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16. Arrest/search warrants and supporting affidavits

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  • California

    Search warrants are judicial records by statute.  Cal. Pen. Code § 1534(a). After a search warrant has been executed and returned, or 10 days has lapsed since its execution, all “documents and records of the court relating to the [search] warrant . . . shall be open to the public as a judicial record.”  Id.  Because warrants and related records are judicial records, the CPRA is inapplicable.

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  • District of Columbia

    Not specifically addressed.

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  • Georgia

    The Act has no special exception for arrest/search warrants and supporting affidavits.

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  • Iowa

    Information filed with the court for the purpose of securing an arrest warrant is confidential until the arrest is made and the warrant is returned. “However, during the period of confidentiality in subsection 1, the information in the record may be disseminated, without court order, during the course of official duties to the following persons:

    a. A peace officer, or any other employee of a law enforcement agency if allowed access pursuant to section 692.14 and if authorized in writing by the head of the agency.

    b. An employee of the county attorney's office.

    c. A judicial officer or other court employees.

    d. An employee of the department of corrections or judicial district department of correctional services, if authorized by the director of the department of corrections.”

    Iowa Code § 804.29.

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  • Kansas

    Such documents are not available under the Kansas Open Records Act, but may be requested and disclosed at the court’s discretion pursuant to K.S.A. 22-2302(c) and K.S.A. 22-2502(e).  When a request for a probable cause affidavit in support of a search or arrest warrant is submitted by a member of the public or media, the parties have the opportunity to file motions, under seal, concurring with or opposing such requests.  K.S.A. 22-2302(c)(3)(B); K.S.A. 22-2502(e)(3)(B).  A court is charged with determining whether any of the bases for seal advanced by the parties are sufficient for the court to find that sealing the probable cause affidavit in its entirety is “necessary to prevent public disclosure” of information it contains because that information “would” interfere with one of the rights set forth in K.S.A. 22-2302(c).  A court can deny access if it finds that disclosure would:

    (A) jeopardize the physical, mental or emotional safety or well-being of a victim, witness, confidential source or undercover agent, or cause the destruction of evidence;

    (B) reveal information obtained from a court-ordered wiretap or from a search warrant for a tracking device that has not expired;

    (C) interfere with any prospective law enforcement action, criminal investigation or prosecution;

    (D) reveal the identity of any confidential source or undercover agent;

    (E) reveal confidential investigative techniques or procedures not known to the general public;

    (F) endanger the life or physical safety of any person;

    (G) reveal the name, address, telephone number or any other information which specifically and individually identifies the victim of any sexual offense described in article 35 of chapter 21 of the Kansas Statutes Annotated, prior to their repeal, or article 55 of chapter 21 of the Kansas Statutes Annotated or K.S.A. 2018 Supp. 21-6419 through 21-6422, and amendments thereto;

    (H) reveal the name of any minor;

    (I) reveal any date of birth, personal or business telephone number, driver's license number, nondriver's identification number, social security number, employee identification number, taxpayer identification number, vehicle identification number or financial account information; or

    (J) constitute a clearly unwarranted invasion of personal privacy. As used in this subparagraph, "clearly unwarranted invasion of personal privacy" means revealing information that would be highly offensive to a reasonable person and is totally unrelated to the alleged crime that resulted in the issuance of the search warrant, including information totally unrelated to the alleged crime that may pose a risk to a person or property and is not of legitimate concern to the public. The provisions of this subparagraph shall only be used to redact and shall not be used to seal affidavits or sworn testimony.

    The same framework applies to requests for search warrants under K.S.A. 22-2502.

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  • New Mexico

    Presumably public, but no reported cases. Conceivably, some may be confidential due to the content.

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  • Vermont

    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).

    The Vermont judiciary created a separate set of rules—the Vermont Rules for Public Access to Court Records—which govern the rights of access by the public to judicial records.  See Vt. Pub. Acc. Ct. Rec. Rule 1; see also State v. Whitney, 2005 VT 102, ¶ 9, 885 A.2d 1200, 1203 (Vt. 2005).  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).

    The Vermont Supreme Court has clarified, however, that “arrest records are not records dealing with the investigation and detection of crime, but rather are the product of such an investigation.”  Caledonian-Record Publ’g Co. v. Walton, 154 Vt. 15, 23 (1990).  Recently, the Vermont Supreme Court held that “the public has a right to access the affidavit of probable cause because it is an agency record that falls outside of the [Public Access to Court] Rules and does not qualify as confidential under the PRA.”  Oblak v. Univ. of Vt. Police Servs., 2019 VT 56, ¶ 16 (Vt. 2019). The Court found that the fact that the police agency filed the record with the court did not change its status as an agency record.  Id. at ¶ 12.

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  • Wisconsin

    Arrest and search warrants are available for public inspection, subject to the balancing test, but usually only after charges have been filed, or the investigation is otherwise closed.

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