D. Warrants, wiretaps and related materials
One district court in the Eleventh Circuit has held that there is no First Amendment right of access to search warrant affidavits. In re Four Search Warrants, 945 F. Supp. 1563, 1567 (N.D. Ga. 1996). However, the court did recognize a qualified, common law right to inspect and copy search warrants. Id. at 1567. The court explained that if access to the search warrants interferes with the administration of justice, this might warrant curtailing access to those documents. Id. Thus, in determining whether to grant access to search warrants, the court engaged in a balancing test, considering factors such as "whether access is likely to promote public understanding of historically significant events, and whether the press has already permitted substantial access to the contents of the records." Id.
In In re Four Search Warrants, a district court within the Eleventh Circuit held that the public interest "in understanding the legal process, the preservation of the integrity of the fact-finding process, and the furtherance of the appearance of fairness" all outweighed the government interest in jeopardizing an ongoing investigation and media scrutiny of witnesses. Id. at 1568-569.
Nevertheless, while the balancing test weighed in favor of disclosure in that case, the Eleventh Circuit has held that protecting an ongoing law enforcement investigation can be a sufficiently compelling reason to block access to judicial documents like search warrants. See United States v. Valenti, 986 F.2d 708 (11th Cir. 1996); see also Bennett v. United States, No. 12–61499–CIV., 2013 WL 3821625, *4 (S.D. Fla. July 23, 2013).
In Bennett v. United States, a district court within the Eleventh Circuit denied a common-law right of access to judicial records in the form of sealed search-warrant affidavits at the pre-indictment stage but declined to decide whether that holding will apply in all cases. 2013 WL 3821625, *7.
The Eleventh Circuit has recognized a qualified, common law right of access to inspect and copy judicial records, which it has extended to wiretap materials. United States v. Rosenthal, 763 F.2d 1291, 1293 (11th Cir. 1985) (citing Nixon v. Warner Commc’ns Inc., 435 U.S. 589, 597 (1978). In Rosenthal, the Eleventh Circuit held that Title III of Federal Omnibus Crime Control and Safe Streets Act creates no independent bar to the public’s right of access to judicial materials with respect to wiretap materials legally intercepted and admitted into evidence pursuant to the statute. 763 F.2d at 1294. There, the Eleventh Circuit cited United States v. Dorfam, with approval, which stands for the proposition that "wiretap communications remain beyond the public access unless they are disclosed through testimony during a Court proceeding.” See Rosenthal, 763 F.2d at 1293 (citing United States v. Dorfman, 690 F.2d 1230, 1232-35 (7th Cir. 1982)). Thus, once wiretap materials are admitted into evidence, the Eleventh Circuit recognizes a right of access to those materials. Id. at 1293. The Act does prevent public access to wiretap evidence that the district court lawfully sealed in order to protect the privacy of defendants. Id. Additionally, a trial court may consider whether the administrative difficulties in providing access would disrupt the progress of the trial when deciding whether to release wiretap materials. Id. at 1295.
In United States v. Nelson, the U.S. District Court for the Middle District of Florida reaffirmed Rosenthal and denied access to wiretap materials "unless and until their contents are released at trial." No. 3:10–cr–23–J–32TEM., 2011 WL 305005, *1-2 (M.D. Fla. 2011).
The Second Circuit has recognized a qualified First Amendment right of access to pretrial wiretap materials. See In re N.Y. Times Co., 834 F.2d 1152 (2d Cir. 1987). Wiretap materials sealed under the Crime Control Act Title III (which presumes closure) may only be accessed for “good cause.” See In re N.Y. Times Co. to Unseal Wiretap & Search Warrant Materials, 2009 U.S. App. LEXIS 17642 (2d Cir. Aug. 7, 2009); Nat’l Broadcasting Co. v. U.S. Dep’t of Justice, 735 F.2d 51 (2d Cir. 1984).
The Second Circuit has recognized that search warrants “are unquestionably judicial documents” subject to the common law presumption of access. United States v. Cohen, -- F. Supp. 3d --, 2019 WL 472577 (S.D.N.Y. Feb. 7, 2019). Because search warrants are judicial determinations of government intrusion, the presumption of access is particularly strong. Id. at *4. In contrast, the narrower First Amendment presumption of access may not apply. Id. at *10. For example, in Cohen, the court held that neither “logic” nor “experience” dictated a First Amendment right of access to search warrant materials. Id. (engaging in a separate First Amendment analysis for each of the two types of search warrants at issue: those authorized pursuant to Rule 41 of the Federal Rules of Criminal Procedure, and those authorized pursuant to 18 USCA § 2703).
In Wilson v. Slatalla, 970 F. Supp. 405 (E.D. Pa. 1997), a district court in the Eastern District of Pennsylvania held that the fair report privilege extended to information contained in an affidavit in support of a search warrant. The court relied on the Pennsylvania Superior Court’s holding that the public has a presumptive right of access to search and arrest warrant affidavits. Wilson, 970 F. Supp. at 421.
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).
The Fifth Circuit extended the same “case-by-case approach previously used by [the] Court for assessing the common law qualified right of access to judicial records to situations involving an individual's request to access pre-indictment warrant materials such as . . . affidavits. . . . In cases involving a request to unseal affidavits in support of pre-indictment search warrants, district courts should exercise their discretion by balancing the public's right to access judicial documents against interests favoring nondisclosure.” United States v. Sealed Search Warrants, 868 F.3d 385, 396 (5th Cir. 2017).
The Sixth Circuit applies the “experience and logic” test when deciding if there is a First Amendment right of access to search warrants and related materials. Indianapolis Star v. United States, 692 F.3d 424, 429–30 (6th Cir. 2012).
On the experience prong, the court explained that “[i]t is indisputable that proceedings for the issuance of search warrants are not, and have not been, public.” Id. at 430. Along the same lines, “any documents filed in connection with the application process, are also, by necessity, submitted confidentially.” Id. Recognizing this, the newspapers in the Indianapolis Star case argued “that a First Amendment right of access to such documents attaches not upon their filing but rather only after the related search is executed.” Id. But the court found that even after search warrants are executed, the search warrant and related documents have not been “historically … made open to the press and public.” Id. This was despite the fact that search warrant documents are “routinely filed without seal” once they are returned to the clerk. Id.
The court also found that the logic prong did not support a finding of a First Amendment right of access to documents filed in search warrant matters. Id. at 431–32. The parties in the Indianapolis Star case agreed that “public access to search warrant documents prior to the execution of a search would harm criminal investigations by enabling criminal suspects to learn of impending searches and by potentially leading them to remove or destroy evidence.” Id. at 432. And even after the search warrant is executed, the court found that there would likely be harm to the criminal investigation from the release of search warrant materials. Id. The interests in disclosure posited by the newspapers were found to be outweighed by these threats to the criminal investigations, and, therefore, the logic prong also did not support a finding of a First Amendment right of access to documents filed in search warrant proceedings, including dockets sheets. Id. at 432–33.
The Court did recognized that the common law right of access attaches to search warrant documents filed with courts, but in that case, the trial court’s discretion to seal the requested documents was not abused. Id. at 431. Under the common law right of access, release “may occur … only if the district court in its discretion, as supervisor of its own records and files, finds that the public’s right to know outweighs interests of privacy in sealing a particular document.” Id. at 433 (citing United States v. Beckham, 789 F.2d 401, 409 (6th Cir. 1986)).
Warrants. The common law right of inspection attaches once a search warrant affidavit is filed with the clerk. In re Eye Care Physicians of Am., 100 F.3d 514, 517 (7th Cir. 1996). Federal Rule of Criminal Procedure 41(g) "facilitates observance of th[e common law] right by directing the judicial officer to file all papers relating to the search warrant in the clerk's office." Id. (citation omitted). The right of access to a warrant affidavit may be “circumscribed by a specific court order (sealed),” and the “Rule provides no time period before which the magistrate must release sealed documents filed with the clerk of the court nor does the rule say anything about access to sealed affidavits.” Id.
