Arrest warrants

Like search warrants, arrest warrants generally are supported with affidavits and other evidence that can be useful to reporters. But courts have been less active in determining when arrest warrants must be made public.

The Pennsylvania Supreme Court addressed the issue in 1987, finding a common-law (and perhaps constitutional) presumption of access to affidavits attached to arrest warrants. The case, Commonwealth v. Fenstermaker, dealt with three defendants who “were arrested pursuant to warrants issued by a magistrate in connection with charges of homicide, rape, indecent assault, conspiracy, and underage drinking.”

The arrest warrants were based on affidavits in which a police detective explained the basis of probable cause to arrest the defendants. After their arraignment but before preliminary hearings, a newspaper requested access to the affidavits.

The court noted that the newspaper was seeking the warrant information after an actual arrest was made, not before. Because documents filed with magistrates are judicial documents, and arrest warrant affidavits become a part of the permanent record of the case, the court found that “the affidavits in question cannot be regarded as private documents, but rather must be taken to be part of the official public case record.”

It therefore recognized a common-law presumption of access to arrest warrants and related materials. Because of the presumption of access, the court concluded that after arrests have been made pursuant to warrants, the supporting affidavits must be publicly available, unless the court specifically orders them to be sealed. It added that because the common law right protects such information from automatic sealing, it did not need to reach the First Amendment issue.

Similarly, the Connecticut rules at issue in the Annie Le case provide that affidavits submitted in support of a request for an arrest warrant are presumptively open. A judge may seal them “upon written request of the prosecuting authority and for good cause shown” for up to two weeks. The court may renew the seal, but renewal is permitted only if a higher standard is met — the court must find that renewal “is necessary to preserve an interest which is determined to override the public’s interest in viewing such materials.” Judges must “first consider reasonable alternatives to any such order and any such order shall be no broader than necessary to protect such overriding interest.”

As the court in the Le case noted, Connecticut’s rules were “fashioned to mirror United States Supreme Court precedent and supporting federal and state authorities regarding the public right to access documents filed in connection with criminal cases.”

In recognition of this presumption of openness, the court released the affidavits supporting Raymond Clark’s arrest warrant after redacting “material that is inflammatory; material of significant import that is unfairly prejudicial to the defendant; and material that constitutes an invasion of privacy unnecessary to the public’s understanding of the criminal process.”

The case law that exists therefore suggests that arrest warrants and related materials generally are considered to be court records subject to either a common-law or a constitutional presumption of openness, at least once the arrest is made and the warrant return filed with the court. This presumption can be overcome under some circumstances, which range from a showing of “good cause” to a finding that the sealing is narrowly tailored to meet an overriding interest.