Sloan v. Sprouse

• Decision Date: 26 October 1998
• Docket Number: No. O 98-0880.,O 98-0880.
• Citation: 968 P.2d 1254,69 OBJ 3802,1998 OK CR 56
• Parties: George SLOAN, Petitioner, v. The Honorable Dennis SPROUSE, Special Judge for Sequoyah County, 15th Judicial District, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

968 P.2d 1254

1998 OK CR 56

George SLOAN, Petitioner, v. The Honorable Dennis SPROUSE, Special Judge for Sequoyah County, 15th Judicial District, Respondent.

No. O 98-0880.

Court of Criminal Appeals of Oklahoma.

October 26, 1998.

Appeal from the District Court, Sequoyah County, Dennis Sprouse, Special Judge.

ORDER REMANDING MATTER TO THE DISTRICT COURT OF SEQUOYAH COUNTY FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW

¶ 1 On July 31, 1998, Petitioner, by and through counsel, filed an application for a writ of mandamus directing the District Court of Sequoyah County, Case No. CV-98-469, to rescind its order of July 22, 1998, sealing the Affidavit for Search Warrant. On July 27, 1998, Petitioner filed a petition for a writ of mandamus in the District Court which was denied in an order filed August 3, 1998.

¶ 2 Petitioner contends that every day he is denied the Affidavit for Search Warrant his ability to defend himself diminishes, as the burden rests with the accused to prove the invalidity of a search. See Pierce v. State, 1972 OK CR 82, ¶ 6, 495 P.2d 407, 409. Petitioner argues that Section 1224.2 of Title 22 requires the filing of the affidavit after the search warrant is executed and that there are no provisions for the "sealing" of an affidavit for search warrant.

¶ 3 Petitioner states that he was incarcerated, and "presumably", evidence which caused his incarceration was cited in the affidavit for search warrant, that he was booked into the county jail on charges of conspiracy and possession of CDS and was required to make a $50,000.00 bond; that he appeared twice before the Magistrate, on July 21 and July 28, 1998, for the purpose of being formally arraigned on these charges; and that on the second occasion he was advised the State did not have the charges prepared and he was released from bond "with the caveat by the Assistant District Attorney that charges were forthcoming".

¶ 4 The District Court denied Petitioner access to the Affidavit finding "it is within the inherent power of the District Court to limit access to judicial records and documents" when "there is a likelihood that disclosure of the information will jeopardize an ongoing investigation by law enforcement, or that cooperating individuals may be targeted for reprisal by those being investigated". In this matter the Honorable John C. Garrett, District Judge, found "[t]here is an on-going investigation by law enforcement that would be jeopardized by public disclosure of the Affidavit of Search Warrant" and that "[t]he identities of cooperating individuals will be revealed, which may result in the cooperating individuals being targeted for reprisal or retaliation". The District Court also noted that Petitioner has not been charged by Information with a criminal offense in the District Court. The order of the District Court cites no legal authority for "sealing" the search warrant affidavit.

¶ 5 In an Order issued August 7, 1998, we directed the District Attorney for Sequoyah County to file a response to Petitioner's application, specifically addressing the District Court's legal authority for "sealing" the search warrant affidavit and denial of disclosure of the Affidavit to Petitioner. The response was filed in this Court August 18, 1998.

¶ 6 The State sets forth that the Affidavit contains certain information about assets that may have been derived from illegal drug activity, information about individuals who had cooperated with law enforcement, and that information had been received concerning the safety of cooperating individuals. On July 22, 1998, a Special Agent with the United States Department of Justice, Drug Enforcement Administration, appeared before the Honorable Dennis M. Sprouse, Special Judge, to make the search warrant return. The Agent was sworn under oath and the Search Warrant return was made to the court, along with the supporting Affidavit of Search Warrant.

¶ 7 An Assistant District Attorney then requested Judge Sprouse to entertain an ex parte hearing on an Application for Sealed Affidavit of Search Warrant. It was argued that since the District Court had authority under 22 O.S.1990, § 1233, to accept the police officer's return of the search warrant, then the court would also have authority to hear the Application for Sealed Affidavit of Search Warrant. A written Application for Sealed Affidavit of Search Warrant was given to Judge Sprouse. Upon review of the Application for Sealed Affidavit of Search Warrant, Judge Sprouse determined that the Affidavit of search warrant should be sealed. Since the Application for Sealed Affidavit of Search Warrant contained facts from the Affidavit of Search Warrant, the court also determined that the application should be sealed. However, Judge Sprouse determined that the search warrant and accompanying return should be filed and made a public record along with the Order Sealing Affidavit for Search Warrant. In accordance with the Magistrate's order, the same was filed under Sequoyah County District Court Case No. SW-98-22.

