheld computers, printers, scanners, external drives and tapes, CDs, DVDs, thumb drives, flash cards, and any other digital media capable of storing digital or electronic data. Any and all computer hardware and software that is used with the operation of these computers, to view or create data.... Any and all cell phones, personal digital assistants, and other devices in which records and data may be stored. Any and all beret [s], black combat/military style boots, gray/black backpack, including any identifiable clothing related to the offense. Gunpowder, smoke devices, firecrackers, flash powder, hobby cord, and any or all items related to smoke generating pyrotechnic devices, paint, balloons, or similar items that may have been used in the commission of the instant offense.

J.A. 29.

On September 23, 2008, Officer Antignano and numerous other law enforcement officers executed the search warrant. The agents seized dozens of items, including an external hard drive allegedly containing more than 7,000 photographs, two computers, several cameras, and several camera memory cards. According to Sennett's complaint, three officers, including Officer Antignano, told Sennett during the raid that they knew she was a photojournalist. Sennett purportedly admitted during the search that she was present and took photos at the hotel during the protest, and that the photos were located on her computer. Sennett was never arrested or charged with any crimes relating to this incident.

Believing the search of her apartment to be unlawful, Sennett brought this action against the United States under the Privacy Protection Act (“PPA”). See 42 U.S.C. § 2000aa et seq.^* The district court granted summary judgment in favor of the United States. The court concluded that the “suspect exception” to the PPA, see 42 U.S.C. § 2000aa(a)(1), barred Sennett's claim because there was probable cause to believe that Sennett was involved in criminal activity at the Four Seasons hotel on April 12, 2008, and the search of her home related to the investigation of that incident. See Sennett v. United States, 778 F.Supp.2d 655, 666 (E.D.Va.2011).

On appeal, Sennett argues, as she did below, that summary judgment was inappropriate because the facts, if viewed in a light most favorable to her, did not permit a finding of probable cause. We disagree.

Congress passed the PPA in response to Zurcher v. Stanford Daily, 436 U.S. 547, 567–68, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978), in which the Supreme Court held that the Fourth Amendment does not prohibit the search of a newspaper office for photographs revealing the identities of those who assaulted police officers during a demonstration, even though no one employed by the newspaper was suspected of involvement. See Guest v. Leis, 255 F.3d 325, 340 (6th Cir.2001) (“[T]he PPA was enacted to afford the press and certain other persons not suspected of committing a crime with protections not provided currently by the Fourth Amendment.” (internal quotation marks omitted)). Accordingly, the PPA prohibits government searches for documents and materials that are intended for publication. See 42 U.S.C. § 2000aa(a) & (b) (prohibiting the search for and seizure of materials possessed with “a purpose to disseminate to the public”); Citicasters v. McCaskill, 89 F.3d 1350, 1353 (8th Cir.1996) (explaining that the PPA “generally prohibits government officials from searching for...