Sacramento Valley Mirror

7/30/03

Valley Mirror files for unsealing of search warrants

WILLOWS - A careful examination of search warrant files in the Glenn County Superior Court here shows that files are being sealed in violation of the California Law and Rules of Court.

Valley Mirror Publisher Tim Crews Thursday filed a petition in Superior Court for unsealing of search warrants and search warrant affidavits.

"Whenever we attempt to do a thorough job of covering complex drug cases, such as that of military veteran Roy Meredith, we've found that affidavits in support of search have been sealed," Mr. Crews explained.

"The problem with this is that the material must be public and, if it is to be sealed, it can only be sealed on noticed motion before the court. Then, to seal the files a specific finding must be issued. Local law enforcement has simply been asking that things be sealed and they've gone into the dark. It is all very Third World," he said.

"Without sunshine, there is no way to know if things are being done properly. Serious allegations have been made regarding some drug cases, but in any event, the process is supposed to be open."

Saying that his small twice-weekly cannot expend money on another legal fight at this time, Mr. Crews filed the action himself.

Here are high points from the petition:

PLEASE TAKE NOTICE that on AUGUST 22, 2003, at 1:00 P.M., or as soon thereafter as TIMOTHY F. CREWS may be heard in the above-entitled Court, located at 526 West Sycamore, Willows, California, The Sacramento Valley Mirror ("The Mirror") will and hereby does ask the court to order unsealing all search warrants that have been executed, and their supporting affidavits and returns that have been sealed, and are filed in Glenn County Superior Court or have been removed after sealing to other locations.

Timothy F. Crews, editor and publisher of The Sacramento Valley Mirror is informed that the Glenn County Sheriff's Department, The Tehama and Glenn Methamphetamine Enforcement Team ("TAGMET") and others executed the search warrants as part of routine course of business. The warrants and/or their affidavits have been sealed in violation of California Penal Code §1534(a); the United States Constitution, the California Constitution, Article I, § 2(a), California Code of Civil Procedure Section 1904, California Rule of Court 243.1, and the common law.

Warrants or affidavits the petitioner asks a court order to unseal include, but are not limited to:
9-4-01-O-1 for the residence located at 640 Holly Street, Willows and the persons of Gary Marshall Thurman, Jerry Burl Heidrich, and James Clyde Brock, sealed Sept. 4, 2001, by Honorable Judge Angus Saint-Evens (Exhibit A); 9-24-01-W-1, for the residence located at 4463 County Road N, Orland, and for the person of Roy Eugene Meredith, sealed Sept. 24, 2001 by Honorable Judge Angus Saint-Evens (Exhibit B); 3-21-03-W-1, sealed March 21, 2003 by Honorable Judge Angus Saint-Evens (Exhibit C); 6-3-3-O-1, for the premises located at 1232 Railroad Avenue, Orland, sealed June 3, 2003 by Honorable Judge Angus Saint-Evens (Exhibit D); 6-19-2003-W-1 for the premises located at 4533 County Road 99W, Orland, sealed June 19, 2003, by Honorable Judge Donald Cole Byrd (Exhibit E); 6-27-2003-W-1, for the premises located at 73 East Walker, # 9, Orland, sealed June 27, 2003, by Honorable Judge Donald Cole Byrd (Exhibit F).

The affidavits in support of the above warrants have been sealed "by request" and motions have not been sought not heard seeking such secreting. Further, there are no on-the-record findings as to the need for sealing and the statutorily mandated minimal redaction of a portion of the affidavits rather than the wholesale secreting that has been "requested" and granted.

None of the "Requests for an Order Sealing the Affidavit or Portion of the Affidavit" are signed.

The Mirror asks the Court to unseal all search warrants in the Court's possession, as well as any applications and supporting affidavits, the returns, any motions or orders related to sealing the warrants, lists of the inventory seized during the search or searches, and any motions or orders related to the admission or submission of items seized pursuant to the warrant or warrants. This petition is made on the following independent grounds:

First, pursuant to the express provisions of California Penal Code § 1534(a), executed and returned a search warrant materials "shall be open to the public as a judicial record."

