Laura Sennett v. United States of America

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 LAURA SENNETT,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee,
No. 11-1421 and 
VINCENT ANTIGNANO, in his
individual capacity; ARLINGTON
COUNTY; JASON K. BRYK, in his
individual capacity; PRINCE
WILLIAM COUNTY,
Defendants. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, Senior District Judge.
(1:10-cv-01055-TSE-JFA)
Argued: December 7, 2011
Decided: January 30, 2012
Before TRAXLER, Chief Judge, and MOTZ and KEENAN,
Circuit Judges.
Affirmed by published opinion. Chief Judge Traxler wrote the
opinion, in which Judge Motz and Judge Keenan joined.

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COUNSEL
ARGUED: Jeffrey Louis Light, LAW OFFICE OF JEFFREY
LIGHT, Washington, D.C., for Appellant. Julie Ann Edel-
stein, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee. ON BRIEF: Neil H. Mac-
Bride, United States Attorney, Lauren A. Wetzler, Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
OPINION
TRAXLER, Chief Judge:
Laura Sennett appeals the district court’s order granting
summary judgment to the United States on her claim seeking
money damages for alleged violations of the Privacy Protec-
tion Act ("PPA"). See 42 U.S.C. § 2000aa. For the reasons
that follow, we affirm.
The facts are essentially undisputed. Sennett is a photojour-
nalist who claims a special interest in covering protests, politi-
cal demonstrations, and "grassroots activism." J.A. 12. Since
2005, Sennett has published her photographs under the pseud-
onym "Isis" in various publications such as the Toronto Free
Press. Sennett has also posted her photography and commen-
tary on her website, her personal blog and the Internet in gen-
eral.
On April 11, 2008, Sennett received a phone tip that there
would be a demonstration during the International Monetary
Fund’s ("IMF") annual spring meeting at the Four Seasons
Hotel in Washington, D.C., where some of the 200 delegates
that attended the meeting were housed. Following the tip,
Sennett arrived at the Four Seasons at approximately 2:30
a.m. on April 12, 2008, in order to photograph the protest.
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According to Sennett, she was unaware that the purported
protesters planned to destroy property or commit other crimi-
nal acts; she merely intended to photograph the event and
publish the resulting photographs.
The incident was captured on tape by hotel surveillance
cameras, which showed a group of about sixteen individuals
gathered at the main entrance of the hotel. Many in the group
were wearing masks, black hooded jackets, and sunglasses,
although some made no effort to disguise their identities. A
number of the individuals wore backpacks. Several of the
individuals entered the hotel lobby and threw firecrackers and
smoke-generating pyrotechnic devices, along with paint-filled
balloons, at various targets in the lobby. At some point, one
of the individuals in the lobby shattered a large glass window
by the entrance. After the vandals left the building, all of the
individuals, including those who had remained outside of the
hotel lobby, fled on foot or by bicycle. The hotel estimated
that the "protesters" caused more than $200,000 in property
damage.
Officer Vincent Antignano, who was a detective with the
Prince William County Police Department and a deputized
federal marshal for the FBI Joint Terrorism Task Force, inves-
tigated the incident. In reviewing the hotel’s security camera
footage, Officer Antignano noticed a white female using a
small handheld camera to videotape or photograph the protest.
The unidentified photographer wore dark clothing, a light col-
ored beret, black combat boots, and she carried a gray and
black backpack. She could be seen arriving at the Four Sea-
sons hotel at the same time as the other individuals in the
group. Like several others present, the photographer did not
enter the lobby and remained outside during the incident in
the lobby. And, after the people who damaged the lobby
exited the hotel, the unidentified female fled from the hotel
with or in the same general direction as the protesters.
Eventually, Officer Antignano identified the female pho-
tographer as Sennett. In his affidavit in support of a search
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warrant for her residence, Officer Antignano explained that he
discovered Sennett’s identity based on tips provided by two
"reliable sources":
A reliable source (RS #1) who is not in the posi-
tion to testify, but has provided reliable information
in the past, advised that the unidentified white
female has been seen at several protests throughout
the Washington DC area. Furthermore, she is fre-
quently seen wearing the light colored beret and
black combat boots at demonstrations in the Wash-
ington DC area.
