Application for a Search Warrant No. L-18/81, Matter of, L-18

• Decision Date: 02 April 1981
• Docket Number: L-18
• Citation: 108 Misc.2d 440,437 N.Y.S.2d 635
• Parties: In the Matter of an APPLICATION FOR A SEARCH WARRANT, #/81.
• Court: New York City Court

Page 635

437 N.Y.S.2d 635

108 Misc.2d 440

In the Matter of an APPLICATION FOR A SEARCH WARRANT, # L-18/81.

Criminal Court of the City of New York, Kings County.

April 2, 1981.

Eugene Gold, Dist. Atty. by Asst. Dist. Atty., Marlene Malamy.

Newman & Adler by Roger Bennet Adler, New York City, for petitioner.

OPINION AND ORDER

MICHAEL R. JUVILER, Judge.

This is a motion by a business enterprise and its owner (hereafter "petitioner") to vacate an order entered ex parte by the Supervising Judge of this Court, the Honorable Nicholas Coffinas, sealing an application for a search warrant previously issued by a Judge of this Court.

Petitioner contends that this Court lacked authority to seal the application for the warrant and that unsealing is required to permit him to challenge the warrant and recover his property. Judge Coffinas has referred the motion to me for determination on the merits of the sealing.

There is no reported case in this state regarding the authority of a court to seal an application for a search warrant against disclosure to the subject of the search. Nor is the matter treated by statute. Analogies, however, confirm this Court's inherent power to seal these records, and establish that on the facts in this case, sealing is a sound exercise of discretion.

The Facts

The facts are not in dispute.

In furtherance of an investigation by a Kings County Grand Jury, the District Attorney submitted to Judges of this Court four applications, containing affirmations of assistant district attorneys and supporting affidavits, for search warrants directed at four locations, including petitioner's place of business. The applications recited that evidence of violations of Penal Law §§ 190.65 (scheme to defraud), 155.35 (grand larceny, second degree), and 165.45 (criminal possession of stolen property) was sought.

The four search warrants were issued, served, executed, and returned on January 9, 1981. Four filing cabinets, some containing business records, were seized at petitioner's place of business, a retail variety store. Grand Jury subpoenas for witnesses were issued, returnable early in March.

On January 15, an assistant district attorney applied to the Supervising Judge of this Court for an order sealing the applications for the four search warrants. She affirmed that the Grand Jury was conducting an investigation of conspiracy, scheme to defraud, grand larceny, and criminal possession of stolen property; that the investigation involved "matters of a sensitive nature"; and that release of the applications "would seriously compromise the investigation and impede the action of the Grand Jury." The Judge ordered the four applications sealed subject to further order, on the ground that disclosure "will seriously compromise an on-going investigation" by the Grand Jury, and that the Criminal Court "has inherent power" to order the Clerk to seal the documents. The District Attorney's Office was directed "to notify this Court when the Grand Jury has completed its investigation" (order dated January 15, 1981).

Petitioner moved for an order unsealing the application for the search warrant for his premises, or at least for redacted copies of the affidavits. During oral argument of the motion, I met in camera with the prosecutor, to receive confidential information on the record in the absence of petitioner's counsel regarding the need to seal the affidavits.

Originally, the petitioner complained of disruption of his business by retention of the records; later, however, the parties arranged for petitioner to receive copies of all of the records seized.

Court's Inherent Power to Seal an Application for a Search Warrant

The statutes dealing with search warrants have no provision for inspection of the application by the target of the search, before the filing of an accusatory instrument. See CPL art. 690. The occupant of premises searched is entitled to see the warrant or a copy of the warrant upon request. § 690.50, subd. 1. A receipt for the property taken must be left with the person in possession of the premises. § 690.50, subd. 4. Nothing is said of disclosure of the affidavits in support of the warrant. The only provision applicable to disclosure of the affidavits is a general provision of discovery of "property" after the filing of an "indictment" or "information," but not during an investigation. See CPL art. 240.

Petitioner nevertheless contends that the application is a public record, which he is entitled by law to see. In support, he cites only section 4 of the Judiciary Law, which provides that "sittings of every court within this state shall be public, and every citizen may freely attend them." This provision, however, has been construed to allow courts the inherent power to hold sittings in private, under appropriate circumstances. Oneonta Star Division Ottoway Newspaper v. Mogavero, Inc., 77 A.D.2d 376, 434 N.Y.S.2d 781; Gannett Co., Inc. v. De Pasquale, 43 N.Y.2d 370, aff'd 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608. Thus, to protect the secrecy of grand jury investigations, the Extraordinary Special and Trial Term of the Supreme Court in New York City for corruption cases holds proceedings on motions to quash or enforce grand jury subpoenas in private.

