On Appeal from Superior Court, Chittenden Unit, Criminal Division James R. Crucitti, J.
The opinion of the court was delivered by: Burgess, J.
In re Essex Search Warrants (2011-228)
PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.
¶ 1. BURGESS, J. The State appeals from the Chittenden Criminal Division's denial of its motion to seal search warrants and related materials generated during an ongoing investigation into a missing Essex couple. The court determined that the State failed to show with specificity, as required under In re Sealed Documents, that disclosure would cause "substantial harm to public or private interests." 172 Vt. 152, 153, 772 A.2d 518, 521 (2001). The State asserts foundationally that there is neither a First Amendment nor a common law right of access to search warrant materials in an active, pre-arrest investigation, and argues that Sealed Documents' presumptive right of access should not apply in such cases. Instead, the State urges this Court to hold that there is no right of access to such materials under the Vermont Rules for Public Access to Court Records (PACR Rules). Assuming that Sealed Documents applies to pre-arrest investigations, however, the State claims error in the court's conclusion that the standard for sealing was not satisfied. Finally, the State asserts that the court erred in turning down its request for an evidentiary hearing. We see no error in the court's refusal to conduct a further hearing, but reverse its determination that the State failed to cite sufficiently specific reasons to seal the warrant information.
¶ 2. Despite the dissent's hyperbole, this holding meets the facts of this particular case, and presents no reversal, let alone defiance, of our case law or rules. Post, ¶ 42. Just because application of Sealed Documents does not yield the result preferred by the dissent, it signals no departure from the requirement of specific and compelling reasons for sealing search warrant documentation from public inspection. Id. Nor does it follow that the balance between presumed public access and necessary confidentiality in ongoing police investigations is torn asunder, id., rather than confirmed as provided for in the PACR Rules. See V.R.P.A.C.R. 6(a), (b)(15) (providing for general public access to "case records" subject to exemption for "[r]ecords of the issuance of a search warrant," until the warrant's return, unless sealed by the court).*fn1 Correctly describing its difference with the majority as over the meaning of the standard in Sealed Documents, the dissent then incorrectly characterizes the majority's reading of the case as a "change" in that standard. Post, ¶¶ 52, 55.
¶ 3. William and Lorraine Currier of Essex, Vermont were reported missing on June 9, 2011. The Curriers were last seen on June 8 leaving work and evidence suggests that they were at their home at 8 Colbert Street in Essex at around 7 p.m. that night. The couple's abandoned car was found on June 10 less than a mile from their home.
¶ 4. Essex police obtained a series of search warrants from the Chittenden Criminal Division as part of the investigation into the Curriers' disappearance. On June 15, a Burlington Free Press reporter requested from the court copies of the search warrants issued for the Curriers' home and car, as well as their cell phones, bank account, and credit card receipts. The court denied the request because the search warrant returns had not yet been filed. On June 16, the State moved "to seal search warrants, applications for search warrants, and affidavits filed in support of the search warrants, that were filed in connection with the [Currier] investigation." The court denied this motion, again citing the fact that the search warrant returns had not been filed.
¶ 5. On June 21, Essex Police filed returns for four of the search warrants executed during the Currier investigation, as well as inventories and affidavits filed in support of the warrants, and the State renewed its motion to seal the search warrants.*fn2 At the time of the State's renewed motion, no arrest had been made in connection with the Curriers' disappearance. The court denied the State's motion, requesting more information about how disclosure of the search warrant materials would harm the investigation, such as what facts remained known only to police and any putative suspect and how this balance of information was useful to the investigation.