In affirming denial of a motion filed by the subject of search warrant to have the warrant affidavit unsealed, the Seventh Circuit held “[t]he trial court properly weighed the parties' respective rights” under the common law, including “the potential adverse consequences of granting immediate access to the warrant affidavits. Such consequences include the likelihood that the secrecy of grand jury proceedings would be violated,” and “disclosure of the affidavits might very likely impair the ongoing criminal investigation.” Id. at 518-19. Among other things, disclosing the sealed affidavits could reveal the identity of unnamed subjects not yet charged; there may be “mistaken notions concerning who might and might not be cooperating with the government or who may be subjects”; and the “cooperation of present and potential witnesses could be compromised or influenced.” Id. at 519. See also United States v. Daoud, 755 F.3d 479 (7th Cir. 2014) (rejecting defendant’s motion for access to classified documents submitted by government in support of its warrant applications pursuant to Foreign Intelligence Surveillance Act).
Northern District of Illinois Local Criminal Rule 41 provides, in pertinent part:
This rule, rather than LR26.2, governs a motion to seal a search warrant or seizure warrant. A motion to seal a warrant must be brought to the district judge or magistrate judge who signed the warrant, and must specify a date no more than 90 days later when the sealing order will expire absent a further court order. Any application for delayed notice of a search must comply with 18 U.S.C. § 3103. All filings will be unsealed upon the expiration of the sealing order.
N.D. Ill. Local Crim. R. 41(d). A motion to extend a sealing order for a warrant must be brought to the district judge or magistrate judge who signed the warrant and must be filed no later than three days prior to the expiration of the seal. Id., subd. (e). If the application and warrant are sealed at the time of the return of the search warrant, the return of the search warrant will also be filed under seal. Id., subd. (f). See also S.D. Ind. Local Crim. Rule 49.1-2(c)(2) (“warrant-type applications,” e.g., arrest warrants, search warrants, wiretaps, “may be filed under seal without motion or further order of the court, provided counsel has a good faith belief that sealing is required to ensure the safety, privacy or cooperation of a person or entity, or to otherwise protect a substantial public interest”); W.D. Wis. Admin. Order No. 337 Re: General Rules for Filing Documents Under Seal (search warrants, applications, and affidavits, and certain other documents may be filed under seal without prior court order).
United States v. Suppressed, No. 16 MC 261, 2019 WL 1077148 (N.D. Ill. Mar. 7, 2019) presented the “rare” question of “how the court should proceed” when a search warrant affidavit “properly subject to a seal order” is “nonetheless accessed by a member of the press”. There, a Chicago Sun-Times reporter “gained access to the affidavit by exploiting a docketing error in the court’s electronic filing system” and reported on it. After the court resealed the affidavit on the electronic docket, the Chicago Tribune moved to intervene and unseal. Granting Tribune’s motion, the court observed that “the applicable seal in this case was never a permanent one, and the default is for the seal to expire absent an on-going justification for secrecy. [N.D. Ill. L.Cr.R. 41.]. Given the extent of the public disclosure in this case, the court is unable to find that a sufficient justification exists here to overcome the Tribune’s interest in accessing the document.” Id. at *3.
Wiretap evidence. “Once wiretap evidence is obtained, Title III strictly limits the disclosure of such evidence as well as the applications, orders, and related filings associated with wiretaps”; the common law right of access does not extend to Title III materials, and there is no historical tradition of public access to Title III materials that would support a First Amendment access right. United States v. Blagojevich, 662 F.Supp.2d 998, 1001 (N.D. Ill. 2009) (citing United States v. Dorfman, 690 F.2d 1230, 1232 (7th Cir. 1982)).
In reversing a district judge’s order granting news media’s motion to unseal wiretap materials introduced at a suppression hearings, the Seventh Circuit held in Dorfman that neither Title III nor the First Amendment gave judges the authority to conclude that the harm of unsealing was outweighed by the newsworthiness of the materials. 690 F.2d at 1233-34. “Congress in Title III struck a balance between these interests that seems reasonable to us. It put no limits on the public disclosure of lawfully obtained wiretap evidence through public testimony in legal proceedings; but neither did it authorize wiretap evidence not made public in this manner to be made public another way without the consent of the people whose phone conversations were intercepted. . . . We do not think the First Amendment requires a different result. Wiretapping is not yet a constitutionally protected method of news gathering.” Id. at 1234.
While the district court in Blagojevich denied access to actual wiretap evidence, it granted media intervenors access to redacted versions of the briefs in support and in opposition of defendant's motion to suppress evidence (“with the identifying information about uncharged or not already publicly identified individuals redacted”). 662 F. Supp. 2d at 1005-06.
The Eighth Circuit has held that a qualified First Amendment “right of public access does extend to the documents filed in support of search warrant applications,” as a search warrant is “an integral part of a criminal prosecution.” In re Search Warrant for Secretarial Area–Gunn, 855 F.2d 569, 573–74 (8th Cir.1988) (denying immediate access to affidavits supporting search warrant applications, finding that disclosure would jeopardize the integrity of ongoing criminal investigations).
Arrest warrants and search warrants, with supporting affidavits and depositions, are open after execution and return. 197 Op. Att’y Gen. Ala. 13 (Oct. 10, 1984).
We know of no statutory or case law authority directly relating to whether the public has a right of access to wiretap materials; case law suggests, however, that the public might not have a right of access to wiretap materials until said materials are admitted into evidence at trial. See, e.g., Ex parte Easterwood, 980 So. 2d 367, 372 (Ala. 2007) (discussing closure of a suppression hearing related to wiretap recordings).
The record of proceedings relating to applications for and issuance of search warrants, and all documents related to those proceedings, including search warrants, affidavits, receipts and inventories, are required to be kept sealed until the warrant is identified in a charging document (or in a notice of subsequent warrants filed by the prosecutor after the initial charging document), unless the record is ordered unsealed by the court. Alaska Crim. R. 37(e). After the warrant is identified in a charging document or in a notice filed by the prosecutor, the record of proceedings and all related documents must be open to public inspection unless the court, for good cause shown, orders that the documents remain sealed for a further period. The initial charging document in all prosecutions must be accompanied by a listing of the numbers of all warrants issued in relation to the case unless the court waives this requirement for good cause shown. The prosecutor shall file notice of subsequent warrants issued in relation to the case once executed. If four years have elapsed since the issuance of the warrant and no charges related to the warrant have been filed, the record of proceedings and all related documents are unsealed and are thereafter be deemed “confidential” instead of “sealed,” unless the court, for good cause shown, delays the unsealing. Id.
Under Arizona law, a search warrant “shall be open to the public as a judicial record” after execution. Ariz. Rev. Stat. § 13-3918.A. This statute provides the timeframe within which warrants shall be executed. But see Phoenix Newspapers, Inc. v. Superior Court, 180 Ariz. 159, 882 P.2d 1285 (App. 1993) (finding that the statute did not mandate public disclosure).
To the extent these materials are filed with the court, Arizona Supreme Court Rule 123 provides that they are “presumed to be open to any member of the public for inspection.” Materials may be kept under seal or otherwise secreted only upon a showing of specific facts demonstrating that disclosure is outweighed by a countervailing interest. Ariz. R. Supreme Ct. 123(c)(1).
See United States v. Loughner, 769 F. Supp. 2d 1188 (D. Ariz. 2011) (concluding that media outlets have a qualified First Amendment right to inspect search warrant materials in Tucson shootings case, and that neither privacy nor fair trial rights outweighed that that right).
The First Amendment right of public access extends to the documents filed in support of search warrant applications. In re Search Warrant for Secretarial Area Outside Off. of Gunn, 855 F.2d 569, 573 (8th Cir. 1988). Restricting public access to these documents, however, may be necessitated by a compelling government interest in the on-going investigation. Id. at 574.
