D. Warrants, wiretaps and related materials
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).
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).
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. 311 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).
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.
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; recent case law suggests, however, that the public does 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).
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.
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).
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.
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).
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). 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).