¶ 8 The State argues that the courts, as an exercise of their inherent power, may control access to their own files and records, or any portion thereof, to protect the identity of witnesses and/or the integrity of an ongoing investigation. The State also asserts that to allow the publication of this information would seriously endanger the welfare and safety of cooperating individuals and hinder the efforts of law enforcement agencies in their investigation.

¶ 9 On August 25, 1998, Petitioner filed a request for permission to file a reply to the State's response and attached the tendered reply.¹

¶ 10 For a writ of mandamus, Petitioner has the burden of establishing that (1) he has a clear legal right to the relief sought; (2) the respondent's refusal to perform a plain legal duty not involving the exercise of discretion; and (3) the adequacy of mandamus and the inadequacy of other relief. Rule 10.6(B), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (1997).

¶ 11 Art. 2, § 30, of the Oklahoma Constitution guarantees:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.

¶ 12 The Oklahoma statutory requirements for a search warrant can be found at 22 O.S.1991, § 1221, et seq. The North Dakota statutes served as a model for Oklahoma's search and seizure provisions. See Comp.Laws Dak.1887, §§ 7613 et seq. However, neither the statutes of North Dakota nor Oklahoma provided for the release of affidavits when filed.

¶ 13 In 1971 the Oklahoma Legislature enacted Section 1224.2 of Title 22 which directs:

In the event the search warrant is executed, then the search warrant, affidavit for search warrant, and transcript of oral testimony, if any, shall be filed with the clerk of the District Court, and shall be indexed by the clerk in alphabetical order. Upon a criminal prosecution being filed, said document shall be filed in said case.

This language indicates a presumption of openness and accessibility.

¶ 14 North Dakota's legislature enacted a new statute in 1995 relating to this issue. See Sec. 29-29-22 of the North Dakota Century Code. This Section requires:

The magistrate who issues a search warrant shall order the information in the complaint and warrant confidential, if the law enforcement officer articulates a reason for the confidentiality that convinces the issuing magistrate that limited confidentiality is necessary for the safety of the law enforcement officer or to enable the warrant to be properly served. The magistrate shall limit the duration of the order to the time of the arrest of the accused and shall exempt law enforcement officers in the performance of official duties.

While this North Dakota statute has not been adopted in Oklahoma and does not serve as an interpretation for our statutes, it does provide a point of reference for analysis of the issue presented.

¶ 15 The federal courts of various circuits have addressed this issue in the context of the Warrant Clause of the Fourth Amendment to the Constitution of the United States and have found that the Fourth Amendment right to be free from unreasonable searches and seizures includes the right to examine the warrant after the search is conducted and the warrant has been returned to the clerk and filed.² However, it does not appear that the United States Supreme Court has addressed this issue; therefore, we are not presented with cases of binding judicial precedence which must be followed.

¶ 16 This Court has repeatedly held that Art. 2, § 30, of the Oklahoma Constitution is "almost an exact copy of the fourth amendment of the Constitution of the United States" and that while "the language is not in all respects the same in the two provisions; ... the substance is identical". De Graff v. State, 2 Okla.Crim. 519, 103 P. 538, 541 (Ok. Cr.1909). See also Langham v. State, 787 P.2d 1279, 1281 (Ok.Cr.1990) (Parks, J., concurring in result); Long v. State, 706 P.2d 915, 916-917 (Ok.Cr.1985). In addition, the Fourteenth Amendment to the United States Constitution provides "... nor shall any state deprive any person of life, liberty, or property without due process of law ..." which protection is also set out in Art. 2, § 7, of the Oklahoma Constitution.

¶ 17 When these statutory and constitutional provisions are read in context, we are reminded that the foundational aspect of due process is a requirement of notice and opportunity to be heard.

¶ 18 The Oklahoma legislature has not created a procedure akin to that of North Dakota for the courts to have guidance as to when and for what duration affidavits supporting issuance of a search warrant can be sealed. For that reason, we must...