Second, pursuant to the United States Constitution, the California Constitution, Article I, §2(a), California Penal Code Second 1534(a), California Code of Civil Procedure Section 1904, California Rule of Court 243.1, and the common law, judicial records are presumptively open, and cannot be sealed absent specific, on-the-record findings that there is an overriding interest that overcomes the right of public access to the records. The Mirror is informed that no such findings have been made by the Court. Indeed, The Mirror has learned by examination that no motion for sealing the search warrant materials was filed. There have not been findings that support the sealing of the search warrants in this case.

Accordingly, The Mirror respectfully prays requests this Court:
· Make available to the public all materials concerning the search warrants, and any other information concerning executed search warrants filed in Glenn County within 10 days;
· Ensure that all further sealing comply with California Rule of Court 243.1 and other applicable law;
· And provide whatever other relief the Court finds just and proper.

SUMMARY OF ARGUMENT

The Mirror seeks an immediate Order from this Court unsealing all court records related to the above enumerated search warrants including all supporting affidavits, inventories, returns and records that have been filed under seal in Glenn County Superior Court, and any related executed and returned warrants. The Mirror first learned of this routine sealing in mid-June 2003.

These records must be immediately unsealed pursuant to Penal Code Section 1534(a) "California Penal Code §1534(a)," which requires that executed search warrants and related documents "shall be open to the public as a judicial record."

The Mirror seeks these court records on the further ground that they are subject to the public's and press' First Amendment right of access, and cannot be sealed unless the party advocating sealing meets the rigorous tests set forth by the United States Supreme Court and the California Supreme Court. See Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984) (Press-Enterprise I) "Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (Press-Enterprise I)"; NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178, 1218-19 (1999), "NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 20 Cal. 4th 1178 (1999)."

Under these court decisions and California Rule of Court 243.1 a court may not seal a court record unless it makes on-the-record findings that there is an overriding interest that overcomes the right of public access to the records, and that the sealing is narrowly tailored to serve the overriding interest.

Moreover, California Rule of Court 243.2 requires that a party advocating sealing "must file a noticed motion" setting forth the law and the facts to justify a sealing order.

The public and the press must be given an opportunity to respond and be heard on the issue of sealing. See, e.g., Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 610 n.25 (1982) ("media and public 'must be given an opportunity to be heard on the issue of their exclusion'").
Timothy Crews has personally searched court records for noticed motions asking sealing and is not aware of any noticed motion in connection with the aforementioned listed cases. Indeed, none is available in the search warrant files.

During June and July, Timothy Crews, petitioner, made repeated visits to the Glenn County Superior Court and examined the search warrant logs, search warrant folders noted, and many other folders not noted. An abundance of search warrant applications were sealed by "request."
In one case, warrant 6-19-03-W-1, Judge Byrd ordered "the following portion of the search warrant affidavit be sealed and kept in the custody of the Bureau of Narcotic Enforcement, and made part of this public record until further order of this court or any competent court." The public's right of access to pretrial court documents is critical. Here, again, the Court should not sanction routine, unjustified secrecy.

For these reasons, The Mirror respectfully requests this Court to unseal the Search Warrants and all related materials immediately.