Under Penal Code § 1534(a), “[t]he documents and records of the court relating to the warrant need not be open to the public until the execution and return of the warrant or the expiration of the 10-day period after issuance. Thereafter, if the warrant has been executed, the documents and records shall be open to the public as a judicial record.” However, the court has discretion to seal warrants and probable cause affidavits to protect the criminal investigation and the defendant’s right to a fair trial. See People v. Jackson, 128 Cal. App. 4th 1009, 27 Cal. Rptr. 3d 596 (2005); People v. Hobbs, 7 Cal. 4th 948, 873 P.2d 1246, 30 Cal. Rptr. 2d 651 (1994). The materials obtained pursuant to the warrant are not judicial records subject to public disclosure under Section 1534. Saunders v. Superior Court, 12 Cal. App. 5th Supp. 1, 13, 219 Cal. Rptr. 3d 5 (2017).
The Colorado Criminal Justice Records Act (“CCJRA”) governs public access to criminal justice records. C.R.S. § 24-72-301, et seq. The CCJRA distinguishes between records of “official actions” and other “criminal justice records.” An “official action” includes “an arrest; indictment; charging by information; disposition; pretrial or posttrial release from custody; judicial determination of mental or physical condition; decision to grant, order, or terminate probation, parole, or participation in correctional or rehabilitative programs; and any decision to formally discipline, reclassify, or relocate any person under criminal sentence.” C.R.S. § 24-72-302(7). “Criminal justice records” are “all books, papers, cards, photographs, tapes, recordings, or other documentary materials, regardless of form or characteristics, that are made, maintained, or kept by any criminal justice agency in the state for use in the exercise of functions required or authorized by law or administrative rule . . . .” C.R.S. § 24-72-302(4).
While records of “official actions” generally “shall be open for inspection by any person at reasonable times,” other criminal justice records “may be open for inspection” at the discretion of the custodian, subject to certain exceptions barring disclosure. Madrigal v. City of Aurora, 2014 COA 67, ¶ 9, 349 P.3d 297, 299 (Colo. App. 2014) (citing C.R.S. §§ 24-72-303, 0304, -305); Freedom Colo. Info., Inc. v. El Paso Cnty. Sheriff’s Dept., 196 P.3d 892, 897 (Colo. 2008) (“When a request is made to inspect a particular criminal justice record that is not a record of an ‘official action,’ the decision whether to grant the request is consigned to the exercise of the custodian’s sound discretion under sections 24-72-304 and -305, C.R.S. (2008).”). Custodians of records of both official actions and other criminal justice records may “make such rules and regulations with reference to the inspection of such records as are reasonably necessary for the protection of such records and the prevention of unnecessary interference with the regular discharge of the duties of the custodian or his office.” C.R.S. § 24-72-303(1); C.R.S. § 24-72-304(1).
In the high-profile criminal trial of the Aurora movie theater shooter, People v. Holmes, No. 12CR1522, a Colorado trial court declined to permit disclosure of “affidavits of probable cause, subpoenas, arrest warrants, [and] search warrants,” as “contrary to the public interest” under the Colorado Criminal Justice Records Act. Order Re: Motion to Unseal Court File, People v. Holmes, No. 12CR1522, at *7 (Dist. Court, Cnty. of Arapahoe Aug. 13, 2012) (pdf).
The Colorado Judicial Department’s Public Access to Court Records policy (pdf) generally permits public access to court records. (Section 4.10.)
The Colorado Supreme Court has declined to recognize “a constitutional right of access to any and all [criminal] court records in cases involving public concern.” People v. Owens, 2018 CO 55, ¶ 7, 420 P.3d 257, 258 (Colo. 2018). “[W]e have never recognized any such constitutional right—whether under the First Amendment [to the U.S. Constitution] or Article II, section 10 of the Colorado Constitution.” Id. ¶ 8. The Colorado Supreme Court stated that there is “no ‘absolute right to examine’ court records” but “inspection may be permitted ‘at the discretion of the court’” and in accordance with “laws and administrative procedures currently in place—including, but not limited to, the Colorado Criminal Justice Records Act, §§ 24-72-301 to -309, C.R.S. (2017)—that are predicated upon the absence of a constitutionally guaranteed right of access to criminal justice records.” Id. ¶¶ 9–10.
In cases of arrest without a warrant, assuming the person is still in custody post-arraignment, Connecticut law requires a probable cause hearing. Affidavits submitted for that hearing are presumptively public. Conn. R. Super. Ct. § 37-12(d). The judge presiding at that hearing may order the materials sealed only for good cause, via a process laid out by statute. Conn. R. Super. Ct. § 37-12(b), (c).
As for other pretrial documents: The Connecticut Supreme Court has emphasized that the presumption of openness codified at Conn. R. Super. Ct. § 42-49A applies to all “judicial documents,” defined as “any document filed that a court reasonably may rely on in support of its adjudicatory function.” State v. Komisarjevsky, 302 Conn. 162, 176, 25 A.3d 613, 622 (2011). Noting that the Connecticut Appellate Court had, on this basis, already held that the presumption of openness includes pretrial documents, the Court assumed, without deciding, that a pretrial witness list in a criminal case would normally be subject to disclosure. Id. (Nevertheless, it ultimately upheld nondisclosure against the media intervenors’ request, citing concerns about a fair trial).
In Connecticut federal trial court, judicial documents in criminal cases may be sealed “only if [the district court] makes particularized findings on the record demonstrating that sealing is essential to preserve compelling interests, and that sealing in whole or in part is narrowly tailored to serve those interests.” D. Conn. Local. Crim. R. 57(b)(3)(B).
Warrants and related records have been considered on a case-by-case basis in the District of Columbia. For instance, in In re WP Company, the district court found that, after the investigation was closed, there was a qualified right of access to records related to a search warrant issued to a specific individual in connection with possible illegal campaign finance activities undertaken during the 2010 D.C. mayoral election. In re WP Co., No. CV 16-MC-351 (BAH), 2016 WL 1604976, at *2 (D.D.C. Apr. 1, 2016) (ordering the government to submit proposed redactions to the court before unsealing the dockets and allowing access to redacted documents). However, just a few months after that order, the same court clarified that its order only allowed the production of documents related to the individual specified in the Post’s initial application and not to all warrants in the larger investigation. In re WP Co., 201 F. Supp. 3d 109, 113–16 (D.D.C. 2016).
Another D.C. district court recognized a right of public access to post-investigation warrant materials. In re N.Y. Times Co., 585 F. Supp. 2d 83 (D.D.C. 2008) (allowing access to warrant materials related to the search of property owned by a person of interest in the criminal investigation of the mailing of anthrax to members of Congress and the media after 9/11).
As to the documents underlying a material witness warrant, the D.C. Circuit has allowed sealing in a prosecution for sexual abuse, when the underlying documents contained “intensely private and painful information about [two juvenile victims'] medical and mental health issues” and allowing redaction of the witnesses' names, rather than sealing the documents, would “entail a grotesque invasion of the victims' privacy.” United States v. Brice, 649 F.3d 793, 797 (D.C. Cir. 2011)).
There is a common law right of access to transcripts of tape recordings introduced into evidence at a criminal trial, and such access should occur as soon as practicable after, if not simultaneously with, the presentation of the transcripts to the jury. In re News World Commnc’ns Inc., 17 Media L. Rep. 1001 (D.D.C. 1989) (concerns of criminal defendants mentioned in transcripts and still awaiting trial were not sufficiently compelling to overcome public's right of access, in view of ability of voir dire to fully protect those defendants' fair trial rights, and as any harm to unindicted third parties who are mentioned in transcripts is not serious enough to warrant restricting public's right of access); see also In re N.Y. Times Co., 585 F. Supp. 2d 83, 87 n.3 (D.D.C. 2008) (recognizing First Amendment and common law right of access to certain sealed search warrant materials relating to the government’s investigation into the anthrax mailings of 2001, but allowing government to redact name of confidential informant); United States v. Thompson, 1989 WL 248625 (D.C. Cir. 1989) (wiretap transcripts prepared by prosecution for jury in criminal trial, which were made public “as soon as practicable after, if not simultaneously with, their presentation to the jury,” were disclosed because claims of defendants who were awaiting trial on related charges, and unindicted third parties mentioned in transcripts, were insufficient to outweigh presumption of public access to judicial records); In re NBC, 653 F.2d 609 (D.C. Cir. 1981) (district court erred in denying television broadcasters' post-trial application to inspect and copy video and audio tapes introduced as evidence and played in open court during “Abscam” trial of former U.S. congressman; government made no showing that release of tapes would risk prejudice to defendant's hypothetical second trial).
