The three affidavits used as the basis for an Aug. 11and other related locations were not filed until three days after the search warrants were executed, records provided by the paper's attorney show.
The affidavits were signed on the day of the raids by Marion Police Chief Gideon Cody, but they were not filed until Aug. 14. They were filed for the office of the Marion County Record and the homes of the newspaper publisher and Marion Councilwoman Ruth Herbel.
"While the affidavits purport to be signed before Magistrate Viar on the day of the illegal searches, no explanation has been provided why they were not filed prior to the execution of the illegal searches," Bernie Rhodes, the Record's attorney, said.
The affidavits reveal Cody's reasoning for the searches. He alleges that reporter Phyllis Zorn illegally obtained driving records for local restaurateur Kari Newell. According to the Record, Newell had accused the newspaper of illegally obtaining drunk driving information about Newell and supplying it to Herbel.
"The Record did not seek out the information," the newspaper wrote. "Rather, it was provided by a source who sent it to the newspaper via social media and also sent it to Herbel."
While investigating the tip, the Record verified the information about Newell using public records.
In the affidavit, Cody wrote that the Department of Revenue told him the information about Newell had been downloaded by Zorn and someone using the name "Kari Newell."
"Newell said she did not download or authorize anyone to download any information from the Department of Revenue and someone obviously stole her identity," Cody wrote in the affidavit.
Cody determined that accessing the document involved "either impersonating the victim or lying about the reasons why the record was being sought."
The license records, normally confidential, can be legally accessed under a variety of circumstances. Rhodes said the way Zorn accessed the records was legal under both state and federal law.
"Zorn had every right, under both Kansas law and U.S. law, to access Newell's driver's record to verify the information she had been provided by a source," Rhodes said. "She was not engaged in 'identity theft' or 'unauthorized computer access' but was doing her job."
In the days since the raid, Marion County Attorney Joel Ensey said that hisfound "insufficient evidence exists to establish a legally sufficient nexus between this alleged crime and the places searched and the items seized."
The investigation into whether the newspaper broke state laws is now being led by the Kansas Bureau of Investigation.
Police have faced pushback in the aftermath of the search. The federal Privacy Protection Act protects journalists and newsrooms from most searches by law enforcement, requiring police usually to issue subpoenas rather than search warrants. The raid appears to have violated federal law and the First Amendment, according to Seth Stern, advocacy director of Freedom of the Press Foundation.
"This looks like the latest example of American law enforcement officers treating the press in a manner previously associated with authoritarian regimes," Stern said on Aug. 11. "The anti-press rhetoric that's become so pervasive in this country has become more than just talk and is creating a dangerous environment for journalists trying to do their jobs."
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