POINTS AND AUTHORITIES

Penal Code Section 1534(a) Mandates That All Materials Relating To The Search Warrants Issued and Returned Must Be Made Public.
Penal Code Section 1534(a) provides that all "documents and records of the court relating to [a search] warrant shall be open to the public as a judicial record." (Emphasis added.) Such materials must be released either immediately after the warrant is executed or ten days after it is issued. Cal. Penal Code §1534(a) does not qualify or limit the public's right of access to those materials in any way. See PSG Geothermal Services Co. v. Superior Court, 25 Cal. App. 4th 1697, 1713 (1994) ("[t]here is no exception in the statute for instances where the search is used to further an ongoing investigation"). Indeed, courts to date have recognized only one exception to Section 1534(a), specifically, that search warrant materials may be sealed or redacted to protect the identity of a confidential informant. But the statute does not hold that the entire affidavit made be sealed without first considering redacting identifying material or, in the alternate, finding that the informant is no longer at risk of being identified. Assuming, for the sake of argument, that the requested materials contained the name of a confidential informant, which our experience indicates is highly unlikely, the appropriate remedy would be to redact the identifying information, not to keep all of the materials under seal. See "PSG" Geothermal, 25 Cal. App. 4th at 1714-15 (order sealing entire search warrant affidavit was "overbroad" where redaction of a single sentence would have protected informant's identity); "Hobbs," 7 Cal. 4th at 972 n.7 (same).

The First Amendment Right Of Access To Court Records Also Requires Disclosure Of The Search Warrant Materials.
The Materials Are Subject To The Public's Right Of Access To Court Records.
In 1999, the California Supreme Court issued a unanimous decision in which it traced the evolution of the First Amendment right of access and reaffirmed that court proceedings and documents generally must be open to the public. "NBC" Subsidiary, 20 Cal. 4th 1198-1208, 1212-13 & n.25. Although "NBC" Subsidiary involved access to civil court proceedings, the Court cited with approval numerous decisions upholding a First Amendment "presumption of access [to any] documents or records " [that] are filed with the court or are used in a judicial proceeding." Id. at 1208 n.25. Following "NBC" Subsidiary, the Judicial Council enacted Rule of Court 243.1, which reiterates that "[u]nless confidentiality is required by law, court records are presumed to be open." Cal. Rule of Ct. 243.1(c) The Rules of Court also broadly define court records to include "all or any portion of any document, paper, exhibit, transcript, or other thing filed or lodged with the court."
The materials relating to the requested search warrants in this case plainly are subject to the public's right of access. They have been filed with the Court, and indisputably fall within Rule 243.1's definition of court records. Moreover, Penal Code Section 1534(a) expressly defines search warrant materials as "judicial record[s]." As such, they presumptively should be open to the public.

The Public's Presumptive Right Of Access Cannot Be Overcome.
In "NBC" Subsidiary, the California Supreme Court declared that a court cannot close a judicial proceeding or seal a court record without first finding:

(1) that an overriding interest supports sealing;
(2) that a substantial probability exists that the interest will be prejudiced absent sealing;
(3) that the sealing is narrowly tailored to serve the overriding interest;
(4) that no less restrictive means exist to achieve the identified overriding interest. 20 Cal. 4th at 1218-19.

California Rule of Court 243.1(d) adopts virtually the identical standard. This strict sealing test is consistent with previous decisions from federal and state courts. See, e.g., "Associated Press" v. District Court, 705 F.2d 1143, 1145 (1983) (public's right of access to documents filed in conjunction with criminal proceeding can be overcome only by an affirmative showing that the sealing of documents is "strictly and inescapably necessary" to promote competing interest of the highest order); Estate of Hearst, 67 Cal. App. 3d 777, 785 (1977) (sealing orders can be justified only in "exceptional" circumstances where sealing is necessary to promote a "compelling" interest).

Importantly, as reflected in California Rule of Court 243.2(b), it is the party advocating secrecy that bears the burden of demonstrating the exceptional circumstances that justify sealing. As the court explained in Mary R. v. B. & R. Corp., 149 Cal. App. 3d 308, 317 (1983) "[s]ince court records are public records, the burden rests on the party seeking to deny public access to those records to establish compelling reasons why and to what extent those records should be made private."

The unauthorized sealing of search warrants and related information without notice to the public, supporting motions or on-the-record finding of facts supporting the sealing violates these constitutional and statutory protections. Therefore, Petitioner requests that these court records be unsealed immediately and those stored elsewhere be returned to this Court and unsealed.