Westerfield v. Superior Court

• Decision Date: 03 May 2002
• Docket Number: No. D039640.,D039640.
• Citation: 119 Cal.Rptr.2d 588,98 Cal.App.4th 145
• Court: California Court of Appeals Court of Appeals
• Parties: David Alan WESTERFIELD, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; Copley Press, Inc. et al. Real Parties in Interest.

119 Cal.Rptr.2d 588

98 Cal.App.4th 145

David Alan WESTERFIELD, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; Copley Press, Inc. et al. Real Parties in Interest.

No. D039640.

Court of Appeal, Fourth District, Division 1.

May 3, 2002.

Review Denied June 26, 2002.^*

Law Offices of Steven E. Feldman, Steven E. Feldman, San Diego, Rebecca P. Jones, Boyce & Schaefer, Robert E. Boyce, San Diego, and Laura G. Schaefer, San Diego, for Petitioner.

No appearance for Respondent.

Harold W. Fuson, La Jolla, Scott A. Wahrenbrock, Judith L. Fanshan, Gray, Cary, Ware & Freidenrich and Guylyn R. Cummins, San Diego, for Real Party in Interest Copley Press, Inc.

Paul J. Pfingst, District Attorney, Gregory Thompson, Assistant District Attorney, Charles E. Nickel, Anthony Lovett, Jeff B. Dusek, Josephine A. Kiernan, and Richard S. Armstrong, Deputy District Attorneys for Real Party in Interest the People.

McINTYRE, J.

FACTUAL AND PROCEDURAL BACKGROUND

On February 22, 2002, David Alan Westerfield was arrested in connection with the kidnapping of seven-year-old Danielle Van Dam. Four days later, the People filed a complaint charging Westerfield with murder with special circumstances in the death of Danielle, kidnapping and misdemeanor possession of child pornography. Before arresting Westerfield, police obtained seven search warrants—

• a February 5 warrant (No. 27802) to search Westerfield's computer, computer files and disks for images of nudity and/or sexual activities involving juveniles and/or juveniles with adults;

• a February 6 warrant (No. 27809) to search records of Verizon Wireless for information regarding calls on Westerfield's mobile phone between February 1-4;

• a February 7 warrant (No. 27813) to search Twin Peaks Cleaners for all items Westerfield dropped off for cleaning;

• a February 15 warrant (No. 27818) to search Westerfield's home, 4-Runner, motor home and car carrier for carpet samples, biological samples, fibers, photos, children's pajamas, children's necklaces, Mickey Mouse earrings, unlaundered clothes, etc.;

• a February 13 warrant (No. 27830) to search Westerfield's home and seize footwear, tape-lift prints, binding materials, videotapes, CD's, recordings, recording equipment, film and pictures of nudity and/or sexual activity involving juveniles and/or juveniles with adults, and documents showing dominion and control;

• a February 19 warrant (No. 27845) to search records of Verizon Wireless for information regarding calls between February 15-19 made on a police mobile phone used while attempting to recreate Westerfield's travel route; and

• a February 19 warrant (No. 27846) to search PacBell records for information related to a trace on the Van Dams' phones between February 12-March 30.

(The People indicate police also obtained an eighth warrant (No. 27800), which was not addressed by the court or the parties because of inadvertence.) At the request of police, the court sealed the warrants and all related documents including the affidavits supporting the warrants and the returns.

The Copley Press, Inc. (Copley) filed a motion for access to the sealed search warrant documents. At the February 27 hearing, the court modified its sealing order to make a copy of the documents available to defense counsel, allowed defense counsel 90 minutes to review the documents and held an in camera hearing with the prosecutor and defense counsel. Following the in camera hearing, the court ordered that the warrants be made available for the press, but deferred ruling on release of the affidavits supporting the warrants and related documents until March 4. The court also ordered counsel to file any requests for redaction by noon on March 1. On March 1, the People and Westerfield filed additional briefs under seal.

On March 4 the trial court issued an order granting Copley's motion to unseal the affidavits, returns, inventories and sealing orders pertaining to warrant Nos. 27802, 27809, 27813, 27818, 27830, 27845 and 27846, except for exhibits E and F to warrant No. 27830. As to these, the court found exhibits E and F to warrant No. 27830 labeled "sexually explicit material" contained information that was "harmful" under Penal Code sections 1417.8 and 313 and release was inappropriate. Further granting the request of the People and the defense to redact material that would be clearly inadmissible at trial, the court directed the prosecutor to make the indicated redactions and provide them to the court for review. The court also ordered the unredacted affidavits, the transcript of the February 27 in camera hearing, and the March 1 filings to remain under seal until the conclusion of Westerfield's criminal trial. Finally, the court issued a stay of its March 4 order until Westerfield could seek writ relief.

