No First Amendment Right to Unseal Search Warrants

ELECTRONIC FRONTIER FOUNDATION, INC., Plaintiff and Appellant, v.The SUPERIOR COURT OF SAN BERNARDINO COUNTY, Defendant and Respondent; San Bernardino County District Attorney’s Office et al., Real Parties in Interest and Respondents. E076778; Filed September 15, 20222022 WL 4243552 (Cal.App. 4 Dist.)

Summary:

Background: A Civil-liberties organization filed a petition to unseal search warrants and supporting affidavits under which county sheriff’s office was authorized to use cell-site simulators to obtain location data about cell phones. The Superior Court granted county’s motion for judgment on organization’s petition and held that the disputed materials should remain sealed. The Organization appealed.

Holdings: The Court of Appeal held that:

1 organization had standing;

2 trial court did not abuse its discretion in keeping search-warrant affidavits sealed based on confidential-informant privilege or on county’s qualified right not to disclose information in the interest of justice;

3 confidential-informant privilege deprived organization of right to have search-warrant affidavits unsealed;

4 court rules about requests to seal or unseal records did not require unsealing information in search-warrant affidavits;

5 under the history-and-utility test for determining if a member of the public has a First Amendment right of access to judicial records, organization did not have right to access sealed search-warrant affidavits;

6 even assuming that organization had a qualified First Amendment right of access to sealed search-warrant affidavits, organization’s request to unseal was properly denied; and

7 provision in California Constitution granting access to judicial hearings and records did not grant organization right to have search-warrant affidavits unsealed.

Factual and Procedural Background-EFF and use of cell-site simulators

EFF is a civil  liberties organization working to protect and promote fundamental liberties in the digital world.  According to EFF, cell-site simulators always collect the digital data of innocent people. “A cell-site simulator works as its name suggests—it pretends to be a cell tower on the network of the target phone’s service provider. It takes advantage of the fact that a cell phone—when turned on—constantly seeks out nearby cell towers, even if the user is not making a call. Furnished with identifying information concerning the target phone, the cell-site simulator searches for that phone. When the cell-site simulator is close enough, the target phone will connect to it as though it were a cell tower.” (A.L.R. Criminal Law, Art. XVII, § 392.38(15).

EFF claims law enforcement authorities in San Bernardino County regularly seeks warrants to use cell-site simulators while moving to keep the warrants sealed indefinitely, and the San Bernardino County Superior Court (the Superior Court) largely grants the request when issuing the warrants. EFF has sought information about numerous search warrants issued by the Superior Court, but this case is about EFF’s request for eight search warrants.

EFF petitioned to unseal eight “search warrant packets” that contained warrants issued by the Superior Court between March 2017 and March 2018 that allowed the Sheriff to use cell-site simulators.  EFF sought the search warrant materials “to learn more about (1) the nature of the offenses under investigation, (2) the expertise and qualities of the affiants, (3) why the affiant believes the searches will assist the investigation, (4) the nature of the information to be provided under the warrant, (5) what providers must do to comply with the warrant, and (6) reasons for seeking sealing and/or nondisclosure.”

The Sheriff and the San Bernardino County District Attorney (the County) d opposed the unsealing of portions of the seven other warrant packets.

County argued for indefinite sealing of “Hobbs” Affidavits

The  County argued the returns to the executed search warrants and the “Hobbs affidavits” (People v. Hobbs (1994) 7 Cal.4th 948, 962 (Hobbs)). in support of the warrants should remain sealed indefinitely, because they contain sensitive information about confidential informants (Evid. Code, § 1041) and “official information,” meaning information “acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.” (Evid. Code, § 1040, subd. (a).)

Section 1534(a) and Evidence Code 1041

Section 1534(a) provides that a warrant and its related documents need not be made public for 10 days after its issuance. “Thereafter, if the warrant has been executed, the documents and records shall be open to the public as a judicial record.” (§ 1534(a).)

EFF argued  that the search warrant packets had to be unsealed under section 1534(a) because the warrants had been executed long before EFF moved to unseal them. But, the County correctly observed, the confidential informant privilege in Evidence Code section 1041 creates “an exception to [section 1534(a)].” (Hobbs, supra, 7 Cal.4th at p. 962.)

Hobbs Procedure

Hobbs outlines a procedure trial courts must follow to determine whether to unseal a Hobbs affidavit. “The court’s first step is to determine whether the affidavit or any major portion of it has been properly sealed. This question entails two determinations: ‘It must first be determined whether sufficient grounds exist for maintaining the confidentiality of the informant’s identity. It should then be determined whether the entirety of the affidavit or any major portion thereof is properly sealed, i.e., whether the extent of the sealing is necessary to avoid revealing the informant’s identity.’ If the court ‘finds that any portion of the affidavit sealed by the magistrate can be further redacted, and the remaining excerpted portion made public without thereby divulging the informant’s identity, such additional limited disclosure should be ordered.” Trial courts must follow a similar procedure to determine whether official information should remain sealed under Evidence Code section 1040.

The trial court’s ruling concerning the disclosure of the identity of a confidential informant is reviewed under the abuse of discretion standard.

The trial court reasonably found that EFF’s reasons for wanting to unseal the Hobbs affidavits—to learn more about the Sheriff’s use of cell-site simulators—do not outweigh the County’s interest in protecting the official information and the identity of confidential informants contained in the affidavits. There was nothing arbitrary, capricious, or patently absurd about the trial court’s rulings.

EFF does not have a First Amendment right to the Hobbs affidavits. Protecting the identities of confidential informants and the confidentiality of law enforcement investigatory practices is an “ ‘overriding interest’ ” supporting sealing.

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