16. Arrest/search warrants and supporting affidavits

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.

Not specifically addressed.

See Rose v. D’Allessandro, 380 So. 2d 419 (Fla. 1980) (complaints and affidavits received by a state attorney in discharge of his investigatory duties are subject to terms of statute relating to criminal investigative and intelligence information).

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

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.

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.

On April 8, 2021, the Shawnee County District Court ordered disclosure of the affidavit related to charges filed against former Senate Majority Leader Gene Suellentrop on April 27, 2021.  The affidavit alleged that he drove the wrong way on Interstate 70 in the week hours of March 16, 2021, and that after he was stopped by law enforcement his blood alcohol level was 0.17, over twice the legal limit.

In order to obtain the affidavit, the “news media filed motions with the court seeking the document’s release.”  The judge ordered disclosure even though Suellentrop argued “that the affidavits should be sealed for the following statutory reasons: (1) disclosure of the affidavits would endanger the life or physical safety of the defendant; (2) disclosure of the affidavits would jeopardize the physical, mental or emotional safety of the defendant; and (3) the affidavits contain information that, ‘upon the Defendant being found not guilty, would constitute an unwarranted invasion of personal privacy.’”  State v. Suellentrop, Shawnee County District Court Case No. 2021-CR-000582, Order Pursuant to K.S.A. 22-2302, April 8, 2021.  The court rejected each contention, first finding that redactions would be sufficient to address any concerns that disclosure would endanger anyone, and then that neither of Suellentrop’s remaining contentions were authorized under the statute.  Id.  The court found that “[a]ll defendants are innocent unless and until proven guilty; [] disclosure of affidavits which contain specific allegations regarding the crime charged always poses the risk of unwanted publicity and damage to a defendant,” but that is not a valid justification for sealing documents under K.S.A 22-2302(c)(4).  Id.  In releasing the Suellentrop affidavit, the Shawnee County District recognized that even though disclosure of the affidavit was highly likely to produce immense pretrial publicity, any reasons advanced by the proponents to seal that affidavit were insufficient to overcome the public’s right to access.

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

Access to arrest and search warrants and supporting affidavits is controlled by the Intelligence and Investigative Record Information Act. 16 M.R.S.A. §§ 801-809.

 

Access to warrants and affidavits filed with the courts is subject to Administrative Order JB-05-20, “Public Information and Confidentiality,” which 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.

N.J.S.A. 47:1A-1.1 provides, in part:

A government record shall not include the following information which is deemed to be confidential for the purposes of P.L.1963, c.73 (C.47:1A-1 et seq.) as amended and supplemented:

“Criminal investigatory record” means a record which is not required by law to be made, maintained or kept on file that is held by a law enforcement agency which pertains to any criminal investigation or related civil enforcement proceeding.

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

Arrest and search warrants are available for public inspection and copying. 51 O.S. § 24A.8(6).

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.

The Act does not address this.  Search warrant procedures are governed by the criminal procedure title of the Code of Virginia.  See Va. Code Ann. § 19.2-54, governing public access and temporary sealing of search warrant materials.

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.