San Francisco police have agreed to return the newsgathering gear seized from the home and office of a freelance journalist during an investigation into a leaked police report.

Attorney Tom Burke said Tuesday during the first public court hearing on the legally questionable search warrants that police planned to return all of the items to his client, freelancer Bryan Carmody, as of Monday evening.

The police raids drew scrutiny from across the nation from those who believe the search warrants may have been issued and executed in violation of state and federal law designed to protect journalists and their sources.

At stake is whether any information police obtained through the search warrants could be used to further its criminal or administrative investigations into Carmody or his source.

It has yet to be seen whether police already viewed or copied information contained in the dozens of seized items including reporters’ notebooks and computers before agreeing to return them to Carmody.

Police executed the search warrants against Carmody on May 10 after unsuccessfully asking him to reveal the source who gave him a police report on the February death of the late Public Defender Jeff Adachi.

Burke told reporters outside the courtroom that police should have obtained a subpoena for the information, not search warrants.

“It’s like a sniper shot as opposed to a search warrant which is a net,” Burke said. “It grabs everything you’ve ever worked on. That’s never appropriate. It’s not appropriate in San Francisco, it’s not appropriate anywhere in the country.”

San Francisco Superior Court Judge Samuel Feng was expected to hear arguments at the hearing Tuesday over whether the warrants violated the law, but Feng delayed the proceedings until next month at the earliest.

Last week, Burke filed motions asking a judge to invalidate the warrants on the basis that they violated state and federal law designed to protect journalists and their sources. He also sought to have police return the dozens of items they seized from Carmody without viewing or copying the information contained in them.

Meanwhile, attorneys with the First Amendment Coalition filed a motion to unseal the affidavits police filed with two judges alongside their requests for the search warrants. By making the documents public, the attorneys hope to answer whether police told the judges about Carmody being a journalist.

Feng delayed hearing for the San Francisco Police Department to have a chance to respond. The SFPD, which is being represented by its Legal Division as well as the City Attorney’s Office, will have until the end of May to challenge the arguments.

Police Chief Bill Scott has defended the search warrants by saying police went through the “appropriate legal process” to obtain them.

To obtain the warrants, the police showed probable cause to judges Victor Hwang and Gail Dekreon that stolen or embezzled property would be found on Carmody, his home and his office, and that a felony had been committed.

The SFPD has said that it executed the search warrants while investigating “potential case of obstruction of justice along with the illegal distribution of confidential police material.” But the department has not made clear what crime if any Carmody or his source are specifically accused of committing.

Because Burke believes the warrants were issued in violation of laws including the California shield law, he argues that the information police obtained through the seizures should not be used for “any purposes.” That would include administrative proceedings if police proceeded with discipline against the Carmody’s confidential source.

“The court could basically say that the search warrants were not appropriate to have been issued and that they need to return everything that they have and they can’t use anything that was received,” Burke said

Ronnie Wagner, an attorney for the Police Department, said in court that the items were available for Carmody to pick up Tuesday morning. Wagner left the courtroom without commenting to reporters.

As for the motion to unseal, First Amendment Coalition Executive Director David Snyder said viewing the search warrant applications will show whether the California shield law should have applied. The law, along with others, protects journalists from having search warrants issued against them.

“The public has the right to see the materials the Police Department submitted in support of the search warrant,” Snyder said. “Those materials will help explain whether the judges who issued the search warrant understood that the search was to take place at the home and office of a journalist.”

Feng scheduled the next hearing in the case for June 10. Attorneys will then agree on a later date to argue their positions.

mbarba@sfexaminer.com

Crime

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