However, courts have successfully kept wiretap evidence and applications from the public where there exists a risk of prejudice. In re NBC, 653 F.2d 609 (D.C. Cir. 1981) (providing access to documents but stating that the court has discretion to redact transcripts and recordings). Courts have also prevented access to preserve the sanctity of an ongoing investigation. In re Sealed Documents, 15 Media L. Rep. 1983 (D.D.C. 1988) (government's compelling interest in successful completion of ongoing investigation into fraud in defense procurement process outweighs public's common law and First Amendment rights of access to materials relating to search warrants executed as part of investigation).
D.C. courts have also addressed requests to unseal pen register applications. Pen registers are devices that record the phone numbers of all outgoing and incoming calls on a particular telephone line (but not the contents). The Pen Register Act, 18 U.S.C. § 3122, et seq., requires that court orders allowing pen registers must be sealed and that the existence of the pen register not be disclosed. 18 U.S.C. § 3123(d). A D.C. district court has recognized that this statutory language requires only sealing of the pen register order itself, not the sealing of any and all information the order may contain. In re Leopold, 300 F. Supp. 3d 61, 83 (D.D.C. 2018), reconsideration denied, 327 F. Supp. 3d 1 (D.D.C. 2018) (citing Labow v. U.S. Dep’t of Justice, 831 F.3d 523, 528 (D.C. Cir. 2016)), appeal pending. So, the information in a pen register order that appears in other documents is not necessarily protected and could be disclosed.
The same district court held that there is no First Amendment right of access to pen register information because there is not a longstanding tradition of public access to pen register materials, but that decision is currently on appeal. In re Leopold, 300 F. Supp. 3d at 86. However, that court recognized a common law right of access to pen register warrant materials that do not reveal personally identifying information when the U.S. attorney’s office did not contend that such disclosure would impede an ongoing criminal investigation or reveal information that would impinge on personal privacy. Id. at 91.
The Stored Communications Act, 18 U.S.C. § 2703, allows the government to compel service providers to disclose records or information pertaining to their customers as well as the contents of their customers’ stored electronic communications. In re Leopold, 300 F. Supp. 3d at 84 (quoting In re Search of Info. (“Google”), No. 16-MJ-00757 (BAH), 2017 WL 3445634, at *6 (D.D.C. July 31, 2017)). The Stored Communications Act does not require sealing of related warrants or orders. Like with pen register orders, a D.C. district court has recognized a common law right of access to Stored Communications Act materials that do not reveal personally identifying information when the U.S. attorney’s office did not contend that such disclosure would impede an ongoing criminal investigation or reveal information that would impinge on personal privacy. Id. at 91.
District of Columbia
A District Court in D.C. has held that there is a qualified First Amendment right of access to search warrant materials following the close of the investigation. See Matter of the Application of WP Co. LLC, No. CV 16-MC-351 (BAH), 2016 WL 1604976, at *2 (D.D.C. Apr. 1, 2016) (“under the First Amendment, the Post has a qualified right to access court records associated with searches conducted in furtherance of the now-closed Campaign Finance Investigation.”); In re Application of the N.Y. Times Co. For Access to Certain Sealed Court Records, 585 F. Supp. 2d 83 (D.D.C. 2008) (granting newspapers’ motion for access to search warrants, warrant applications, supporting affidavits and other warrant materials related to the federal anthrax investigation under both the First Amendment and the common law). Other related cases include an earlier decision of the D.C. Circuit, staying the unsealing of documents seized from a third-party non-defendant that were introduced in a pretrial criminal suppression hearing. See United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1981); see also Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 933-37 (D.C. Cir. 2003) (holding that the “narrow First Amendment right of access to information . . . does not extend to non-judicial documents that are not part of a criminal trial,” including “information compiled during the government’s investigation of terrorist acts,” and also holding that any common law right of access to such documents was preempted by FOIA); Bacha v. Obama, 653 F. Supp. 2d 32, 33-35 (D.D.C. 2009) (in habeas corpus proceeding brought by Guantanamo Bay detainee, court granted government’s motion to designate as “protected” the specific dates of interviews disclosed in intelligence reports because government’s argument that “someone could use that date to reconstruct the speaker’s identity” was a compelling reason to protect the information, but denied motion with respect to more general information).
After a series of administrative mistakes related to the docketing of search-warrant cases, the Chief Judge for the U.S. District Court for the District of Columbia “directed that a new category be added to the Court’s website where all search warrants and arrest warrants will be publicly available after execution, unless a separate sealing order is entered to redact all or portions when the government makes the showing required by United States v. Hubbard . . . and Washington Post v. Robinson.” In re Email Account Maintained on Computer Servers Operated by Google, Inc. Headquartered at 1600 Amphitheatre Parkway, Mountain View, CA, 946 F. Supp. 2d 67, 69 (D.D.C. 2013). Unsealed case materials are available at: http://www.dcd.uscourts.gov/dcd/CourtOpinions.
Sealed federal government surveillance applications and orders under the Pen Register Act (PRA) and Stored Communications Act (SCA) represent a special category of evidence collection records, highly regulated as they are under specific statutes.
In a suit in the District Court for the District of Columbia, petitioners sought as prospective relief the publication of case numbers and certain associated docket information (including the case name, date of application, and magistrate judge) for all pen register or trap and trace (PR/TT) orders, § 2703(d) orders, SCA warrants, and their associated applications. The court held that there is no First Amendment right of access to these materials, because the prerequisite longstanding tradition of public access (part of the “experience and logic” test) does not exist with respect to PR/TT and SCA materials. Matter of Leopold to Unseal Certain Elec. Surveillance Applications and Orders, 300 F. Supp. 3d 61, 85 (D.D.C. 2018). It further held, however, that the common law right of access applied, as the materials were properly considered judicial records and the Hubbard factors weighed in favor of disclosure. Id. The common law right extended to prospective access to PR/TT, SCA warrants, and § 2703(d) materials from closed criminal investigations, and only to those portions of the materials that do not reveal personally identifying information. Id. at 91. The court identified the following categories of information to be disclosed in response to this right: “the total number of PR/TT, § 2703(d), and SCA warrant applications filed by the USAO, the number and type of accounts that such applications target, the names of the providers to which these applications are directed, and the primary criminal offense under investigation for these applications.” Id. at 108; see also In re Access to Certain Sealed Warrant Materials, No. 19-mc-44 (BAH), 2019 WL 2184825, at *3 & n.1 (D.D.C. May 21, 2019) (holding that a common law right of access applied to SCA warrant materials, and declining to address whether a First Amendment right of access applied).
Florida Rule of Judicial Administration 2.420(c)(6) exempts from disclosure “copies of arrest and search warrants and supporting affidavits retained by judges, clerks, or other court personnel until execution of said warrants or until a determination is made by law enforcement authorities that execution cannot be made.” Although this provision of the Rule provides for disclosure under certain circumstances, a somewhat conflicting provision of Florida’s Public Record Law, Section 119.071(2)(c)(1), prohibits the disclosure of “active criminal intelligence information and active criminal investigative information.”
In Florida Publishing Co. v. State, 706 So. 2d 54 (Fla. Dist. Ct. App. 1998), the First District Court of Appeal interpreted collectively Section 119.071(2)(c)(1) and the rule. The court held that Rule 2.420 specifically adopts the exemption for records of active criminal investigations, sealing search warrant affidavits and materials indefinitely because they are deemed to be exempt from public records requests.
At least one lower court has questioned the decision in Florida Publishing. In Florida Freedom Newspaper v. State, 2004 WL 1669663 (Fla. Cir. Ct. 2004), the Fourteenth Judicial Circuit held that applying the “blanket rule” established in Florida Publishing to keep both executed and unexecuted search warrants confidential was unconstitutional. Id. at 2. “Any closure order must be narrowly applied and drawn with great specificity.” Id. citing Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1 (Fla. 1982). Thus, if a court follows the reasoning in Florida Freedom Newspaper, the proponent of closure of criminal court records, including warrants, must overcome the presumption of openness by meeting the requirements of the Lewis test, defined above.
