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Most Utahns may understand they have constitutional rights protecting them from unreasonable search and seizure. What they probably don't realize is that citizens and journalists often hit a wall of silence when they want to find out how police carry out searches.
This week, board members of the Utah Headliners Chapter of the Society of Professional Journalists sent a letter to Utah Supreme Court Chief Justice Christine Durham asking court administrators to review rules governing access to search warrants. Journalists say warrant rules are too vague, leading judges to seal records for trivial reasons. The rules also make warrants nearly impossible to unseal, according to Nate Carlisle, Tribune crime reporter and SPJ board member.
Carlisle says that search warrants have been valuable to help the public better understand law enforcement activity, review the facts behind high-profile court cases and learn about governmental misdeeds.
"Search warrants can illustrate problems which never reach another form of public disclosure. In one example from 2009, a returned search warrant showed a Nigerian scam had taken $2.5 million from the University of Utah. No one was ever prosecuted in the case, and the public may not have known of the loss if not for the search warrant," Carlisle wrote in a report for SPJ.
Because of the prohibition against unreasonable searches, police must demonstrate probable cause to search private property or a person for evidence of a crime. Search warrants detail the probable cause and an associated "return" lists items seized during a search.
Under current Utah rules, search warrants become public records 20 days after they are returned to the courthouse. However, Utah's vague rule allows many of the warrants to remain permanently sealed at the request of prosecutors.
"Some prosecutors seem to be sealing search warrants as a matter of practice rather than in exceptional circumstances," SPJ said. "Assistant Attorney General Scott Reed acknowledged in a KSL television story [last] year his agency frequently feels the need to request a judge seal search warrants."
Unlike Utah's records law, there is no weighing the public interest when search warrants are sealed. SPJ has suggested a more transparent sealing process and requirements to open records after a "sunset date." Under such a plan, prosecutors still could extend secrecy when justified.
SPJ points to cases where secrecy was unnecessary, including one involving the killing of Millard County Deputy Josie Greathouse Fox. Utah's attorney general convinced a judge that opening the warrants could hamper the investigation. But when SPJ and news outlets challenged the seal, a judge found nearly all the facts had already been reported in the news.
SPJ members are hoping to meet with Durham and court administrators to discuss the problem. SPJ's suggested rule changes are good ones:
• Require courts to assign search warrants identification numbers and post list of the warrants online in a manner similar to civil and criminal cases. This creates transparency and accountability. Right now there is no way to even know of the existence of a warrant unless it comes to light through other means.
• Better enforce the 20-day public disclosure requirement. Carlisle notes it sometimes takes weeks after the 20-day deadline passes before Matheson Courthouse clerks in Salt Lake City pass along public search warrants.
• Better define the standards to seal a warrant. In this case, a public-interest weighing test, similar to one used in Utah's Government Records Access and Management Act, could be used.
• Require sealed search warrants be unsealed after a certain time unless the petitioner requests a legitimate extension.
Joel Campbell is a former reporter and current associate professor of communications at Brigham Young University. His reporting does not necessarily reflect the views of BYU. He writes on First Amendment and open-government issues for The Tribune. He can be reached at firstname.lastname@example.org.