Radio reporter’s phone seized by North Dakota police, later returned

A North Dakota police investigator seized a cell phone belonging to Tom Simon, a Williston-based reporter for Coyote Radio 98.5 and Williston Trending Topics News Radio Live, during a school board meeting on Jan. 10, 2022. The phone was ultimately returned.

Simon told the U.S. Press Freedom Tracker he had been covering the departure of the school district’s former superintendent since October 2021. Multiple individuals contacted Simon with details from a closed 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.

The BCI obtained a search warrant for Simon’s cell phone on Jan. 4 but waited six days — until the next school board meeting — to execute it. Simon told the Tracker that BCI police investigator Charissa Remus approached him during the Jan. 10 meeting and asked him to come with her to answer some questions.

While Remus asked him to identify his sources, Simon said a second agent seized his cell phone from the table where he had left it. Remus then presented Simon a copy of the signed search warrant and asked him to tell her the device’s passcode. Simon refused to identify his sources but provided the passcode, not knowing whether he had the right to refuse.

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 day, and Stenehjem immediately ordered that the phone be returned to Simon.

According to documents reviewed by the Tracker, Simon’s phone was returned to him just before 3 p.m. on Jan. 11 without having been searched or its contents downloaded. Simon’s attorney, Kevin Chapman, told the Tracker they are working with a computer expert to confirm whether the phone’s contents were accessed while it was in custody.

“Having it returned quickly does not solve the problem,” Simon told the Tracker. “Once the veil of secrecy is pierced, the message to the sources or future sources is that law enforcement can still find out who they are, and that message is difficult to stomach.”

Simon said he was particularly concerned by the decision to hold off serving the warrant until it could be done in front of his presumed sources in order to intimidate them.

Judge Benjamen Johnson also signed a search warrant sent to Verizon Wireless for Simon’s phone records, which the Tracker documented here. On Jan. 11, Remus, the BCI agent, wrote a letter to Verizon telling them 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.

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.”