Although the Florida statutes do not address wiretap recordings expressly, any wiretap recording that constitutes “active criminal intelligence information and active criminal investigative information” is likely to be considered confidential under Florida’s Public Record Law, Section 119.071(2)(c)(1). Additionally, the Florida Supreme Court has noted that, in applying the Lewis test to determine if closure of a public record is warranted, the court should “exclude the contents of a confession or of a wiretap, or the nature of the evidence seized, when the issues involved relate to the manner in which the prosecution obtained this material.” Lewis, 426 So. 2d at 8–9.
Once filed with the court, warrants, wiretaps, and related materials are presumptively available for public inspection. See Atlanta Journal v. Long, 258 Ga. 410, 413 (1988) (“There is a presumption that the public will have access to all court records,” which may be overridden only “in cases of clear necessity.”). Uniform Superior Court Rule 21 states that: “all court records are public and are to be available for public inspection unless public access is limited by law or by the procedure set forth [in the Rule].”
Depending upon the status of the investigation or prosecution, warrants and related materials may also be available from law enforcement directly under the Open Records Act. See O.C.G.A. § 50-18-72(a)(4).
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).
In 2010, an Illinois court held no right of access attached to a search warrant and a related search inventory that formed part of an ongoing investigation. In re Gee, 2010 IL App (4th) 100275, ¶ 37, 956 N.E.2d 460, 466, 353 Ill. Dec. 598, 604. The court distinguished the case from a Fourth Circuit decision where a right of access had attached to an affidavit supporting a search warrant after the underlying investigation had concluded. Id. at ¶ 32 (citing In re Application & Affidavit for a Search Warrant, 923 F.2d 324, 326 (4th Cir. 1991)).
If a person is arrested or summoned for an offense, information that identifies the person, describes any charges on which the arrest or summons is based, and relates to the circumstances of the arrest or the issuance of the summons must be disclosed. Ind. Code § 5-14-3-5(a). If a person is received in a jail or lock-up, information that identifies the person, the reason for being placed in lock-up, including the name of the person on whose order the person is being held, the time and date that the person was received, the time and date of the person’s discharge, and the amount of the person’s bail or bond, if fixed, shall be disclosed. Ind. Code § 5-14-3-5(b).
Entire criminal cases are excluded from public access when the request to exclude is filed contemporaneously with a request for an arrest warrant. Ind. Admin. Rule 9(G)(2)(j). Additionally, “[w]hen probable cause to justify issuance of an arrest warrant has been established, the Case Records shall be publicly accessible unless the judge determines that the facts presented in the request for exclusion for Public Access support a reasonable belief that public disclosure will increase the risk of flight by the defendant, create an undue risk of harm to the community or a law enforcement officer, or jeopardize an on-going criminal investigation.” Id. 9(G)(2)(j)(i). An order excluding public access under Administrative Rule 9(G)(2)(j) expires when the defendant is arrested. Id. 9(G)(2)(j)(ii).
Similarly, court records related to violations of post-conviction supervision are excluded from public access when the request to exclude is filed contemporaneously with the notice of violation and the request for an arrest warrant. Ind. Admin. Rule 9(G)(2)(m). Additionally, “[w]hen probable cause to justify issuance of an arrest warrant has been established, the Case Records shall be publicly accessible unless the judge determines that the facts presented in the request for exclusion for Public Access support a reasonable belief that public disclosure will increase the risk of flight by the defendant, create an undue risk of harm to the community or a law enforcement officer, or jeopardize an on-going criminal investigation.” Id. 9(G)(2)(m)(i). An order excluding public access under Administrative Rule 9(G)(2)(m) expires when the defendant is arrested. Id. 9(G)(2)(m)(ii).
If a prosecuting attorney moves to seal the indictment or information, the court is at liberty to do so. Ind. Code § 35-34-1-1(d).
Generally, records filed in the office of the clerk of court are public records, open to inspection by Iowa Code Chapter 22. However, a statutory exception exists for information filed with the court for the purpose of securing a search warrant. Pursuant to Iowa Code § 808.13, search warrant information is to be contained in a sealed confidential record until the peace officer has executed the warrant and has made a return. (2018). In limited circumstances, upon request from an officer, search warrant information may be ordered to be held confidential even after the warrant is returned. See Iowa Code § 22.7 (setting forth certain public records that are to be kept confidential). Courts have the authority to grant a request to seal search warrant information after it is returned under Iowa Const. Art. I, Sec. 7.
In the Fifth Judicial District of Iowa, which includes the City of Des Moines and surrounding counties, by administrative order of the Chief Judge of the District issued in 2009, specific procedures govern whether search warrant information will remain under seal. That procedure specifies that a party or other person may file an application to open sealed search warrant information. Upon application, the court will schedule a hearing to determine whether the search warrant information or parts of it shall remain sealed and any additional terms, including whether it can be produced in redacted form. See Iowa District Court, Fifth Judicial District Administrative Order 2009-6 (Feb. 4, 2009).
In the Eighth Circuit, a qualified First Amendment right of public access extends to documents filed in support of search warrants. In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569, 577 (8th Cir. 1988). However, the court may seal documents if the court is presented with statements indicating a specialized need and based upon the stated need, the court makes specific and particular findings that there is a compelling state interest and there are no less restrictive alternatives. See id.
The Iowa Code includes provisions dealing with the disclosure of wiretap information. Investigative or law enforcement officers who obtain knowledge of the contents of a wire, oral, or electronic communication may only disclose the contents to another investigative or law enforcement officer or while giving testimony under oath in a criminal proceeding. See Iowa Code § 808B.4 (2018). Otherwise, the content cannot be disclosed. Id.
A Kansas statute criminalizes unauthorized disclosures of arrest and search warrants before they are executed. K.S.A. 21-5906 (formerly K.S.A. 21-3827). After being executed, the warrants are considered open. However, for years, even after execution of warrants, the information underlying them generally was inaccessible to the public. Specifically, the authorities could withhold the affidavits that investigators had filed to establish probable cause for issuance of the warrants. One statute, K.S.A. 22-2302, presumed closure of affidavits pertaining to arrests, and another, K.S.A. 22-2502, imposed the same restriction on affidavits related to searches.
Journalists in the state objected to closure of affidavits, arguing that the public had a strong interest in knowing about the affidavits and how they established probable cause for issuance of warrants. Then, in 2014, by a nearly unanimous vote, the Kanas Legislature amended K.S.A. 22-2302 and K.S.A. 22-2502 to presume openness rather than closure of affidavits. The catalyst for the amendments was publicity about an aggressive search in 2012 by a sheriff’s deputies of a Kansas couple’s home. The search yielded no evidence of a crime. Afterward, the couple complained that they and their young children had been held at gunpoint and severely traumatized. To learn the reason for the search, the couple requested the probable cause affidavit that had been filed in support of the search. However, their request was denied. In response to a public outcry, the legislature amended the statutes and allowed public access to affidavits. See Chris Oberholtz, Documents: Evidence Flimsy in Leawood Drug Raid, KCTV-5/Associated Press (May 6, 2013), https://www.kctv5.com/news/documents-evidence-flimsy-in-leawood-drug-raid/article_c4be83cf-2237-54ca-876a-589e6dd6d841.html; Four Kansans Honored for Efforts on Open Government, Kansas Press Association (July 28, 2014), http://kspress.com/news/2014/07/28/four-kansans-honored-for-efforts-on-open-government.
Now, after authorities execute a warrant, the affidavit that supports it must be made available to “any person, when requested.” K.S.A. 22-2302(c)(1)(B) and 22-2502(e)(1)(B). However, an affidavit is not automatically produced immediately upon request. The statutes prescribe a procedure under which the clerk of court receives the request for the affidavit and then notifies the judge, the prosecutor and defendant or defense attorney of the request. The prosecutor also is required to notify the victim of the defendant’s alleged criminal offense. After receiving notice, the prosecutor and the defendant or defendant’s counsel review the requested affidavit and may ask a judge to seal or release it only with redactions. If the prosecutor and defendant or defendant’s attorney proposes to restrict access to the affidavit, they must provide “the reasons supporting” redaction or sealing. K.S.A. 22-2302(c)(3)(A) and (B); 22-2502(e)(3)(A) and (B). The statutes allow up to 10 business days for a response to the request for the affidavit.
