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A&A: Can law enforcement seal a search warrant that gathered evidence on a civil case?

Q: 1) Can a law enforcement agency use a search warrant to gather evidence in an anticipated civil case?

2) Can that same agency seal a search warrant used solely to acquire information for an expected civil case?

3) Where can I find the law on this, so that I may reference it in conversations with this agency?

Thank you very much.

A: Although your first question is beyond the scope of our expertise (which is focused on First Amendment issues), I can give you some information on the second and third questions.

Under California’s Penal Code, “A search warrant shall be executed and returned within 10 days after date of issuance.

A warrant executed within the 10-day period shall be deemed to have been timely executed and no further showing of timeliness need be made. After the expiration of 10 days, the warrant, unless executed, is void.

The 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.” Penal Code § 1534 (emphasis added).

As an initial matter — and this issue does bleed over into your first question — one would imagine that the Penal Code provision is limited to search warrants in criminal cases.

It is not immediately apparent why the government could invoke its police powers in connection with a civil case. Again, however, this issue goes beyond our legal expertise.

Next, assuming that Penal Code § 1534 properly applied to the search warrant at issue, the warrant and related records would not be subject to disclosure until the execution and return of the warrant or until 10 days after the issuance of the warrant.

After that, the court should have to find the stringent standards of California’s sealing rules satisfied in order to refuse to disclose the records. Because the records would be “judicial record[s],” as specified in Section 1534, the agency should not be able to unilaterally seal the records. Instead, the presumption under the federal and California constitutions and California’s rules of courts should kick in, and the records should be withheld from the public only if the court follows specific procedures, as outlined below.

In this state, there is a constitutional right of access to court records, including search warrant records.

“Both the federal (First Amendment to the United States Constitution) and the state (article I, section 2(a), California Constitution) constitutions provide broad access rights to judicial hearings and records.” Copley Press, Inc. v. Superior Court, 6 Cal. App. 4th 106, 111 (1992).

This right of access applies to all “the various documents filed in or received by the court” in criminal and civil cases, id. at 113, including search warrants and supporting affidavits. Alarcon v. Murphy, 201 Cal. App. 3d 1, 6 (1988)

(“an affidavit supporting the issuance of arrest and search warrants – part of a court file – is a public record”); Penal Code § 1534 (after execution of the warrant or expiration of a 10-day waiting period, “[t]he documents and records of the court relating to the search warrant … shall be open to the public as a judicial record”); California Criminal Law: Proc. & Prac. § 12.9 at 272 (“The arrest warrant is available to the public in the court where it is filed because it is a judicial record.”).

The Supreme Court confirmed the right of access to court records in civil and criminal cases, NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 1209 n.25 (1999), and it is now mandated by Rule of Court 2.550.

Courts have recognized a constitutional right of access to search warrant affidavits precisely because “[s]ociety has an understandable interest not only in the administration of criminal trials, but also in law enforcement systems and how well they work.”

In re Application & Affidavit for a Search Warrant, 923 F.2d 324, 331 (4th Cir. 1991). While most members of the public cannot travel to the court to review the records for themselves, their constitutional right to monitor the proceedings in this case is protected by the press, which functions as “surrogates for the public” through their news reports about the case and the records at issue. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572-73 (1980).

California’s Rules of Court prohibit sealing of court records “based solely upon the agreement or stipulation of the parties,” Cal. R. Ct. 2.551(a), and require that any “party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” Cal. R. Ct. 2.551(b)(1). The First Amendment imposes the same requirements. NBC Subsidiary, 20 Cal. 4th at 1217-18.

Moreover, the First Amendment and Rules of Court provide that the court may order that a record be filed under seal only if it “expressly find[s]” that:

1. There exists an overriding interest that overcomes the right of public access to the record;
2. The overriding interest supports sealing the record;
3. A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;
4. The proposed sealing is narrowly tailored; and
5. No less restrictive means exist to achieve the overriding interest.

NBC Subsidiary, 20 Cal. 4th at 1217-18; Press-Enterprise v. Superior Court, 464 U.S. 501, 510 (1984); Cal. R. Ct. 2.550(d). In addition to “specifically stat[ing] the facts that support the findings,” a sealing order must “[d]irect the sealing of only those documents and pages, or if reasonably practicable, portions of those documents and pages, that contain the material that needs to be placed under seal. All other portions of each document or page must be included in the public file.” Cal. R. Ct. 2.550(e)(1).

If the records at issue have, in fact, been sealed by the court, the process for unsealing the records is set forth in the Rule of Court 2.551(h):

(1) A sealed record must not be unsealed except on order of the court.

(2) A party or member of the public may move, apply, or petition, or the court on its own motion may move, to unseal a record. Notice of any motion, application, or petition to unseal must be filed and served on all parties in the case. The motion, application, or petition and any opposition, reply, and supporting documents must be filed in a public redacted version and a sealed complete version if necessary to comply with (c).

(3) If the court proposes to order a record unsealed on its own motion, the court must mail notice to the parties stating the reason therefor. Any party may serve and file an opposition within 10 days after the notice is mailed or within such time as the court specifies. Any other party may file a response within 5 days after the filing of an opposition.

(4) In determining whether to unseal a record, the court must consider the matters addressed in rule 2.550(c)-(e).

(5) The order unsealing a record must state whether the record is unsealed entirely or in part. If the court’s order unseals only part of the record or unseals the record only as to certain persons, the order must specify the particular records that are unsealed, the particular persons who may have access to the record, or both. If, in addition to the records in the envelope or container, the court has previously ordered the sealing order, the register of actions, or any other court records relating to the case to be sealed, the unsealing order must state whether these additional records are unsealed.

See http://www.courts.ca.gov/7260.htm?title=two for this Rule of Court.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

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