Judge preserves search warrant that led to prosecution of baby parts investigators
SAN FRANCISCO, September 16, 2019 (LifeSiteNews) — A California judge has refused to quash the search warrant that led to the criminal prosecution of pro-life investigative journalists David Daleiden and Sandra Merritt.
Judge Christopher C. Hite made the decision in a 15-page ruling Monday afternoon.
Hite rejected the defense argument that Daleiden is a “citizen journalist” and therefore protected by California’s Shield Law.
“[E]ven assuming Daleiden was a journalist at the time of the recordings his actions would not be protected by the California Shield Law or the Federal Privacy Protection Act under the circumstances alleged in the search warrant,” he wrote.
Moreover, the anti-eavesdropping law under which Daleiden is charged “does not contain an express exception for media, journalists or other First Amendment protected news-gathering agencies or activities,” Hite wrote.
There was “sufficient probable cause in the warrant that Daleiden was engaged in criminal activity irrespective of his journalistic status and that the items seized were related to the criminal activity,” he ruled.
If the search warrant had been quashed, it would have led to the first eight counts being thrown out.
Daleiden and Merritt of the Center for Medical Progress are charged with 14 felony counts of illegal taping in connection with the CMP undercover videos released in 2015 that exposed Planned Parenthood trafficking in aborted baby body parts.
Hite agreed Friday to drop count 8 of the initial 15 because Doe 8 — the judge ordered that the names of those alleging illegal taping be sealed during the prosecution — voluntarily decided not to proceed.
Defense lawyers filed a motion in August to quash and traverse the search warrant then–attorney general Kamala Harris signed on April 5, 2016 authorizing Department of Justice agents to raid Daleiden’s Orange County apartment. They filed another motion to quash and traverse the search warrant on September 3, when the criminal preliminary hearing began.
The agents seized unpublished material sourced from the CMP’s 30-month undercover operation, none of which has been returned to Daleiden.
The defense lawyers argued Friday that the attorney general’s office violated black-letter California law protecting a citizen-journalist’s unpublished materials and that the prosecution of Daleiden and Merritt is politically motivated.
Daleiden “is caught in a web of political intrigue,” his lawyer Brentford Ferreira told the court. “There is no basis for a criminal prosecution, and this should end right now.”
Daleiden and Merritt are claiming a Section 633.5 defense, which exculpates the covert taping of confidential communications when investigating violent crimes.
The defense is also arguing that Section 632 does not consider as confidential a conversation that can reasonably be expected to be overheard.
It’s unconstitutional to seize the “unreported documents in possession of a journalist,” Ferreira said.
“There is copious evidence Mr. Daleiden reasonably believed he was investigating violent felonies,” including partial-birth abortion and infanticide, he added.
Defense lawyers also requested a Franks hearing Friday based on the testimony of investigating DOJ officer Agent Brian Cardwell at the hearing, as well as evidence that the agents serving the warrant did not believe they had probable cause.
A Franks hearing “determines whether a police officer’s affidavit used to obtain a search warrant that yields incriminating evidence was based on false statements by the police officer,” according to USLegal.com.
“Agent Cardwell’s heart was not in it,” Ferreira told the court. “He did what he was told.”
Cardwell testified on cross-examination by Merritt’s lawyer, Horatio Mihet of Liberty Counsel, that he never went to the Hilton St. Francis, where Daleiden and Merritt secretly taped eight of the alleged victims at a National Abortion Federation convention in 2014.
He said he never asked Does 6, 7, 11, 13, and 14 if they could be overheard and did not check the Does’ claims of “confidentiality” against the law’s definition. His affidavit presenting evidence to the judge for the attorney general’s arrest warrant for Daleiden and Merritt omitted Doe 5’s statement that she could be overheard and that Doe 4 was recorded in an elevator and the hotel lobby, as CMP points out in a detailed summary of Cardwell’s testimony.
Cardwell testified that he talked to Planned Parenthood chief counsel Beth Parker and that when DOJ agents interviewed her, she said: “Planned Parenthood would like the computers used to produce the videos.”
Ferreira told the court the defense had documents proving that DOJ agents did not serve the warrant “in good faith.”
“They knew that this was politics and not a criminal investigation. They knew that,” he said.
One agent was “so distraught by this abuse of power he went on leave of absence,” and another told him, “If you subpoena me, I will come and tell the truth,” Ferreira said.
“There’s a bad, bad smell, and where there’s an odor that strong, it will lead to a corpse.”
But Hite ruled that the defense did not provide sufficient evidence to justify a Franks hearing.