## Facts

- Paul and Erma Berger owned and operated a large ranch near Jordan, Montana.
- Federal Fish & Wildlife Service agents obtained and executed a search warrant for the ranch and appurtenant structures (excluding the residence) to seek evidence of federal wildlife-law violations, including alleged poisoning of protected birds.
- Federal officials entered and conducted the search while a CNN/Turner media crew accompanied them under a written agreement permitting filming and recording for later commercial broadcast.
- The Bergers alleged agents facilitated and coordinated with the media to obtain dramatic footage beyond legitimate law-enforcement needs.
- After the search, Paul Berger was prosecuted, convicted of a misdemeanor pesticide-labeling offense, and acquitted on felony eagle-killing charges.
- The Bergers sued federal officers, the United States, and media entities/personnel, asserting Fourth Amendment (Bivens) claims, Federal Wiretap Act claims, and state-law tort claims, and sought to enjoin further broadcast.
- The district court granted summary judgment to all defendants, and the Bergers appealed.

## Issues

1. Whether federal agents violated the Fourth Amendment by permitting and assisting a commercial media crew to film the execution of a search warrant, supporting a Bivens claim.
2. Whether the media defendants could be treated as federal actors under a joint-action theory and thus face Bivens liability.
3. Whether recording and later use/disclosure of conversations during the search stated claims under the Federal Wiretap Act.
4. Whether the media defendants were entitled to summary judgment on state-law claims (including trespass and intentional infliction of emotional distress) and whether injunctive relief could be pursued.

## Decision

- The Ninth Circuit reversed the district court’s summary judgment on the principal claims and remanded.
- It held the Bergers stated a viable Bivens claim that agents exceeded the warrant’s lawful objectives by facilitating filming for broadcast.
- It held the record supported a triable issue that the media defendants acted jointly with federal officials and could be treated as federal actors for Bivens purposes.
- It reversed summary judgment on the Bergers’ Federal Wiretap Act claims, permitting litigation over whether protected oral communications were intentionally intercepted and whether exceptions applied.
- It reversed summary judgment on state-law trespass and intentional infliction of emotional distress claims against the media defendants.
- It allowed the Bergers to pursue injunctive relief at the summary-judgment stage, given the alleged illegality of the filming and recording.

## Legal Principles

- A valid search warrant and probable cause do not authorize conduct unrelated to the warrant’s lawful objectives; actions not reasonably related to executing the warrant may render a search unreasonable under the Fourth Amendment.
- Allowing private media to enter and film a search for commercial broadcast can exceed the permissible scope of a warrant-based intrusion when it serves non-law-enforcement aims.
- Private parties may be subject to constitutional tort liability when they participate in coordinated, joint action with federal officials in executing the challenged conduct.
- Lawful officer presence under a warrant does not automatically negate privacy expectations for purposes of the Federal Wiretap Act; recording of “oral communications” may be actionable if intentional interception and statutory elements are met.
- A warrant to search does not necessarily confer authority for private media to be on the premises; unauthorized entry can support trespass and related tort claims, and alleged conversion of a search into a broadcast event may support an emotional-distress theory.

## Conclusion

The Ninth Circuit held that turning a warrant search into a filmed media event pursuant to a government-media agreement could violate the Fourth Amendment and support Bivens liability for both federal officials and participating media as joint actors, and it reinstated related Wiretap Act and state tort claims for further proceedings.


Berger v. Hanlon, 129 F.3d 505 (9th Cir. 1997)