D. Warrants, wiretaps and related materials
The public has no right of access to proceedings and records relating to the issuance of a search warrant before the warrant is executed, including an order sealing such proceedings and records. After execution, the public has a common law, but not a First Amendment, right of access to affidavits in support of search warrants, which right may be overcome by law enforcement’s interest in protecting ongoing investigations. See Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir. 1989); Media Gen. Operations v. Buchanan, 417 F.3d 424 (4th Cir. 2005); Washington Post v. Hughes, 923 F2d 324 (4th Cir. 1991); see also In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 295 (4th Cir. 2013) (While we agree that the public must ordinarily be given notice and an opportunity to object to sealing of public documents, we have never held, nor has any other federal court determined, that pre-indictment investigative matters such as § 2703(d) orders, pen registers, and wiretaps, which are all akin to grand jury investigations, must be publicly docketed.”) (internal quotations omitted).
A district court in the Fourth Circuit has suggested that a First Amendment right of access to judicial records in criminal matters arises after indictment but before arrest. See In re Application of Reporters Committee for Freedom of the Press To Unseal Criminal Prosecution of Julian Assange, No. 1:18-mc-37, 2019 WL 366869, *4 (E.D. Va. Jan. 30, 2019).
Idaho Court Administrative Rule 32 exempts from disclosure pre-sentence investigation reports; unreturned search warrants; affidavits and sworn testimony or records supporting the issuance of a search or arrest warrant pending the return of the warrant; unreturned arrest warrants; and applications made and orders granted for the interception of wire, electronic or oral communications pursuant to Idaho Code § 18-6708, recordings of intercepted communications provided to the court and reports made to the court regarding such interceptions under Idaho Code §18-6708(7). I.C.A.R. 32(g)(2)-(6). Once a search warrant or arrest warrant is returned, however, the rule provides that they should be made available. Indeed, that is the general practice of law enforcement and prosecutors in Idaho, although there have been some notable exceptions.
For instance, the issue of access to returned search warrant materials arose in the high profile trial of Daniel Ehrlick for the murder of 8-year-old Robert Manwill. In that case, the Idaho Statesman sought access to the returned search warrant materials related to Manwill. The state objected, citing concerns with the defendant’s right to a fair trial given the pre-trial publicity associated with the matter. Magistrate John Hawley denied the Statesman’s motion, finding that continued sealing of such records was appropriate to protect the defendant from the “substantial risk of prejudice created by disclosure” and that “Defendants’ Sixth Amendment right to a fair trial is a compelling interest that outweighs the public’s First Amendment right of access to the documents.” In the Matter of an Application for A Search Warrant, Memorandum Decision and Order Denying Motion to Unseal Search Warrants and Affidavit Documents at 7, Fourth Judicial District, Case No. CV OT 0916109 (Ada Co., Idaho, Sept. 19, 2009). Almost two years later (but prior to trial), the same judge unsealed the requested documents holding, “The Defendants’ right to a fair trial is no longer at issue, the documents may now be unsealed.” In the Matter of an Application for A Search Warrant, Order Unsealing Search Warrant, Affidavit and Findings of Fact at 1, Fourth Judicial District, Case No. CV OT 0916109 (Ada Co., Idaho, July 13, 2011).
The Pennsylvania Rules of Criminal Procedure provide that the process for obtaining search warrants is closed to the public and is conducted ex parte. See Pa. R. Crim. P. 209-12. The Rules make clear that “[t]he issuing authority shall not make any search warrants and any affidavit(s) of probable cause available for public inspection or dissemination until the warrant has been executed.” Pa. R. Crim. P. 212(a). The Rules further provide that “[u]nexecuted warrants and the associated affidavits of probable cause are not public records and upon return to the issuing authority the unexecuted warrants and affidavit(s) shall be destroyed by the issuing authority.” Id. 212(b). Once a search warrant is executed, the Rules set forth a procedure whereby the government can seek to seal the affidavit supporting the search warrant for “good cause.” Pa. R. Crim. P. 211. The comments to the Rules explain that good cause is shown where disclosure “would defeat an ongoing investigation or endanger an undercover agent or informant.” Id. 211 cmt. In addition, once a defendant is charged, the Rules provide that search warrant affidavits can remain sealed upon a showing of good cause (and even prevent the defendant from accessing the affidavit), and the comments to the Rules note that in making that assessment, courts should “consider any pertinent information about the case, such as whether any items were seized, whether there were any arrests, and whether any motions were filed. The justice or judge should also consider the defendant’s need to have the affidavit(s) to prepare his or her case, especially the right to file motions, including a motion to suppress or a motion for return of property” Id.; see also In re Search Warrant, 20 Media L. Rep. 1910, 1912 (Northampton Cty. C.C.P. Oct. 23, 1992) (trial court decision issued before modification of criminal rules noting that the denial of access to a search warrant may be justified until after an arrest if publication of the warrant could (1) cause the suspect to flee; (2) deprive the police of a meaningful opportunity to interrogate a suspect; (3) deprive police of the opportunity to test the credibility of third parties who come forward with information; and (4) endanger eyewitnesses).
