A North Dakota police investigator obtained a search warrant for the phone records of Tom Simon, a Williston-based reporter for Coyote Radio 98.5 and Williston Trending Topics News Radio Live, on Jan. 4, 2022.
The Associated Press reported that Simon was covering a series of closed-door meetings about the school board’s handling of the departure of the district’s former superintendent. Simon told the U.S. Press Freedom Tracker that multiple individuals contacted him with details from an executive session of the school board. In the wake of his reporting, Williston police initiated an investigation at the behest of the school board president and enlisted the help of the North Dakota Bureau of Criminal Investigation to identify Simon’s sources.
Judge Benjamen Johnson signed a search warrant for the seizure of Simon’s cellphone and a second warrant issued to Verizon Wireless for the reporter’s cellphone records on Jan. 4. Both warrants were reviewed by the Tracker.
During a school board meeting on Jan. 10, BCI agents approached Simon, demanded that he identify his sources, presented him with the signed search warrant and confiscated his cellphone. The Tracker has documented that seizure here.
Under the state’s shield law, police cannot seize a journalist’s work product without a court hearing to determine if the “failure of disclosure of such evidence will cause a miscarriage of justice.” No such hearing was held in Simon’s case.
The AP reported that North Dakota Newspaper Association Attorney Jack McDonald contacted state Attorney General Wayne Stenehjem about the seizure the following morning, and Stenehjem immediately ordered the phone returned. That same day, BCI police investigator Charissa Remus wrote a letter to Verizon telling the communications company to “PLEASE DISREGARD IMMEDIATELY.” The police investigation has since been closed.
Stenehjem told the AP that some people involved in the chain of events did not know that Simon was protected by the shield law and expressed regret over the mistake.
In a statement shared with the Tracker, Stenhjem said, “This office reviewed the matter and determined that the phone was lawfully taken pursuant to a valid search warrant issued by a judge.
“The attorney general advised the agent that in light of a state statute that requires a further court warrant to view the contents of the phone in cases like this.”
A spokesperson for Stenehjem’s office told Fargo-based outlet InForum that moving forward all current and future BCI agents will receive training on the state’s shield law and it will be incorporated into the curriculum at the Law Enforcement Training Academy.
Simon’s attorney, Kevin Chapman, told the Tracker he is researching potential civil rights claims but said they have not decided if or when they will file a lawsuit.
“There has to be a freedom of the press. Reporters should be able to feel free to go get the news and to do investigative journalism without law enforcement breathing down their necks and then pressuring them for their sources,” Chapman said. “This is a perfect example of overreaching on behalf of law enforcement into the rights of private citizens and it simply cannot stand.”