The opinion of the court was delivered by: JACK B. WEINSTEIN
This case raises grave issues of the right to privacy in the home from the intruding eye and ear of a private broadcaster's television camera when: 1) entry of the television crew was, compelled by government officials without consent of the householder; 2) the officials had themselves obtained consentless entry, ostensibly by means of a search warrant; 3) the officials were not being aided in their search by the television crew; 4) the television crew was present only for proprietary reasons, -- i.e. potential profit to the television broadcaster; and 5) the television crew took from the home for the purpose of broadcasting them to the world at large, pictures of intimate secrets of the household, including sequences of a cowering mother and child resisting the videotaping.
The government and the broadcaster do not now contest the claim that serious psychic harm was suffered by the mother and child. Rather, they argue that this action against united States Treasury Agent, James Mottola, who allegedly arranged for the CBS crew's entry; CBS Inc., the broadcaster; and Meade R. Jorgensen, the CBS producer in charge of the crew, must be dismissed on the ground that they are immune from suit.
For the reasons indicated below this motion was denied: A prima facie gross violation of plaintiffs' clear constitutional rights has been pleaded against the government official. At the very least, plaintiffs are entitled to discovery in order to determine whether there was any justification for this intrusion of CBS into their home with the aid of a government official. The motion of CBS must be denied for this reason and, in addition, because a private broadcaster cannot cloak itself in immunity of a government official under the facts of this case.
On March 5, 1992, Agent Mottola obtained a search warrant based upon information provided by a confidential informant regarding Mr. Babatunde Ayeni's involvement in a credit card fraud operation. He is plaintiff Tawa Ayeni's husband and plaintiff Kayode Ayeni's father. The warrant authorized Agent Mottola and other government agents to enter the plaintiffs' apartment to search for:
quantities of fraudulently obtained credit cards, lists' of names and account numbers for such credit cards, credit card receipts, credit card applications, false identification documents, cash, correspondence, checkbooks, bank records, and U.S. Postal Service change of address form.
Neither Mrs. Ayeni nor Kayode was under investigation for any illegal activity. At approximately 6:00 p.m. on March 5, 1992, six agents (four or five secret service agents and one or two postal inspectors) arrived at the Ayenis' three bedroom residence. Mrs. Ayeni and her son were home alone. The agents announced that they were police conducting an investigation and wanted to ask questions. When Mrs. Ayeni, clothed only in a dressing gown, cracked opened the door, the agents pushed into the apartment.
Mrs. Ayeni objected to the presence of the camera. She asked why the men were videotaping herself and her son. Kayode sat behind his mother on the couch crying. Mrs. Ayeni repeatedly requested that her picture not be taken and attempted to cover her face and that of the boy.
The CBS crew followed and taped the agents as they searched the apartment and the Ayeni's belongings. They took close-up pictures of the interiors of closets, personal letters, family pictures, and even of a homey maxim on the wall. (Am. Compl. P. 35 and videotape.) Throughout the search, Jorgensen questioned an agent wearing a microphone. In the foyer of the Ayeni apartment, the CBS crew interviewed this agent to determine the modus operandi of people who commit credit card fraud and the tools of their trade. During this sequence of the tape, the agent "implied the complicity of other residents of the Ayeni apartment." (Am. Compl. P. 37.)
While CBS taped her, the agents questioned Mrs. Ayeni regarding her husband's whereabouts and objects in the apartment. The only material seized from the apartment was a family photograph of the Ayenis, also taped by CBS.
After about 20 minutes the CBS crew left the premises with several agents. It videotaped one of the agents expressing disappointment that no evidence of credit card fraud had been in found.
Plaintiffs contend that CBS and Jorgensen had an "agreement" with the Secret Service to enter the apartment. (Am. Compl. P. 30.) They assert that "defendants Jorgensen and CBS, individually and through their agents, servants and employees, were acting with the implied permission and consent of the United States Secret Service, Department of the ...