In re Essex Search Warrants

• Decision Date: 09 November 2012
• Docket Number: No. 11–228.,11–228.
• Citation: 2012 VT 92,60 A.3d 707
• Parties: In re ESSEX SEARCH WARRANTS.
• Court: Vermont Supreme Court

60 A.3d 707

2012 VT 92

In re ESSEX SEARCH WARRANTS.

No. 11–228.

Supreme Court of Vermont.

Nov. 9, 2012.

William H. Sorrell, Attorney General, and John Treadwell, Assistant Attorney General, Montpelier, for Appellant State of Vermont.

Dan Barrett, Montpelier, for Amicus Curiae American Civil Liberties Union Foundation of Vermont.

Adam Silverman and Sam Hemingway of The Burlington Free Press, Pro Ses, Burlington, Appellees.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

BURGESS, J.

¶ 1. The State appeals from the Chittenden Criminal Division's denial of its motion to seal search warrants and related materials generated during an ongoing investigation into a missing Essex couple. The court determined that the State failed to show with specificity, as required under In re Sealed Documents, that disclosure would cause “substantial harm to public or private interests.” 172 Vt. 152, 153, 772 A.2d 518, 521 (2001). The State asserts foundationally that there is neither a First Amendment nor a common law right of access to search warrant materials in an active, pre-arrest investigation, and argues that Sealed Documents' presumptive right of access should not apply in such cases. Instead, the State urges this Court to hold that there is no right of access to such materials under the Vermont Rules for Public Access to Court Records (PACR Rules). Assuming that Sealed Documents applies to pre-arrest investigations, however, the State claims error in the court's conclusion that the standard for sealing was not satisfied. Finally, the State asserts that the court erred in turning down its request for an evidentiary hearing. We see no error in the court's refusal to conduct a further hearing, but reverse its determination that the State failed to cite sufficiently specific reasons to seal the warrant information.

¶ 2. Despite the dissent's hyperbole, this holding meets the facts of this particular case, and presents no reversal, let alone defiance, of our case law or rules. Post, ¶ 42. Just because application of Sealed Documents does not yield the result preferred by the dissent, it signals no departure from the requirement of specific and compelling reasons for sealing search warrant documentation from public inspection. Id. Nor does it follow that the balance between presumed public access and necessary confidentiality in ongoing police investigations is torn asunder, id., rather than confirmed as provided for in the PACR Rules. See V.R.P.A.C.R. 6(a), (b)(15) (providing for general public access to “case records” subject to exemption for “[r]ecords of the issuance of a search warrant,” until the warrant's return, unless sealed by the court).¹ Correctly describing its difference with the majority as over the meaning of the standard in Sealed Documents, the dissent then incorrectly characterizes the majority's reading of the case as a “change” in that standard. Post, ¶¶ 52, 55.

¶ 3. William and Lorraine Currier of Essex, Vermont were reported missing on June 9, 2011. The Curriers were last seen on June 8 leaving work, and evidence suggests that they were at their home at 8 Colbert Street in Essex at around 7 p.m. that night. The couple's abandoned car was found on June 10 less than a mile from their home.

¶ 4. Essex police obtained a series of search warrants from the Chittenden Criminal Division as part of the investigation into the Curriers' disappearance. On June 15, a Burlington Free Press reporter requested from the court copies of the search warrants issued for the Curriers' home and car, as well as their cell phones, bank account, and credit card receipts. The court denied the request because the search warrant returns had not yet been filed. On June 16, the State moved “to seal search warrants, applications for search warrants, and affidavits filed in support of the search warrants, that were filed in connection with the [Currier] investigation.” The court denied this motion, again citing the fact that the search warrant returns had not been filed.

¶ 5. On June 21, Essex Police filed returns for four of the search warrants executedduring the Currier investigation, as well as inventories and affidavits filed in support of the warrants, and the State renewed its motion to seal the search warrants.² At the time of the State's renewed motion, no arrest had been made in connection with the Curriers' disappearance. The court denied the State's motion, requesting more information about how disclosure of the search warrant materials would harm the investigation, such as what facts remained known only to police and any putative suspect and how this balance of information was useful to the investigation.