With the help of open source websites ([e.g.]
Google, Youtube), a white female matching the
same physical description[ ] was observed on video-
tape demonstrating in front of FBI Headquarters . . .
on December 8, 2007. She was also observed dem-
onstrating in front of the Church of Scientology . . .
on February 10, 2008. During both events, she was
observed wearing the same light colored beret and
black combat boots captured on hotel security cam-
eras.
A second reliable source (RS #2), who is not in
the position to testify, but has provided reliable
information in the past, advised that the unidentified
white female goes by the name of "ISIS". The source
was able to provide a cellular telephone number
. . . .
. . . [O]pen source information regarding the cellu-
lar telephone number . . . revealed a Laura Sennett
. . . living [in] . . . Arlington, Virginia. A photograph
obtained from Virginia [DMV] of Sennett matched
the . . . female captured on the . . . Hotel security
cameras.
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J.A. 26-27. Officer Antignano obtained Sennett’s address
using the foregoing information, and various officers con-
ducted follow-up surveillance of her residence and confirmed
that Sennett lived there.
Based on this information, Officer Antignano sought a
search warrant, believing it likely that Sennett’s residence
contained evidence of suspected criminal activity that
occurred during the IMF protest at the Four Seasons, includ-
ing burning or destroying a dwelling, see Va. Code 18.2-77;
manufacturing, possessing, or using fire bombs or explosives,
see Va. Code 18.2-85; and injuring property, see Va. Code
18.2-137. The magistrate issued the requested warrant. The
warrant authorized seizure of items connected with the IMF
protest, such as clothing worn by Sennett during the event,
along with essentially anything that might store pictures or
video:
Any and all computers and peripheral devices, such
as but not limited to: desktop, laptop, mobile and
handheld computers, printers, scanners, external
drives and tapes, CDs, DVDs, thumb drives, flash
cards, and any other digital media capable of storing
digital or electronic data. Any and all computer hard-
ware and software that is used with the operation of
these computers, to view or create data. . . . Any and
all cell phones, personal digital assistants, and other
devices in which records and data may be stored.
Any and all beret[s], black combat/military style
boots, gray/black backpack, including any identifi-
able clothing related to the offense. Gunpowder,
smoke devices, firecrackers, flash powder, hobby
cord, and any or all items related to smoke generat-
ing pyrotechnic devices, paint, balloons, or similar
items that may have been used in the commission of
the instant offense.
J.A. 29.
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On September 23, 2008, Officer Antignano and numerous
other law enforcement officers executed the search warrant.
The agents seized dozens of items, including an external hard
drive allegedly containing more than 7,000 photographs, two
computers, several cameras, and several camera memory
cards. According to Sennett’s complaint, three officers,
including Officer Antignano, told Sennett during the raid that
they knew she was a photojournalist. Sennett purportedly
admitted during the search that she was present and took pho-
tos at the hotel during the protest, and that the photos were
located on her computer. Sennett was never arrested or
charged with any crimes relating to this incident.
Believing the search of her apartment to be unlawful, Sen-
nett brought this action against the United States under the
Privacy Protection Act ("PPA"). See 42 U.S.C. §§ 2000aa et
seq.* The district court granted summary judgment in favor
of the United States. The court concluded that the "suspect
exception" to the PPA, see 42 U.S.C. § 2000aa(a)(1), barred
Sennett’s claim because there was probable cause to believe
that Sennett was involved in criminal activity at the Four Sea-
sons hotel on April 12, 2008, and the search of her home
related to the investigation of that incident. See Sennett v.
United States, 778 F. Supp. 2d 655, 666 (E.D. Va. 2011).
On appeal, Sennett argues, as she did below, that summary
judgment was inappropriate because the facts, if viewed in a
light most favorable to her, did not permit a finding of proba-
ble cause. We disagree.
Congress passed the PPA in response to Zurcher v. Stan-
ford Daily, 436 U.S. 547, 567-68 (1978), in which the
Supreme Court held that the Fourth Amendment does not pro-
hibit the search of a newspaper office for photographs reveal-
ing the identities of those who assaulted police officers during
*Sennett originally named several other defendants in this action; how-
ever, only the United States remains as a defendant.