The judge may order redaction or sealing if disclosure of the affidavit “would” cause any of 10 harms listed in the statutes. K.S.A 22-2302(4) and K.S.A. 22-2502(4). The harms range from jeopardy to the safety of a crime victim or a witness to revelation of a Social Security number or other such personal information.
The statutes as amended became effective July 1, 2014. Access to affidavits issued before that date may be requested under a provision of the Kansas Open Records Act that allows, but does not require, non-disclosure of a criminal investigation record. K.S.A. 45-221(a)(10). Under this provision, a judge may order disclosure of an affidavit issued before July 1, 2014, if doing so would serve the public interest and under certain other conditions.
Before the statutory amendments that presume openness of arrest and search affidavits, Kanas was considered to be “out of step with most other states in keeping probable cause affidavits . . . under seal even after a case has gone to trial.” An editor of the Wichita Eagle said that criminal proceedings “‘should not be conducted behind a curtain. When they are, citizens are denied a critical opportunity to assess the effectiveness of the criminal justice system.”’ Steve Painter, Opening Arrest Records Splits Prosecutors, Media, Wichita Eagle (Feb. 8, 2006).
Apart from statutes, a federal district court in Kansas in 1992 adopted a position taken in the Fourth Circuit that access to warrant papers may be sought as a matter, not of First Amendment right, but rather of common law. The Kansas court declined to grant access under the common law because of the “sensitive nature of the information contained” in affidavits, the fact that a criminal investigation was ongoing, and a need to protect the identities and the “privacy interests and safety” of persons mentioned in the affidavits. In re Flower Aviation of Kan., Inc., 789 F. Supp. 366, 368 (D. Kan. 1992). The Fourth Circuit case adopted in by the Kansas court said that a judge must consider “all of the relevant facts and circumstances” in deciding whether to file warrant papers under seal or determining that secrecy is not justified. Baltimore Sun Co. v. Goetz, 886 F.2d 60, 65 (4th Cir. 1989).
Kansas law also has maintained secrecy of procedures related to wiretapping. Disclosures outside of law enforcement about wiretaps, and apart from court proceedings, are proscribed under See K.S.A. 22-2515 and K.S.A. 22-2516.
In Kentucky’s state courts, warrants, returns on warrants, and copies of the complaint or affidavit pursuant to which warrants are issued are to be returned to the issuing court “within a reasonable time” of a warrant’s execution. Ky. R. Crim. P. 2.12(1). Returned warrants and accompanying materials are generally available to the public as court records. Ky. R. Crim. P. 3.02(4).
Such records, if possessed by the Clerk of Court, should be accessible through a Public Records request.
When records in the possession or control of specified “prosecutive, investigative, and law enforcement agencies” pertain “to pending criminal litigation or any criminal litigation which can be reasonably anticipated,” they are exempt from disclosure under the Public Records Act. See La. R.S. 44:3.
Administrative Order JB-05-20, “Public Information and Confidentiality,” states that the courts may keep confidential information contained in or relating to “a pending request for or an outstanding search warrant, arrest warrant, or other document that contains confidential law enforcement information.” Id. § II(H)(4). The Maine Rules of Criminal Procedure provide that “[t]he warrant and affidavit materials shall be treated as impounded until the return is filed.” M. R. Crim. P. 41(f)(2)(A). After the return is filed, the arrest warrant and supporting materials are a public record. However, “The judge, upon motion or upon the judge’s own motion, may for good cause order the clerk to impound some or all of the warrant materials until a specified date or event.” M. R. Crim. P. 41(h). There are no reported cases interpreting the rule.
Under the Maryland Rules, the public does not have a right of access to search warrants (or materials filed in support of such warrants) prior to their execution. Md. Rule 16-907(g)(2)(A); see also Md. Rule 4-601 (authorizing sealing and destruction of search warrants). A judge who issues a search warrant must retain a copy of it until the warrant is returned, executed or unexecuted. Md. Rule 4-601(d). But see 87 Md. Op. Att’y Gen. 76 n.4 (2002) (noting that the Fourth Circuit has found a common law right of access to such materials) (citing Baltimore Sun Co. v. Goetz, 886 F.2d 60, 65 (4th Cir. 1989)).
Upon return of an executed warrant, the judge must file the warrant and related papers with the clerk of the court in which the property was seized, and the clerk keeps the warrant under seal unless the court issues an order directing otherwise. Md. Rule 4-601(g). An unexecuted warrant is void at the expiration of fifteen days and returned to the judge; the judge then may destroy the warrant or “make any other disposition the judge deems proper.” Md. Rule 4-601(h). Nor is there a right to inspect an arrest warrant or the charging documents on which it is based until either: (a) the warrant has been served and a return of service has been filed with the court or (b) 90 days have elapsed. Md. Rule 16-907(g)(3); Md. Rule 4-212(d)(3).
The Massachusetts Supreme Judicial Court has held that there is no right of access to a search warrant affidavit before the warrant and accompanying affidavit are returned (which occurs after an indictment or a criminal proceeding in which the affidavit is in issue). Newspapers of New England, Inc. v. Clerk-Magistrate, 531 N.E.2d 1261, 1267 (Mass. 1988). Once a warrant is returned, however, the warrant and the affidavit submitted to support the warrant become public records. Mass. Gen. Laws ch. 276, § 2B.
In Minnesota state courts, investigative data collected by law enforcement officials for purposes of preparing a case against an individual who committed a crime is considered confidential while the investigation is still on-going. In re Expulsion of E.J.W., 632 N.W.2d 775, 779 (Minn. Ct. App. 2001) (citing Minn. Stat. § 13.82, subd. 7). After the investigation is completed, however, the data is no longer confidential. Id.; see also “Access to criminal court records/Arrest records” above.
Search warrants and supporting materials do not become public until after the warrant has been executed and has been filed, together with the return, with the clerk of the court. Neb. Rev. Stat. § 29-817 (Reissue 2016). The Nebraska Supreme Court has held that materials supporting an application for a search warrant may be sealed if necessary to protect confidential informant information, and there is no First Amendment right of public access to an affidavit in support of a search warrant in that context. In re Search Warrant for 3628 V Street, 262 Neb. 77, 628 N.W.2d 272 (2001).
It is unlawful to disclose the fact that a wiretap has been authorized if done to obstruct, impede or prevent the communications interception. Neb. Rev. Stat. § 86-290(1)(e) (Reissue 2016). It is also unlawful to use or disclose the contents of an intercepted communication. Id., § 86-290(1)(c) and (d). Applications made and orders issued allowing the interception of communications shall be sealed by the judge allowing the interception. Neb. Rev. Stat. § 86-293(8)(b) (Reissue 2014).
Access to arrest and search warrants, as noted above in “Access to criminal proceedings/In general,” depends on the stage of the criminal proceeding. See, e.g., In re State (Bowman Search Warrants), 146 N.H. 621 (2001) (“[I]n most pre-indictment criminal investigations, the existence of an investigation itself will provide the ‘overriding consideration or special circumstance, that is, a sufficiently compelling interest, that would justify preventing public access to the records.’”)
Access to wiretaps is governed by N.H. Rev. Stat. Ann. § Ch. 570-A.
Pursuant to NMSA 1978, Section 30-12-9,
“Any investigative or law enforcement officer who, by any means authorized by this act, has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may . . . disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure; [and] . . . [a]ny person who has received, by any means authorized by this act, any information concerning a wire or oral communication, or evidence derived therefrom, intercepted in accordance with the provisions of this act, may disclose the contents of that communication or such derivative evidence while giving testimony in any criminal proceeding in any court of this state or in any grand jury proceeding.”
