43% of San Diego search warrants kept secret from public - San Diego, California News Station - KFMB Channel 8 - cbs8.com

Secret Searches: 43% of San Diego warrants kept secret from public

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SAN DIEGO, Calif. (CBS 8) -- Almost half of local search warrants authorizing officers to enter homes and seize private property are blocked from public scrutiny, despite state law mandating the records be open to inspection after the warrant is executed.

At the San Diego County Superior Court downtown, judges seal 43% of search warrants in advance of the warrant being served, according to a CBS News 8 review of the court's search warrant records.

Even after officers execute the search warrants, the records remain sealed indefinitely, in most cases forever, because there is no process in place to assure legal review of the sealed records.

"It's very surprising and disturbing that such a large number search warrants and judicial records are being kept from the public," said David Loy, attorney with the American Civil Liberties Union of San Diego & Imperial Counties.

Loy said it makes sense that search warrants are kept secret before they are executed. For obvious reasons, officers do not want the target of a criminal investigation to be tipped off that his property is about to be raided.

For that reason, under California Penal Code 1534(a), "(R)ecords of the court relating to the warrant need not be open to the public until the execution and return of the warrant."

However, once officers execute a search warrant and evidence is seized, the circumstances change and the target of the investigation generally becomes aware that he is under suspicion.

By state law, it is the execution of the search warrant that triggers public disclosure of the probable cause officers had to raid the home and seize property in the first place.

According to Penal Code, "Thereafter, if the warrant has been executed, the documents and records shall be open to the public as a judicial record."

"Once the search has been completed, once the police have searched the house, searched the car, searched the cell phone, obtained the fruits of the warrant; at that point the law says that the search warrant is presumptively open to the public so that the public can monitor law enforcement and hold it accountable," said ACLU attorney Loy.

But in San Diego County, that's not always happening.

CBS News 8 reviewed San Diego County Superior Court log books and discovered that 43% of search warrants in downtown San Diego court were sealed. In Vista court, 40% of search warrants were sealed. In El Cajon, 38% of search warrants were sealed; and 17% of search warrants were sealed in Chula Vista court.

Over the years, thousands of local search warrants have been kept secret from the public.

Sealed Search Warrants (Recent Years) - SD County
Court Location # Warrants # Sealed % Sealed Date Range
San Diego 806 347 43% 05-02-13 to 09-12-13
Vista 603 242 40% 01-02-13 to 09-17-13
El Cajon 372 140 38% 01-04-13 to 09-09-13
Chula Vista 361 61 17% 01-03-12 to 09-17-13

In California, judicial records can only be sealed if there is a compelling interest that overcomes the right of public access. An overriding interest, for example, could be the privacy of a sexual assault victim whose name appears in the search warrant.

The sealing order also must be "narrowly tailored." So, rather than sealing an entire search warrant related to a sexual assault investigation, a judge may redact the name of the victim and release the rest of the warrant to the public.

San Diego County District Attorney Bonnie Dumanis has opposed the unsealing of search warrants in several high-profile cases.

"There are a lot of good reasons why search warrants are sealed," said Dumanis.

"They are sealed because either there's an ongoing investigation, a victim or witness is at risk, there are confidential informants, or in sex crimes," Dumanis said.

In the case of convicted murderer and rapist John Gardner, news organizations fought to get search warrants unsealed.

The warrants showed a police officer had detained and questioned Gardner on suspicion of stalking a woman in Escondido, two months after he murdered Escondido teenager Amber Dubois.  Gardner was released with a traffic citation and later murdered Poway teen Chelsea King.

When David Westerfield kidnapped and murdered 7-year-old Danielle van Dam in 2002, unsealed search warrants showed officers had tapped the Sabre Springs telephone of the victim's parents, Brenda and Damon van Dam.

And recently -- in the case of Lakeside teenager Hannah Anderson – unsealed search warrants revealed detectives had found used condoms, and letters written by Anderson herself, inside the home of the girl's alleged kidnapper, James DiMaggio.

In San Diego County, judges usually seal search warrants in advance of the warrant being executed. Typically, a judge is contacted in chambers or over the telephone by an officer and/or prosecutor with a request to sign off on the search warrant's probable cause statement, and to issue a sealing order.

As noted above, the search warrants remain sealed forever, unless a defense attorney, outside party, or news organization challenges the sealing order at a later date.

"We want to be transparent as possible, and so now we have become aware that there are a lot of cases that don't ever get unsealed," said DA Dumanis. "We have not, until you pointed it out, really realized that there was an issue."

After reviewing the results of CBS News 8's investigation, Dumanis said she has initiated a policy change in her office that may help get some search warrants unsealed.

"The policy that we're looking at is more of a presumption to unseal so long as there's no good reason to keep it sealed," said Dumanis.

Dumanis said prosecutors will now initiate motions to unseal search warrants in cases where charges have been filed, and preliminary hearing evidence has already been presented in court.

"We are looking at a policy where we will step forward and ask to have (the warrants) unsealed at the earliest possible time," Dumanis said.

Still, the DA's new policy change would have no effect on sealed search warrants associated with investigations where no criminal charges have been filed.

"Let's say the police do a search and decide not to file charges. Then, the press and the public also have a right to know why (officers) conducted that search," said ACLU attorney Loy. "Why haven't charges been filed? Did they mistakenly target an innocent person?"

Loy said procedures should be put in place by the Superior Court to assure the public has access to records.

"I think the burden is on the court to figure out a way – and it can be low tech or it can be high tech – to implement this rule so warrants become presumptively open to the public," he said.

Karen Dalton, a public information officer for San Diego County Superior Court, emailed CBS News 8 the following statement:

"The Court agrees there may room for improving public's access, where appropriate, with search warrants returned to court. Keeping in mind the balance of the public's right to know, the privacy of those not charged and right to a fair trial, court administration will be tasked with developing recommendations consistent with the law to ensure that access to search warrants is handled as expeditiously as possible."

CBS News 8 also asked open-government advocates to review data collected from our search warrant investigation.

From Sacramento, General Counsel Terry Francke with Californians Aware (CalAware.org) issued the following statement:

"Under the Fourth Amendment, Americans have a fundamental right to be free from unreasonable searches. The only sure check against the routine violation of this right is in assuring that search warrants are issued with adequate cause in the first place and that they normally result in seizure of the evidence specified in the warrant (or evidence of equal or greater value). The fulfillment of those standards is uniquely reflected in the warrant and return, both of which are required to be made public in due course.

Some may say that it's the defendant's job to fight this out since the evidence will be used against him or her, and the public has no need to know. But it's not always the defendant's premises that are searched, and in any event the Legislature, in enacting Penal Code Section 1534 (a), obviously felt that preserving the Fourth Amendment from routine violation required searches to be justified and reported on the public record.

Both California and federal courts have recognized an exception to the right of prompt access, and that's when immediate disclosure would tip off members of a gang, an organized crime group or other conspirators still at large and allow them to conceal or destroy evidence and/or elude search or arrest otherwise. But if neither law enforcement officials nor the courts will let us know whose property has been searched, and when, and why, and with what result, it's no exaggeration to say that we are entering a police state."

General Counsel Jim Ewert with the California Newspaper Publishers Association (cnpa.com) also weighed in:

"The systemic sealing of search warrants in San Diego County is yet another shameful example of law enforcement and the District Attorney evading accountability for their actions to the residents that they serve. The high percentage of search warrants that are automatically sealed violates existing law and should be particularly alarming to anyone that values the founding principles of our Democratic government."

 

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