Thursday, January 30, 2014 | No comments

Increased Transparency for Search Warrants Considered by Utah Court System

By Josh Daniels

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“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” —4th Amendment, United States Constitution

Search warrants are critical documents that must be open to public oversight in order to ensure the protection of fundamental Fourth Amendment protected rights.

At the urging of journalists, the Utah court system has recently proposed a change in rules that would end its previous practice of sealing certain search warrants indefinitely. Under the current Utah Rules of Criminal Procedure, rule 40 ensures search warrants are generally sealed for the first 20 days after which they become public. However, the rule also allows sealed search warrants to remain sealed by an application that will maintain the seal indefinitely until the court decides to unseal the warrant for good cause. This unsealing may only be requested by a party who has standing. Thus, warrants that have been sealed longer than necessary will likely remain indefinitely inaccessible to the public.

The proposed rule change would limit warrant sealing periods to six month intervals and then place the burden for continuing the seal for a warrant on those individuals with standing in the court, instead of the other way around. The general rule for a search warrant in Utah would be that the warrant becomes public automatically after 20 days. Since search warrants may include sensitive investigation information, the ability to seal a search warrant can be a useful tool for law enforcement during an active investigation. This has been used effectively in Utah during active murder investigations.

However, because the request to seal a warrant places the warrant under seal indefinitely, such warrants never become public without a specific request by a party that has legal standing. This weakness in the rules creates a contradictory posture in philosophy about search warrants. On the one hand, the rules treat the warrant—the exercise of judicial authority and the government arguments for probable cause—as public information after a reasonable time. But the indefinite seal treats the same information as hidden from the public without a specific request by a party with legal standing. An indefinite seal effectively extinguishes the right of the public to ensure justice is being administered fairly and removes a key element of judicial and police power from public accountability.

Prosecutors agree that such warrants should be disclosed to the public at an appropriate time after an investigation. Tim Taylor, chief deputy attorney in Utah County, was quoted in response to the sealing of search warrants in the murder investigation of a university professor as having “no problem” disclosing warrants after an arrest.

We agree that search warrants are, and should remain, public documents. It is critical to the public interest to ensure that such a significant judicial and police power remains open to public oversight. The Fourth Amendment—along with a similar provision in Utah’s Constitution—requires that the authority to search one’s private property be limited to cases where there is probable cause to do so. If the administration of justice is open, fair, and equal to all, that probable cause must stand up both under judicial and public scrutiny. We believe that all search warrants should be made public and only sealed under absolute necessity in active investigations after significant judicial scrutiny. However, this rule change is a move in the right direction that we support.

Another concern is the selective sealing (or selective publication) of search warrants. Selective publication of a warrant can allow the premature or unfounded accusations of investigators to prejudice the public in a given case against the accused. For example, some note that in the Matthew Stewart case selective publication of warrants may have led to unduly discrediting Stewart in the media. The publication or sealing of search warrants should not be abused in this way.

The Utah court system publishes proposed changes to rules for public comment. The notice and comment rule making process for changes in Utah court rules require a 45 day comment period with final adoption voted on by the Utah Supreme Court. New rules take effect 60 days after adoption.

Comments can be submitted online here and must include a name and email address.

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About the Author

Josh Daniels is a policy advisor for the Libertas Institute. He graduated with a B.A. in Political Science from Brigham Young University and with a J.D. from the University of Houston Law Center. Previously, he worked for three years as an aide to US Congressman Pete Olson and served for eight years in the United States Marine Corps.


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