Outside these constraints, recordings of court ordered wiretaps are not public records unless such recordings are played or utilized in open court in criminal or civil actions. State ex rel. Bingaman v. Brennan, 1982-NMSC-059, ¶ 13, 98 N.M. 109, 111, 645 P.2d 982, 984. To this end, New Mexico courts have denied access to surveillance records when those records were not introduced at the suppression hearing, under seal or otherwise, and the case was disposed of by guilty plea. Id. Physical evidence, documents, wiretaps and video recordings which are not marked as exhibits or received into evidence are not “public records,” nor are items submitted for court examination for in camera inspection. NMSA 1978, §§ 30-12-1 to -14; N.M. R. Evid. 510(c).
By contrast, some courts have held that the warrant process—at least before the warrants have been executed—is outside the presumption of public access to criminal proceedings and court records because of the risk such transparency would pose to ongoing government investigations:
Since the warrant application process has historically not been open to the public and public access “would hinder, rather than facilitate the warrant process and the government's ability to conduct criminal investigations” we conclude that the warrant records sought are not subject to the qualified First Amendment right of access. Even assuming, arguendo, that there is a qualified constitutional right of access to warrant records, such a right would be outweighed if there is substantial probability that disclosure would compromise an ongoing investigation, a circumstance that would justify denial of access in this case.
Newsday, Inc. v. Morgenthau, 4 A.D.3d 162, 163, 771 N.Y.S.2d 639, 640 (2004) (internal citations omitted).
Courts have also denied press access to certain evidence where such access is premised on the court’s warrant and subpoena powers:
The limited 1st Amendment public right of access to criminal proceedings emanates from the long, historical tradition of openness of criminal trials and the major role which public access plays in the proper functioning of the criminal justice process, whereas proceedings to obtain corporeal evidence are creatures of recent judicial creation which derive from the court's power to issue search warrants, a traditionally nonpublic component of the criminal process.
Troy Publ’g. Co. v. Dwyer, 110 A.D.2d 327, 329–30, 494 N.Y.S.2d 537, 539 (3d Dep’t 1985); see also Matter of Death of Manners, 143 Misc. 2d 945, 949, 542 N.Y.S.2d 485, 488 (Suffolk Cty. Ct. 1989).
In North Carolina, arrest and search warrants and related documents (e.g., indictments, criminal summonses, and nontestimonial identification orders) become public records once they have been executed and returned to the Clerk of Court and may be withheld only by a court order to seal. See N.C.G.S. 132-1.4(k). In March 2011, a state superior court issued an order detailing the proper procedures for sealing or redacting arrest or search warrants and related materials. The court said that any request to seal or redact should be made by written motion, by or on behalf of the State's acting attorney (i.e., the Attorney General or a district attorney), and be accompanied by an affidavit signed "by the movant, or by another person involved in the investigation, setting forth detailed grounds for the request sealing [sic]." Because the latter affidavit requires specificity, it should be sealed. All information related to sealing orders must be maintained as public record, and for each sealing order, the public must, at minimum, have access to the following: (1) the identity of the law enforcement agency or official at whose request the search warrant was issued; (2) the identity of the attorney who signed the sealing motion; (3) the identity of the judge who signed the sealing order; (4) the date the order was signed; and (5) the date and time the order expires. Citing In re Investigation into Death of Cooper, 683 S.E.2d 418 (N.C. App. 2009) (see below), and Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir. 1989), the court reiterated that courts should seal arrest or search warrants (and related documents) "only when doing so is essential to preserve higher values and is narrowly tailored to serve that interest." (internal quotations omitted). The court continued: "Interests that may justify sealing, when supported by sufficient evidence that public disclosure of the document would jeopardize such interests, include but are not limited to, the right of the State or defendant to receive a fair trial, the need for law enforcement to maintain the integrity of an ongoing investigation, the privacy rights of innocent third parties, and the protection of witnesses and other third parties." Further, the order said that before ruling on a sealing request, courts should first consider "whether the need for confidentiality can be served by redacting portions of the document or its supporting documentation or by any other less restrictive alternative." The order also provided that court orders to seal or redact "shall expire in thirty days unless a different expiration date is specified in the order." Finally, the superior court order said that courts should treat motions to vacate or modify sealing orders as motions to compel disclosure of public records, which should be given priority and "scheduled as soon a reasonably practicable." Full motion available at http://richmedia.onset.freedom.com/jdn/lhykda-sealingofwarrantsorder.pdf.
In In re Investigation into Death of Cooper, 683 S.E.2d 418 (N.C. App. 2009), the court found no First Amendment right of access to search warrants and related documents in a criminal proceeding. Citing the Fourth Circuit’s opinion in Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir. 1989), the court considered “whether the place and process have historically been open to the press and general public.” Id. at 425. The court held that because “the issuance of search warrants has [historically] not been open to the press and general public,” plaintiffs (media entities) had no qualified First Amendment right of access. Id. However, there is a qualified right of access under the North Carolina Constitution to records and documents in a criminal proceeding. Thus, before sealing a search warrant, the court must make specific findings of fact, stated on the record, that sealing is necessary to serve a compelling interest. It must also consider alternatives to closure and ensure its sealing orders are the least restrictive means of serving that interest.
In In re Baker Investigation, 220 N.C. App. 108, 117, 727 S.E.2d 316, 322 (2012), a judge ordered the release of 22 search warrants that originally were sealed but, by operation of a local administrative order, no longer should be sealed. The State appealed the trial court’s ruling, and the Court of Appeals ruled that the release was proper.
The following records are not accessible by the media or the public: (1) affidavits or sworn testimony and records of proceedings in support of the issuance of a search or arrest warrant pending the return of the warrant; (2) information in a complaint and associated arrest or search warrant to the extent confidentiality is ordered by the court under N.D.C.C. §§ 29-05-32 or 29-29-22.
Ohio does not recognize a First Amendment right to access search warrant materials, but it does recognize a common law right. This common law right can be overcome; for example, when release would interfere with the ongoing criminal investigation. See In re Search of Fair Finance, Fair Fin., Obsidian Enters., No. 5:09 MC 117, 2010 WL 3210975 (N.D. Ohio Aug. 10, 2010); In Re Search Warrants for Nat’l Builders Corp., 833 F. Supp. 644 (N.D. Ohio 1993).
If a search warrant, affidavit or return is a confidential law enforcement investigatory record, then it may be withheld from public access. R.C. § 149.43(A)(2). Warrant materials during pre-indictment investigations are also not public records. See Dream Fields, LLC v. Bogart, 885 N.E.2d 978, 979 (Ohio Ct. App. 2008) (citation omitted).
Search warrants and supporting affidavits are presumptively open, and can be sealed from public access only if there is a compelling need, less restrictive means (such as redaction) are considered, and access is denied for no more than a reasonable time. Sloan v. Sprouse, 1998 OK CR 56, 968 P.2d 1254.
The Supreme Court has not ruled on the public right of access to applications for search warrants, supporting affidavits, or returns.
Federal appellate courts disagree about whether the public has a right of access to these documents. See, e.g., Times Mirror Co. v. United States, 873 F.2d 1210, 1211 (9th Cir. 1989) (finding that “members of the public have no right of access to search warrant materials while a pre-indictment investigation is under way”); In re Application and Affidavit for a Search Warrant, 923 F.2d 324, 326 (4th Cir. 1991) (holding that “a newspaper has a common law right of access to affidavits supporting search warrants, although not a First Amendment right of access”); In re Search Warrant for Secretarial Area-Gunn, 855 F.2d 569, 573 (8th Cir. 1988) (finding that “the [F]irst [A]mendment right of public access does extend to the documents filed in support of search warrant applications”). However, even courts recognizing a presumption of access to search warrant materials will often find the need to protect the integrity of an ongoing investigation to override the presumption of access. 855 F.2d at 574.
The Supreme Court has not ruled on public access to wiretap materials. The Seventh Circuit noted, however, that the First Amendment permits limiting public access to wiretap materials “unless and until admitted into evidence at a trial or other public proceeding.” United States v. Dorfman, 690 F.2d 1230, 1234 (7th Cir. 1982).