In a petition that appears to have been prepared before the issuance of the March 4 order, Westerfield complains the trial court provided him an insufficient opportunity to examine and lodge objections to more than 200 pages of material related to the warrants. We granted Westerfield's request to stay further release of the material, obtained all documents relating to the warrants under seal and requested responses to the petition from Copley and the People. We also permitted Westerfield and the People to submit any supplemental objections they might have to the release of the documents and to discuss potential mootness by virtue of testimony introduced at Westerfield's preliminary hearing conducted a few days later. We thereafter issued an order to show cause.

DISCUSSION

The issue in this case involves a clash between the public's right of access to judicial records and the real possibility that disclosure will jeopardize a criminal defendant's right to a fair trial.

The first step in our analysis is to determine the basis for the right of access and, accordingly, the standard to apply. Citing Press-Enterprise Co. v. Superior Court of Cal. (1984) 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 and various federal circuit cases, Copley argues the First Amendment guarantees the public a right of access to search warrant affidavits and related materials unless there is a compelling governmental interest requiring closure. In KNSD Channels 7/39 v. Superior Court (1998) 63 Cal.App.4th 1200, 74 Cal. Rptr.2d 595 we concluded the right of access to records from judicial proceedings "exists not by virtue of the First Amendment ... but rather as a continuation of the common law right to inspect and copy judicial records." (Id. at p. 1203, 74 Cal. Rptr.2d 595.) We decline the invitation to extend the First Amendment standard to the records involved here. We note there is a split in the federal courts at least with respect to the issue of pre-indictment warrant materials. (Compare Times Mirror Co. v. U.S. (9th Cir.1989) 873 F.2d 1210 [no First Amendment right of access], Baltimore Sun Co. v. Goetz (4th Cir.1989) 886 F.2d 60 [no First Amendment right of access] and In re Search Warrant for Secretarial Area-Gunn (8th Cir.1988) 855 F.2d 569 [qualified First Amendment right of access].)

The United States Supreme Court applies a two-tiered inquiry to claims of First Amendment right of access in criminal proceedings. (Press-Enterprise Co. v. Superior Court (1986) 478 U.S. 1, 8, 106 S.Ct. 2735, 92 L.Ed.2d 1.) As the court explains:

"First, because a `"tradition of accessibility implies the favorable judgment of experience"' [citations], we have considered whether the place and process have historically been open to the press and general public, [¶] ... [¶] Second, in this setting the Court has traditionally considered whether public access plays a significant positive role in the functioning of the particular process in question. [Citation]." (Ibid.)

Even when a First Amendment right attaches, the right is not absolute, adds the court cautioning "[w]hile open criminal proceedings give assurances of fairness to both the public and the accused, there are some limited circumstances in which the right of the accused to a fair trial might be undermined by publicity." (Id. at p. 9, 106 S.Ct. 2735.)

Traditionally, warrant proceedings and materials have been closed to the public. "[T]he history of the warrant process in this country indicates that the issuance of search warrants has traditionally been carried out in secret. Normally a search warrant is issued after an ex parte application by the government and an in camera consideration by a judge or magistrate." (Times Mirror Co. v. U.S., supra, 873 F.2d 1210, 1213-1214.) In the same vein, "[t]he process of disclosing information to a neutral magistrate to obtain a search warrant ... has always been considered an extension of the criminal investigation itself. It follows that the information disclosed to the magistrate in support of the warrant request is entitled to the same confidentiality accorded other aspects of the criminal investigation." (Id. at p. 1214.)

Copley rebuts the confidentiality of the information supporting the warrants, pointing out that documents and records relating to a warrant become public 10 days after the warrant is executed pursuant to Penal Code section 1534 and the new California Rules of Court impose significant barriers to sealing (Cal. Rules of Court, rules 243.1 & 243.3). These arguments put the cart before the horse: neither the statute nor the new rules create a historical basis for open access to warrant materials or establish that the First Amendment requires such materials to be unsealed. We add, although Penal Code section 1534 provides documents relating to a search warrant become public 10 days after execution of the warrant, the statute has been interpreted to exclude material that is deemed privileged or confidential. (People v. Hobbs (1994) 7 Cal.4th 948, 971, 30 Cal.Rptr.2d 651, 873 P.2d 1246.) There is also a serious question about applying the new rules on sealing to the search warrant documents....