Arkansas Chronicle v. Murphy

183 F. App'x 300
CourtCourt of Appeals for the Fourth Circuit
DecidedMay 30, 2006
Docket04-1822
StatusUnpublished

This text of 183 F. App'x 300 (Arkansas Chronicle v. Murphy) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arkansas Chronicle v. Murphy, 183 F. App'x 300 (4th Cir. 2006).

Opinions

WILLIAMS, Circuit Judge:

This case stems from the 2004 trial of Terry Nichols for the bombing of the Alfred P. Murrah Federal Building in Oklahoma City. Prior to the start of that trial, two Virginia police officers obtained and executed a search warrant at the home of John Culbertson, seizing computers and files belonging to Culbertson and [302]*302his employer, the Arkansas Chronicle. The target of the search warrant was a video and still photographs of the bombing that were last seen in electronic format. Culbertson and the Arkansas Chronicle filed this 42 U.S.C.A. § 1983 (West 2003) suit against Robert Murphy and Steve Milefsky, the two police officers who executed the search, claiming violations of their constitutional rights. Officers Milefsky and Murphy moved for summary judgment on the grounds of qualified immunity, which motion the district court denied. Officers Milefsky and Murphy now appeal. While the underlying facts of this case are unique, the legal principles guiding our decision are well established and lead to a result opposite of that reached by the district court. For the following reasons, we reverse the district court’s denial of qualified immunity to Officers Milefsky and Murphy.

I.

In 2004, prior to the start of Nichols’s trial in Oklahoma state court, one of Nichols’s attorneys spoke with attorney Thomas W. Mills of Dallas, Texas. Based on this conversation, Nichols’s defense attorney filed an “Ex Parte Sealed Emergency Motion for Order to Preserve Evidence and for Subpoena Duces Tecum” with the Oklahoma trial court. (J.A. at 193.) In the motion, Nichols’s defense attorney alleged that Mills informed him that in August 1998 Culbertson had shown him a video and still photographs on Culbertson’s laptop computer depicting the Murrah Building right before and after the bombing and that the images showed a Ryder truck.1 The motion further alleged that Culbertson had shown Mills the video and photographs in the congressional offices of Congressman James Trafieant (D-Ohio). At that time, Culbertson was serving as a legislative aide to Trafieant. Nichols’s motion also cited Culbertson’s testimony before a House subcommittee, in which Culbertson stated that he had a video of a law enforcement officer describing the video images and photographs the officer had seen of the Oklahoma City bombing. Nichols’s defense team believed that these photographs could be crucial to Nichols’s defense. After receiving Nichols’s motion, the Oklahoma trial court held an in camera hearing and indicated that “if you came to me with this information and asked me as a judge to issue a search warrant, I probably would do it.” (J.A. at 256.) After the hearing, the Oklahoma City prosecutor began the process of obtaining a search warrant in Virginia where Culbertson resided.

To confirm the statements made by Nichols’s defense attorneys, on January 28, 2004, Oklahoma City Detective Mark Easley traveled to Dallas and spoke with attorney Mills. Mills confirmed to Detective Easley that Culbertson had shown him, on Culbertson’s laptop computer at Congressman Traficant’s office, a video of the Murrah Building “that was taken within minutes of when the bomb went off.” (J.A. at 55.) Mills said that the first frame showed the building, the next frame showed a glow at the bottom, the next frame showed the glowing ball going up the building, and the final frame showed the building collapsed. Mills also said that Culbertson told him that an Acohol, Tobacco and Firearms (ATF) agent had given him the video. Mills further said that Culbertson refused to go to the ATF or the FBI with the video tape because Culbertson needed to protect his source and the FBI did not want the video disclosed. During Detective Easley’s conversation with Mills, Mills informed Detective Eas[303]*303ley that he had spoken with Culbertson after Nichols’s “defense attorneys had learned about his ‘secret’ video and pictures.” (J.A. at 68.) In response to Mills’s comments, Culbertson told Mills that it was going to be a “tight rope for me to walk.” (J.A. at 68.)

Having received confirmation from Mills about the existence of the images, on January 30, 2004, Detective Easley traveled to Fairfax County, Virginia to speak with Culbertson. From the Fairfax County Police Department, Detective Easley placed a phone call to Culbertson. The phone call was tape recorded. Easley asked Culbertson if the images and video were still available and Culbertson responded

Well, I’m going to tell you the same thing I told Nichols’s attorneys. Because of a variety of complex legal issues, there is some journalistic law involved, there is legislative privilege involved with respect to the Congress and so forth. I’m just not at liberty to divulge whether it exists, where it’s at, whatever, until I’ve got guidance from appropriate counsel.

(J.A. at 97.) Culbertson informed Easley that he had worked for the Washington Bureau of the Arkansas Chronicle, a publishing entity since 1996, and that he maintained a home office. Easley further pressed Culbertson for information on the images, and Culbertson stated, “Well, what I can tell you is the stuff was turned over, you know, there’s public stuff on it that was turned over to the House Judiciary [Committee]. And that might be the place to look, uh, for these things.” (J.A. at 97.) Culbertson also informed Easley that he testified before the House Judiciary Contract Law Subcommittee on matters related to the Oklahoma City bombing in either 1999 or 2000. The House report confirms that Culbertson testified that “photos and video of the explosions at the Murrah Building” do exist and that Culbertson submitted images along with his report in 2000. See Fair Justice Act of 2000: Hearing on H.R. U105 Before the Subcomm. on Commercial and Admin. Law of the H. Comm, on the Judiciary, 106 Cong. 60-61 (2000) (statement of John Culbertson, Director, Center for Reform). Culbertson also denied to Detective Easley that he had seen a video showing a Ryder truck at the Murrah Building, and he then said that the video he submitted to the House subcommittee was the Sheriffs Department video “that you guys probably already have.” (J.A. at 101.) Culbertson next informed Easley that he no longer had the computer on which he showed Mills the video. Culbertson ended the conversation by telling Detective Easley that after he had spoken with his attorney, he would call Easley. Less than an hour later, Culbertson called Detective Easley and told him that he could not speak with him because of journalistic privilege stemming from his production of the show African Lifestyles, legislative privilege because he formerly worked for a congressman, and a third privilege relating to his position as a “consultant to the Philippines.” (J.A. at 104.)

Based on the information received from Mills and Culbertson’s refusal voluntarily to disclose his knowledge of the status of the video, Detective Easley sought a search warrant from a Fairfax County Circuit Court. The search warrant stated that Easley wanted to search Culbertson’s house to seize

any and all computer equipment, hard disk drives, compact disks, floppy disks, magnetic tapes or other magnetic or optical media capable of storing information in an electronic, magnetic, or optical format. This information may include, but it is not limited to letters, correspondence, memoranda, journals, electronic mail, image files, database files, deleted [304]*304files, partial files or other types of files found in the media or computer.

(J.A.

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183 F. App'x 300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arkansas-chronicle-v-murphy-ca4-2006.