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a demonstration, even though no one employed by the news-
paper was suspected of involvement. See Guest v. Leis, 255
F.3d 325, 340 (6th Cir. 2001) ("[T]he PPA was enacted to
afford the press and certain other persons not suspected of
committing a crime with protections not provided currently by
the Fourth Amendment." (internal quotation marks omitted)).
Accordingly, the PPA prohibits government searches for doc-
uments and materials that are intended for publication. See 42
U.S.C. § 2000aa(a) & (b) (prohibiting the search for and sei-
zure of materials possessed with "a purpose to disseminate to
the public"); Citicasters v. McCaskill, 89 F.3d 1350, 1353
(8th Cir. 1996) (explaining that the PPA "generally prohibits
government officials from searching for and seizing docu-
mentary materials possessed by a person in connection with
a purpose to disseminate information to the public").
The PPA, however, carves out various exceptions to the
prohibition against searches and seizures of materials
intended for public dissemination. See 42 U.S.C.
§§ 2000aa(a)(1) & (2); 2000aa(b)(1)-(4). In this case, the gov-
ernment relies on the so-called "suspect exception," under
which "[t]he police can avoid the constraints of the [PPA] . . .
when the person possessing the materials is a criminal sus-
pect, rather than an innocent third party." Guest, 255 F.3d at
341. In order for the government to take advantage of this
exception, however, there must be "probable cause to believe
that the person possessing such materials has committed or is
committing the criminal offense to which the materials
relate." 42 U.S.C. §§ 2000aa(a)(1) & (b)(1).
Probable cause exists if the "facts and circumstances within
the officer’s knowledge . . . are sufficient to warrant a prudent
person . . . in the circumstances shown, [to conclude] that the
suspect has committed, is committing, or is about to commit
an offense." Michigan v. DeFillippo, 443 U.S. 31, 37 (1979).
"Probable cause does not require the same type of specific
evidence of each element of the offense as would be needed
to support a conviction." Adams v. Williams, 407 U.S. 143,
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149 (1972). Indeed, it is irrelevant to the probable cause anal-
ysis what crime a suspect is eventually charged with, Deven-
peck v. Alford, 543 U.S. 146, 153 (2004), ("The rule that the
offense establishing probable cause must be ‘closely related’
to, and based on the same conduct as, the offense identified
by the arresting officer at the time of arrest is inconsistent
with [ ] precedent."), or whether a person is later acquitted of
the crime for which she or he was arrested, see DeFillippo,
443 U.S. at 36.
The district court concluded that the government was enti-
tled to summary judgment under the suspect exception based
on the totality of the undisputed facts derived from the hotel
security camera footage. First, "Sennett arrived . . . within
seconds of the vandals," suggesting "that Sennett communi-
cated in some fashion with the vandals prior to the incident."
Sennett, 778 F. Supp. 2d at 663. Second, "Sennett arrived at
the hotel in the middle of the night—at 2:30 a.m.," suggesting
the intent "to avoid observation by the public or the authori-
ties" of unlawful acts rather than "to advance a viewpoint by
displaying . . . that viewpoint to others." Id. The district court
noted that Sennett "did not display any press credentials, nor
did she carry any photographic equipment other than the
small, handheld camera." Id. at 664. Third, "similar to the
vandals, Sennett was wearing dark clothing and a backpack."
Id. at 663. Fourth, "[a]fter the acts of vandalism were commit-
ted, Sennett fled from the area in the same direction as the
vandals," even though she had remained outside of the hotel
and never entered the lobby. Id. at 664. Fifth, Officer Antig-
nano discovered video footage of Sennett engaging in other
demonstrations in Washington, D.C. Taking the facts as a
whole, the district court concluded there was probable cause
to believe Sennett conspired with the group of vandals or
aided and abetted the offenses committed by the group:
While the security camera footage does not show
Sennett entering the hotel or participating in the acts
of vandalism caught on tape, there was probable
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cause to believe that she had committed a criminal
offense relating to the April 12 Four Seasons inci-
dent, such as engaging in a conspiracy to commit
vandalism or aiding and abetting acts of vandalism.