In any event, an application for a search warrant is not a "sitting" of a court. It is an ex parte proceeding, not connected with a criminal action, and often takes place in the judge's home or private chambers.

People ex rel. Kenney v. Cornell, 6 Misc. 568, 27 N.Y.S. 859 (Sup.Ct.Kings Co.), held that the statutory reference to "sittings" of court does not apply to an application to a magistrate for an information and a warrant of arrest; that proceeding, said the court, is ex parte and should be kept closed to prevent flight of the accused. See also People ex rel. Livingstone v. Wyatt, 113 App.Div. 111, 99 N.Y.S. 114 (a statute provided that depositions in support of an application for an information and warrant were secret, except to the parties; therefore, the taking of the depositions should be in secret). This case is indistinguishable.

Although there is no specific statutory authority for sealing an application for a search warrant, the Judiciary Law gives every court of record "power to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it." § 2-b, subd. 3. In a proper case, devising an order sealing the application for a search warrant can be reasonably related to carrying into effect the court's power to order a seizure of evidence of crime.

As the Court of Appeals recently noted, "even absent statutory authorization" providing "safeguards by which court records may remain confidential, in appropriate cases courts have called upon a power, traditionally labelled inherent, to provide similar relief when the interests of justice so dictate. The power grows out of the measure of discretionary authority courts enjoy with respect to their own records insofar as they pertain to the business of the court and when essential to the proper administration of justice." Hynes v. Karassik, 47 N.Y.2d 659, 664, 419 N.Y.S.2d 942, 393 N.E.2d 1015. "Exercised only rarely, this power has variously been wielded ... to seal court records in order to preserve confidentiality in sensitive proceedings." Ibid. See also Matter of Richard S. v. City of New York, 32 N.Y.2d 592, 347 N.Y.S.2d 54, 300 N.E.2d 426 (Family Court's records); Stevenson v. News Syndicate, 276 App.Div. 614, 96 N.Y.S.2d 751, aff'd. 302 N.Y. 81, 96 N.E.2d 187 (records of matrimonial actions); Jensen v. Jensen, 103 Misc.2d 49, 425 N.Y.S.2d 208 (S.Ct.N.Y.Co.).

In federal courts, this principle of inherent power has been applied specifically to support the court's discretionary authority to seal applications for warrants. In re Sealed Affidavits to Search Warrants, 600 F.2d 1256 (search warrant); In re Braughton, 520 F.2d 765 (warrant to arrest material witness and obtain handwriting exemplar); In re September 1971 Grand Jury, 454 F.2d 580, 583 (7th Cir.) (search warrant); In re Search Warrant for Second Floor Bedroom, 489 F.Supp. 207 (D.R.I.1980); Matter of Sealed Affidavits to Search Warrants, 471 F.Supp. 325 (D.Nev.1979).

In short, there is overwhelming authority indicating that in an appropriate case this Court has the discretion to seal an application for a search warrant. How should this discretion be exercised here?

Exercise of Discretion During a Grand Jury Investigation

An important consideration affecting my discretion in this case is the pendency of a grand jury investigation relating to the property seized. There is a strong public policy in favor of secrecy of grand jury investigations. See CPL § 190 40, subd. 1; Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038, 4 L.Ed.2d 989; People v. Di Napoli, 27 N.Y.2d 229, 316 N.Y.S.2d 622, 265 N.E.2d 449. Among the reasons for secrecy, several of which are applicable here, are prevention of flight, of destruction of evidence, and of tampering with witnesses; encouraging information by insuring the confidentiality of evidence from prospective witnesses; protecting the innocent; and protecting the grand jury from interference. See People v. Di Napoli, supra. In furtherance of this public policy, for example, a court that issued an eavesdropping order may postpone the statutorily required notice to the subject of a wiretap, during an investigation. United States v. Manfredi, 488 F.2d 588, 601-602. The "informer's privilege" serves similar interests. And to preserve confidentiality, a court may interview an informant in camera upon a motion for disclosure of his identity.

I have examined the affirmations and affidavits submitted in the application for the search warrant, which are now under seal. (This in camera inspection is suggested by the federal cases on the subject, cited above.) I find that there is no way to redact this material; it is...