Sealing Warrants

by School of Government faculty member Michael Crowell In the last couple of years North Carolina has seen several high profile cases in which the sealing of a search warrant became an issue.  One was the investigation of the murder of Nancy Cooper in Cary, and it led to last week's North Carolina Court of Appeals' decision, In Re: Search Warrants Issued In Connection With The Investigation Into The Death Of Nancy Cooper, No. COA08-1280 (Oct. 6, 2009), the first state appellate decision to offer guidance on sealing warrants. Nancy Cooper disappeared in mid-July 2008, then her body was found several days later, strangled to death.  As the investigation focused quickly on her husband, Brad, several search warrants were issued for the home, his car, and his office and computers.  The police and prosecutor asked to seal the search warrants plus the applications and inventories, to protect an ongoing investigation. The motions were granted ex parte, for thirty days each, and later extended over the objection of Capitol Broadcasting and the News and Observer.   Within a couple of months all were unsealed, and Bradley Cooper was charged with murdering his wife.  The Court of Appeals upheld the sealing. The Court of Appeals started with the statute, G.S. 132-1.4(k), which says that search warrants which have been returned are public records and "may be withheld only when sealed by court order. . . ."  That's it.  There is nothing to tell a trial judge when a warrant may be sealed and when not, and there is nothing about the procedure to be followed. The Cooper decision filled out the process for sealing this way:  (1)  Warrants may be sealed when the sealing is "essential to preserve higher values and is narrowly tailored to serve that interest"; (2) the trial court must state on the record its reasons for sealing; (3) the judge must consider less restrictive alternatives before sealing; (4) the trial court can adopt and rely upon the facts presented by the government to justify sealing, when the evidence is creditable; and (5) the trial court's findings must be sufficiently specific to allow meaningful appellate review. In reaching that result the Court of Appeals panel rejected the argument that there is a First Amendment right of public access to warrants and related documents (because historically the issuance of warrants has not been open to the press and public) and also rejected the idea of a common law qualified right of access to judicial records (on the ground that North Carolina's public records law had supplanted any common law right). The court did find, however, a state constitutional right of access to judicial records in Article I, § 18's provision that "All courts shall be open . . ." - and it read that state constitutional right to be essentially the same as the common law right of access described by the Fourth Circuit in Baltimore Sun Company v. Goetz, 886 F.2d 60 (4^th Cir. 1989). The key component of the Cooper "All courts shall be open" right, just like in Baltimore Sun, is that restricting access is allowed only when it is "essential to preserve higher values and is narrowly tailored to serve that interest."  The values served by sealing the Cooper warrants were protecting the defendant's right to a fair trial, maintaining the integrity of the investigation, and guarding the state's right to prosecute the defendant.  (Another potential reason for sealing a warrant might be to protect innocent third parties.  See New York Times Company v. Biaggi, 828 F.2d 110 (2^nd Cir. 1987), cert. denied, 485 U.S. 977 (1988).) The "narrowly tailored" prong of the Cooper/Baltimore Sun analysis means that before sealing a warrant the trial court must consider less restrictive alternatives such as disclosing some documents but not others, or redacting documents.  In Cooper the Court of Appeals said such alternatives were impractical; its reasoning was that because all warrants focused on Brad Cooper no portion could be revealed without jeopardizing the investigation.  Thus, limiting the sealing to thirty days was the least restrictive means of protecting the "higher values" of protecting the right to a fair trial and guarding the integrity of the investigation.