Bench Bar Press Committee

Search Warrants -- A Sensitive Bench, Bar, Press Issue

By Judge Kip Stilz, Thurston County District Court

My two assignments as a member of the "Fire Brigade" have both involved the issue of search warrants - when are the warrants and affidavits in support of those warrants presumably open to public view?

Of course, the vast majority of warrants a judicial officer will issue during her or his career will generate no public interest whatsoever. As a practical matter, that's true of most of what we do day in and day out.

When a case generates high public interest and where a judicial officer has granted a search warrant, you should anticipate that the media will want to view the search warrant and its supporting affidavit.

It is helpful to review the applicable law in advance of any such request. Under the provisions of ARLJ 9(a)(5) search warrants, affidavits, and inventories, after execution and return of the warrant "are considered public records and may be viewed and copied by the public." The Washington Supreme Court has expressed a strong presumption in favor of public access to these items:

"Access to search warrants and affidavits of probable cause can reveal how the judicial process is conducted. The procedures employed by the prosecutor and law enforcement can be evaluated. Access may also disclose whether the judge is acting as a neutral magistrate."

Cowles Publishing Co. v. Murphy, 96 Wn. 2d 584, 598 (1981).

Decisions to seal search warrants/affidavits are governed by the procedures set forth in CrRLJ 8.10. Please refer to the rule for a complete discussion. Generally, these steps must be followed:

• The proponent of sealing must file a motion and supporting affidavit supporting sealing
• Any interested member of the public must be given an opportunity to object
• The test for sealing is whether is a threat to a significant interest (as defined in CrRLJ 8.10(b)) outweighs the public's interest in an open judicial system
• Always the court must consider whether all interests may be served by deletion of the potentially harmful material
• If the judicial officer orders sealing, the officer must prepare a transcript of the proceedings and written findings of fact, conclusions of law and an order directing sealing.

Know the law, be prepared, and call the Fire Brigade for help when you need it. That way you avoid becoming the story!