The Pennsylvania Supreme Court has instructed that “a search warrant is a public judicial document.” PG Publ’g Co. v. Commonwealth, 614 A.2d 1106, 1108 (Pa. 1992). Yet, “[t]he ex parteapplication for the issuance of a search warrant and the issuing authority’s consideration of the application are not subject to public scrutiny.” Id. And, while the court noted in a case involving access to search warrant documents that “[t]here is no historical tradition of public access to search warrant proceedings,” it acknowledged that search warrant applications are filed with district justices and that those documents “upon which the district justice bases a decision to issue a search warrant are also judicial in character, for the decision to issue a search warrant is a judicial decision.” Id. Once a search warrant has been executed, the “need for secrecy will ordinarily expire.” Id. In determining whether these documents should be sealed, a trial court should, as a practical matter, conduct an “in-camera review” of the documents. Id. at 1110. In addition to the factors discussed in the Rules, older cases suggest that a court might deny access to protect a defendant’s fair trial rights. See id. at 1108; Commonwealth v. Fenstermaker, 530 A.2d 414, 420 (Pa. 1987) (stating that pretrial publicity caused by disclosure of affidavits may interfere with defendant’s Sixth Amendment rights).
The Pennsylvania Superior Court has held that members of the press do not have a First Amendment or common law right of access to search warrants issued in connection with an investigating grand jury, even in cases where the grand jury’s work has concluded. See In re Allegheny Cty. Investigating Grand Jury, 181 A.3d 349, 357-59 (Pa. Super. 2018). The court’s holding in that case was principally based on the unique tradition of secrecy afforded to grand jury proceedings. See id.
Returns, records related to warrants: Pa. R. Crim. P. 210 provides that “[t]he judicial officer to whom the warrant was returned shall file the search warrant, all supporting affidavits, and the inventory with the clerk of the court of common pleas of the judicial district in which the property was seized.” Pennsylvania courts have held that search warrants and accompanying documents that are filed with the clerk are available to the public, except as required by Pa. R. Crim. P. 211 (providing that search warrant affidavit may be sealed upon showing of good cause). See Commonwealth v. Ortiz, 11 Media L. Rep. 2316, 2316-17 (Lehigh Cty. C.C.P. July 12, 1985).
Wiretaps: A Pennsylvania statute provides that wiretap records – specifically, applications, final reports, and orders – “may be disclosed only upon a showing of good cause . . . .” 18 Pa. Cons. Stat. § 5715. There are no reported decisions analyzing what a journalist must demonstrate to establish “good cause” under the statute. In a non-media case, the Pennsylvania Superior Court held that a requestor, who sought wiretap records in order to support a criminal defendant’s post-conviction relief application, failed to establish good cause for unsealing those records because she did not explain “her relationship to [the defendant] or stake in his post-conviction proceedings.” Kessler v. Public Documents Pen Register and Wire Taps, 180 A.3d 406, 410 (Pa. Super. 2018).
The Vermont Rules for Public Access to Court Records contain an exception to the general right of public access for “[r]ecords of the issuance of a search warrant, until the date of the return of the warrant, unless sealed by order of the court”, as well as "[r]ecords of the denial of a search warrant by a judicial officer, unless opened by order of the court.” Vt. Pub. Acc. Ct. Rec. Rule 6(b)(15)-(16). The record of the issuance of a search warrant will become accessible on the execution of the warrant unless sealed pursuant to § 7(a) of the Vermont Rules for Public Access to Court Records. In determining whether to seal warrant issuance records, the court must apply the standards contained in In re Sealed Documents, 172 Vt. 152, 161-63, 772 A.2d 518, 526-28 (Vt. 2001).
Under the Vermont Public Records Act, records dealing with the detection and investigation of crime are exempt from disclosure, but only to the extent that the production of such records:
(i) could reasonably be expected to interfere with enforcement proceedings;
(ii) would deprive a person of a right to a fair trial or an impartial adjudication;
(iii) could reasonably be expected to constitute an unwarranted invasion of personal privacy;
(iv) could reasonably be expected to disclose the identity of a confidential source, including a state, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source;
(v) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecution if such disclosure could reasonably be expected to risk circumvention of the law;
(vi) could reasonably be expected to endanger the life or physical safety of any individual.
1 V.S.A. § 317(c)(5).