Indeed, a reasonable person would be warranted in
believing that Sennett’s role in the vandalism was to
serve as the group’s photographer or videographer,
so that a memorialization of the event could be used
to advance the group’s purposes and to claim respon-
sibility. Furthermore, the property seized at Sennett’s
residence during the September 23, 2008 search was
related to the April 12 Four Seasons incident.
Id.
Sennett argues that none of these facts requires a finding of
probable cause and that there is an innocent explanation for
her actions. For instance, Sennett argues that she believed
there was a noncriminal purpose for protesting at night—such
as waking up the IMF delegates—rather than concealing
criminal acts under cover of darkness. Moreover, Sennett
argues that she fled not out of a consciousness of guilt, but
because she was frightened for her safety. Such plausible
explanations, based on Sennett’s subjective mindset, however,
do not factor into the probable cause calculus. "[I]n consider-
ing the totality of the circumstances, [a defendant’s] innocent
explanations for his odd behavior cannot eliminate the suspi-
cious facts from the probable cause calculus. The test is not
whether the conduct under question is consistent with inno-
cent behavior; law enforcement officers do not have to rule
out the possibility of innocent behavior." Ramirez v. City of
Buena Park, 560 F.3d 1012, 1024 (9th Cir. 2009) (internal
quotation marks omitted). Furthermore, the fact that any one
fact—such as Sennett’s wearing dark clothing or her close
temporal and physical proximity to the commission of the
crimes—would not alone support a finding of probable cause
does not mean that probable cause was absent, since "[a]n
assessment of the presence of probable cause must be based
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on the totality of the relevant circumstances." United States v.
Allen, 631 F.3d 164, 172 (4th Cir. 2011).
Sennett also contends that Officer Antignano knew Sennett
was a photojournalist and failed to reveal this fact in his affi-
davit offered in support of the search warrant application.
This fact, even if taken as true, cannot destroy probable cause
without more. As the district court observed, "to accept Sen-
nett’s argument that her status as a photojournalist is a game
changer in the probable cause analysis . . . is tantamount to
doing what Congress declined to do, namely exclude journal-
ists from the PPA’s ‘suspect exception.’" Sennett, 778 F.
Supp. 2d at 666. Although Sennett’s occupation provides an
innocent explanation for her appearance in the security cam-
era footage, the other facts nevertheless permitted Officer
Antignano to reasonably conclude that Sennett was involved
in the acts of vandalism. See United States v. Booker, 612
F.3d 596, 601 (7th Cir. 2010) ("The possibility of an innocent
explanation does not vitiate properly established probable
cause.").
Sennett also points to an FBI memorandum written two
years after the crime as definitive proof that there was no
probable cause. The document states that an Assistant United
States Attorney "reviewed the circumstances of the case and
indicated that the [United States Attorney’s Office] would not
be pursuing charges against . . . Sennett as there was no evi-
dence to date to suggest that Sennett participated in the van-
dalism." J.A. 35. The existence of probable cause, however,
is assessed based on the circumstances known to the officers
at the time of the search or arrest; the fact that a suspect is
never charged with an offense does not conclusively establish
that officers did not have probable cause to arrest for the
offense. Cf. DeFillippo, 443 U.S. at 36 ("The validity of the
arrest does not depend on whether the suspect actually com-
mitted a crime; the mere fact that the suspect is later acquitted
of the offense for which he is arrested is irrelevant to the
validity of the arrest.").
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Finally, we reject Sennett’s argument that the question of
whether the "suspect exception" bars her PPA claim is one
that cannot be resolved at the summary judgment stage. When
"there is no genuine issue of material fact, the existence of
probable cause becomes a purely legal question subject to de
novo review." S.P. v. City of Takoma Park, Md., 134 F.3d
260, 272 (4th Cir. 1998) (emphasis added). Given that virtu-
ally all of the relevant facts are derived from videotape that
is in the record, there are no factual issues to be decided. Sen-
nett offers a plausible, innocent explanation for her appear-
ance on the videotape—that she was present to document
what she believed would be a lawful demonstration—and sug-
gests that her explanation is a reasonable inference a trier of
fact could draw. Her view might well be accepted by a trier
of fact; but as pointed out earlier, this does not negate proba-
ble cause. Accordingly, we conclude that the United States is
entitled to summary judgment based on the "suspect excep-
tion" to the PPA.
AFFIRMED
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