¶ 6. The State responded with a supplemental renewed motion to seal. This motion, supported by the affidavit of Essex Police Detective Lawton, listed the information contained in the search warrants believed to be known only to police and any putative suspect in the Curriers' disappearance.³ The State specified that disclosure of search warrant materials would frustrate police evaluation of the credibility of citizen reports by comparison against information known only by police. The Lawton affidavit further posited that because police did not know whether the information collected was relevant to the Curriers' disappearance, or how so, disclosure of the search warrants “would significantly hamper” the investigation by “allow[ing] a suspect to easily avoid detection and/or respond to police questioning.... unduly influenc [ing] the recollection of true witnesses, or allow[ing] any false witnesses to tailor information to fit with what is already known by police.” The State also suggested redaction of the nonpublic information contained in the warrant materials as an alternative to sealing, though it questioned whether redaction would be practical in this case.

¶ 7. The court again denied the motion and ordered that the search warrants be released. The court reasoned that Sealed Documents created a presumption in favor of disclosure that the State failed to overcome with “compelling reasons” showing “substantial harm, demonstrated with specificity with respect to each document.” The court characterized the State's arguments in support of sealing as “only general assertions that the police investigation will be jeopardized if the [search warrants are] released.”

¶ 8. The State then requested a stay until an evidentiary hearing could be held at which Essex Police could testify in support of sealing and the State could argue for redaction. The court refused to grant a stay, explaining that the State proffered no additional information to what had already been offered. The State appealed and requested a stay pending appeal, which the court also denied. This Court, however, granted the State's motion for a stay pending appeal, explaining that denial “would effectively preclude the State from appealing the criminal division's decision and potentially hamper its investigation.” In re Search Warrants, 2011 VT 88, ¶ 3, 190 Vt. 572, 27 A.3d 345 (mem.).

¶ 9. While this appeal was pending, a suspect in the disappearance of the Curriers was taken into custody and the State withdrew its motions to seal the search warrants and related material that form the subject of this appeal. Consistent with this action, the Attorney General informed the Court of his position that all of the material in question should be available to the public. Upon request by the Burlington Free Press, this Court ordered the release of the material and, in a separate order, directed the parties to show cause why the appeal should not be dismissed as moot. Both parties responded that, while technically moot, the appeal should be decided nevertheless under the settled exception for cases “capable of repetition, yet evading review.” State v. Tallman, 148 Vt. 465, 469, 537 A.2d 422, 424 (1987) (quotation omitted). We agree.

¶ 10. The applicability of this particular exception turns on a two-part test: “(1) the challenged action must be in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there must be a reasonable expectation that the same complaining party will be subjected to the same action again.” Id. (quotation omitted). We have applied the exception on at least two occasions to address the propriety of orders sealing documents in pending criminal matters where the underlying criminal cases resolved during the pendency of the appeal. See State v. Schaefer, 157 Vt. 339, 345, 599 A.2d 337, 341 (1991) (applying exception to rule on propriety of order sealing affidavit of probable cause, despite dismissal of the criminal case during appeal); Tallman, 148 Vt. at 469, 537 A.2d at 424–25 (applying exception to address validity of order sealing affidavit of probable cause and closing suppression hearing to the public, although defendant was acquitted during pendency of appeal). As observed in Tallman, pretrial orders of this nature tend to be “short-lived,” and news organizations challenging such orders could reasonably expect to be subjected to similar restrictions in the future. Tallman, 148 Vt. at 469, 537 A.2d at 424–25 (citation and quotation omitted).

¶ 11. As events here demonstrate, the orders at issue in this case are of a similar nature. With the arrest of a suspect, the State's rationale for sealing the search warrant materials and the stay order preventing their disclosure consequently became moot. It is reasonable to expect that this chain of events would likely occur in any future investigation involving pre-arrest search warrants. It is equally reasonable to expect that the State and the media will confront each other again over the same issue in the future, but be frustrated, due to recurring mootness, in their effort to obtain a final judicial determination of their respective obligations and rights relative to public access to these kinds of records.

¶ 12. Furthermore, as...