The D.C. Circuit has recognized that electronic surveillance orders and related materials entered with the court are judicial records, and the common-law presumption of access applies to warrants issued under the Stored Communications Act and orders issued under § 2703(d) of that Act. In re Leopold, 964 F.3d 1121, 1131 (D.C. Cir. 2020). The court also held that while Congress displaced the common-law presumption of access with respect to orders issued under the Pen Register Act – which allows the government to collect metadata regarding phone calls, emails, and text messages – courts must still apply a six-factor balancing test to determine whether continued sealing is appropriate, albeit “without a thumb on the scale” in favor of access. Id. at 1130–31.
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 Rhode Island Supreme Court has not directly addressed this question.
As Rhode Island courts would look to federal case law in such circumstances, the U. S. District Court for the District of Rhode Island concluded that the public does not have a First Amendment right of access to search warrant documents but does have a qualified common law right of access. United States v. Cianci, 175 F. Supp. 2d 194, 199-201 (D.R.I. 2001). The court applied the test from Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986), which states that a qualified First Amendment right applies when “the place and process have historically been open to the press and general public,” and where “public access plays a significant positive role in the functioning of the particular process in question.” United States v. Cianci, 175 F. Supp. 2d at 199-201. The court concluded that the test is typically not satisfied with regard to search warrants and supporting affidavits since “historically, proceedings to obtain search warrants have been conducted ex parte and have not been open to the public.” Id. at 200. It went on to explain that:
[The fact that search warrants and supporting affidavits are often filed with the district court without seal . . . merely describes a practice in cases where the government presumably believes secrecy is unnecessary; it does not establish that the First Amendment requires that warrant materials be filed without seal.
Id. (quoting Times Mirror Co. v. United States, 873 F.2d 1210, 1217 (9th Cir. 1989)).
However, the court went on to recognize that the public has “a qualified common law right of access to judicial records, in general.” Id. (citing Nixon v. Warner Communications, 435 U.S. 589, 597-99 (1978)). “Since Federal Rule of Criminal Procedure 41(g) requires that warrant documents be filed with the clerk of court, and since those documents become part of the court file they, clearly, are judicial records. Id. (citation omitted). “[T]he decision to grant or deny access is ‘left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.’” Id. (quoting Baltimore Sun Co. v. Goetz, 886 F.2d 60, 64 (4th Cir. 1989)).
Warrants, wiretaps and other enforcement and investigative records are available through a South Carolina Freedom of Information Act request. The records, assuming they exist and are responsive to the request, are discoverable, but the law enforcement agency may redact information that would disclose the contents of intercepted wire or other electronic communication not already disclosed at trial, information that would endanger the life or safety of any individual if released, or information that would disclose current techniques or procedures for law enforcement investigations, among other reasons provided. S.C. Code Ann. § 30-4-40(3).
Affidavits, warrants, return and inventory are open records, although under special circumstances affidavits may be kept confidential. See S.D. Codified Laws § 23A-35-4.1. Wiretap applications, orders and recordings will generally be disclosed only for “good cause.” S.D. Codified Laws § 23A-35A-12, 13.
Although there is no Tennessee case law on point, the Tennessee Supreme Court has noted that warrants of arrest “are official judicial records of proceedings in a criminal case.” State v. Woodall, 729 S.W.2d 91, 94 (Tenn. 1987). In Tennessee, there is a strong presumption of access to criminal proceedings and records. “The Tennessee Supreme Court has recognized a qualified right of the public, founded in the common law and the First Amendment to the United States Constitution to attend judicial proceedings and to examine the documents generated in those proceedings.” Knoxville News-Sentinel v. Huskey, 982 S.W.2d 359, 362 (Tenn. Crim. App. 1998) (citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996); see also Kocher v. Bearden, 546 S.W.3d 78, 85 (Tenn. Ct. App. 2017) (same). Therefore, warrants of arrest would also be subject to a presumption of openness.
Ordinarily, an affidavit accompanying a search warrant application becomes a public record once the warrant is executed. See Tex. Code Crim. Proc. Ann. art. 18.01(b). Generally, there are no exceptions to this rule. See Houston Chronicle Publ’g Co. v. Edwards, 956 S.W.2d 813, 817 (Tex. App.—Beaumont 1997, no pet.). However, courts may seal search warrant affidavits for 31 days, subject to a 30-day extension, in felony proceedings where the state’s attorney shows that public disclosure would contravene a compelling state interest by (1) threatening the safety of a witness or the destruction of evidence; or (2) disclosing information from an authorized wiretap that is still in effect. See Tex. Code Crim. Proc. Ann. art. 18.011. These rules also apply to warrants targeting electronic data stored in the cloud by an electronic communications service provider. See id. art. 18B.354.
Arrest warrants are public records that must be publicly disclosed upon execution. See id. art. 15.26.
Applications and orders issued to authorize the use of Pen Registers, Esn Readers, Trap and trace devices, and similar equipment must be sealed. See id. art. 18B.105. Similarly, recordings of wiretaps made during the period of a court-authorized interception order must be sealed upon the expiry of that order. See id. art. 18A.453.
The Utah Supreme Court has held that, pursuant to the test set forth by the U.S. Supreme Court in Press-Enterprise Company v. Superior Court of California, 478 U.S. 1, 9 (1986), “[p]retrial documents such as affidavits in support of search warrants, probable cause statements, and witness subpoenas are generally open for public inspection upon filing and return.” State v. Archuleta, 857 P.2d 234, 237-38 (Utah 1993). “[A]lthough the process of issuing search warrants has traditionally not been conducted in an open fashion, search warrant applications and receipts are routinely filed with the clerk of court without seal.” Id. at 238 (internal quotations omitted) (alteration in original). The Archuleta court specifically recognized the “general right to inspect and copy public records and documents under the common law” and that the “general practice in Utah and the common law both reveal that there is a tradition of accessibility to such documents.” Id. (internal quotations omitted).
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). See also In re Vsp-Tk/1-16-18 Shooting Gray TV, 2019 VT 47 ¶¶ 31-32 (July 19, 2019) (recognizing standard applicable to sealing decisions regarding search warrants and extending them to inquest materials).
Recently, the Vermont Supreme Court rejected the State’s attempt to infer a categorical prohibition against disclosure of records relating to inquest proceedings because they are similar to other enumerated exceptions in the Rules regarding search warrants or affidavits of probable cause. Id. at ¶¶ 23-25.
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).
Pursuant to the Virginia Code, an affidavit in support of the search warrant must be filed with the clerk’s office within seven days of the warrant’s issuance “and shall at all times be subject to inspection by the public after the warrant that is the subject of the affidavit has been executed or 15 days after issuance of the warrant, whichever is earlier . . . [H]owever, such affidavit, any warrant issued pursuant thereto, any return made thereon, and any order sealing the affidavit, warrant, or return may be temporarily sealed for a specific period of time by the appropriate court upon application of the attorney for the Commonwealth for good cause shown in an ex parte hearing.” See Va. Code § 19.2-54.
Executed search warrants and accompanying affidavits are presumed open unless a law enforcement or privacy interest amounts to “good cause” for closure under the common law. See Cowles Publ’g Co. v. Murphy, 96 Wn.2d 584, 637 P.2d 966 (1981); Washington v. Gutierrez, 1993 WL 568713 (Wash. Super. Ct. 1993). However, the public does not have a right to access a search warrant or accompanying affidavit in an unfiled criminal case. Seattle Times Co. v. Eberharter, 105 Wn.2d 144, 157, 713 P.2d 710 (1986) (reasoning that public interest in discovering and capturing the perpetrator of a criminal act outweighed public interest in affidavit accompanying search warrant in unfiled criminal case).
While there are no West Virginia cases on point, warrants, wiretaps and the like are public records subject to the disclosure provisions of the West Virginia Freedom of Information Act because they are not required to be kept confidential by statute. However, depending on the timing and circumstances, such records may be exempt from disclosure under the West Virginia FOIA’s law enforcement exemption. W. Va. Freedom of Information Act, W. Va. Code §§ 29B-1-1 to -6 (2001).