Opinion
Case No. 03-20895-CR-MARTINEZ.
April 27, 2004
Dana J. McElroy, Esq., GORDON HARGROVE JAMES, P.A., Fort Lauderdale, FL, Attorney for SUNBEAM and ANDREWS.
Robert N. Pelier, Esq., Law Office of Robert N. Pelier, P.A., Coral Gables, FL, Attorney for Defendant JULIO C. DIAZ.
Samuel J. Rabin, Esq., Miami, FL, Attorney for Defendant GREGORIO RAFAEL SUAREZ.
Anthony W. Lacosta, Esq., Office of the United States Attorney.
ORDER GRANTING MOTION OF SUNBEAM TELEVISION CORPORATION AND BRIAN ANDREWS TO QUASH SUBPOENA
This cause came on to be heard on April 26, 2004 upon the motion of SUNBEAM TELEVISION CORPORATION and BRIAN ANDREWS (collectively "SUNBEAM") to quash the subpoena served upon ANDREWS by defendant JULIO DIAZ. The Court, having examined the file, heard argument of counsel and being otherwise advised in the premises:
ORDERS AND ADJUDGES:
1. ANDREWS is a WSVN/Channel 7 news reporter who was served with a subpoena to testify at the hearing on DIAZ's motion to suppress. In his professional capacity as a television news reporter, ANDREWS in October 2003 prepared and broadcast a news report concerning the arrest of DIAZ, and seizure of a boat carrying a large amount of cocaine. In the broadcast, ANDREWS reported that law enforcement officials stopped a yacht named the "Happy Lady" and discovered the cocaine after a search of the boat. ANDREWS further reported that officials began their investigation based on an anonymous tip to the "1-800-BE-ALERT" drug hotline. DIAZ has proffered no evidence that ANDREWS has personal knowledge of the events leading up to the arrest of defendants and the search of the boat.
2. DIAZ seeks to compel ANDREWS' testimony, asserting that ANDREWS reported information received from government officials that law enforcement agents based their initial stop of DIAZ's boat on an anonymous tip to the 1-800-BE-ALERT phone number. DIAZ is seeking ANDREWS' testimony to verify details about the alleged tip, and his conversations with law enforcement officials. Additionally, DIAZ asserts that the government has changed its position concerning the justification for the stop of DIAZ's boat, and that ANDREWS' testimony is relevant to the purported change.
3. SUNBEAM contends DIAZ has failed to satisfy the three-part test necessary to overcome the qualified journalist's privilege against compelled testimony. Specifically, SUNBEAM asserts DIAZ has failed to present evidence establishing that: (1) the testimony sought is relevant to the issues under consideration in the motion to suppress; (2) the same information cannot be obtained from alternative sources; or (3) how the testimony sought is so compelling that DIAZ cannot otherwise prevail on his motion to suppress without it.
4. Federal courts, including the Eleventh Circuit, have "overwhelmingly recognized a qualified privilege for journalists which allows them to resist compelled disclosure of their professional news gathering efforts and results, whether published or not." McCarty v. Bankers Insurance Co., 195 F.R.D. 39, 44 (N.D. Fla. 1998). This reporter's privilege stems from the adverse effect of forcing journalists to testify in judicial proceedings about the substance of their news reports. See United States v. Caporale, 806 F.2d 1487, 1503-04 (11th Cir. 1986) (reporters' subpoenas quashed where defendants failed to show alternative sources of information did not exist or that reporters had information relevant to the defense); Miller v. Transamerican Press, Inc., 621 F.2d 721, 725 (5th Cir. 1980) (formally adopting reporter's privilege enunciated by other circuits). The privilege may be overcome only if the information sought is shown to be: (a) highly relevant; (b) necessary to the proper presentation of the case; and (c) unavailable from other sources. Caporale, 806 F.2d at 1504. The party seeking to compel a reporter's testimony must establish all three prongs by "clear and convincing evidence." McCarty, 195 F.R.D. at 47.
5. DIAZ has failed to make the required evidentiary showing, primarily because he has failed to establish that ANDREWS has information which is relevant to DIAZ's motion to suppress and which is not available elsewhere. The details of the anonymous tip have been well-documented by the filings and testimony in this case. The substance of communications from law enforcement agents to ANDREWS is not relevant to their alleged actions or the basis for the stop and seizure of evidence. Moreover, ANDREWS has no information concerning the government's purported change in position concerning the justification for the stop of DIAZ's boat.
6. DIAZ also has failed to show that he has a compelling need for ANDREWS' testimony. As his motion makes clear, DIAZ has asserted numerous arguments and facts to support his motion to suppress — none of which relate to ANDREWS or his news report. To the extent DIAZ is seeking ANDREWS' testimony to verify statements by law enforcement agents contained in the news report, this is legally insufficient to overcome the privilege.See, e.g., United States v. Blanton, 534 F. Supp. 295 (S.D. Fla. 1982) (subpoena quashed where government sought reporter's testimony for the sole purpose of verifying that the statements and quotations attributed to the defendant were factually accurate).
7. Accordingly, the motion to quash by SUNBEAM TELEVISION CORPORATION and BRIAN ANDREWS is hereby GRANTED.
DONE AND ORDERED.