¶ 6. The State responded with a supplemental renewed motion to seal. This motion, supported by the affidavit of Essex Police Detective Lawton, listed the information contained in the search warrants believed to be known only to police and any putative suspect in the Curriers' disappearance.*fn3 The State specified that disclosure of search warrant materials would frustrate police evaluation of the credibility of citizen reports by comparison against information known only by police. The Lawton affidavit further posited that because police did not know whether the information collected was relevant to the Curriers' disappearance, or how so, disclosure of the search warrants "would significantly hamper" the investigation by "allow[ing] a suspect to easily avoid detection and/or respond to police questioning. . . . unduly influenc[ing] the recollection of true witnesses, or allow[ing] any false witnesses to tailor information to fit with what is already known by police." The State also suggested redaction of the non-public information contained in the warrant materials as an alternative to sealing, though it questioned whether redaction would be practical in this case.
¶ 7. The court again denied the motion and ordered that the search warrants be released. The court reasoned that Sealed Documents created a presumption in favor of disclosure that the State failed to overcome with "compelling reasons" showing "substantial harm, demonstrated with specificity with respect to each document." The court characterized the State's arguments in support of sealing as "only general assertions that the police investigation will be jeopardized if the [search warrants are] released."
¶ 8. The State then requested a stay until an evidentiary hearing could be held at which Essex Police could testify in support of sealing and the State could argue for redaction. The court refused to grant a stay, explaining that the State proffered no additional information to what had already been offered. The State appealed and requested a stay pending appeal, which the court also denied. This Court, however, granted the State's motion for a stay pending appeal, explaining that denial "would effectively preclude the State from appealing the criminal division's decision and potentially hamper its investigation." In re Search Warrants, 2011 VT 88, ¶ 3, 190 Vt. 572, 27 A.3d 345 (mem.).
¶ 9. While this appeal was pending, a suspect in the disappearance of the Curriers was taken into custody and the State withdrew its motions to seal the search warrants and related material that form the subject of this appeal. Consistent with this action, the Attorney General informed the Court of his position that all of the material in question should be available to the public. Upon request by the Burlington Free Press, this Court ordered the release of the material and, in a separate order, directed the parties to show cause why the appeal should not be dismissed as moot. Both parties responded that, while technically moot, the appeal should be decided nevertheless under the settled exception for cases "capable of repetition, yet evading review." State v. Tallman, 148 Vt. 465, 469, 537 A.2d 422, 424 (1987) (quotation omitted). We agree.
¶ 10. The applicability of this particular exception turns on a two-part test: "(1) the challenged action must be in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there must be a reasonable expectation that the same complaining party will be subjected to the same action again." Id. (quotation omitted). We have applied the exception on at least two occasions to address the propriety of orders sealing documents in pending criminal matters where the underlying criminal cases resolved during the pendency of the appeal. See State v. Schaefer, 157 Vt. 339, 345, 599 A.2d 337, 341 (1991) (applying exception to rule on propriety of order sealing affidavit of probable cause, despite dismissal of the criminal case during appeal); Tallman, 148 Vt. at 469, 537 A.2d at 424-25 (applying exception to address validity of order sealing affidavit of probable cause and closing suppression hearing to the public, although defendant was acquitted during pendency of appeal). As observed in Tallman, pre-trial orders of this nature tend to be "short-lived," and news organizations challenging such orders could reasonably expect to be subjected to similar restrictions in the future. Tallman, 148 Vt. at 469, 537 A.2d at 424-25 (citation and quotation omitted).
¶ 11. As events here demonstrate, the orders at issue in this case are of a similar nature. With the arrest of a suspect, the State's rationale for sealing the search warrant materials and the stay order preventing their disclosure consequently became moot. It is reasonable to expect that this chain of events would likely occur in any future investigation involving pre-arrest search warrants. It is equally reasonable to expect that the State and the media will confront each other again over the same issue in the future, but be frustrated, due to recurring mootness, in their effort to obtain a final judicial determination of their respective obligations and rights relative to public access to these kinds of records.
¶ 12. Furthermore, as explained below, while this case ultimately turns on the application of the Sealed Documents standard, it also depends upon the meaning of that standard and its interplay with the PACR Rules. That these are matters of legal, rather than factual, contention yet to be resolved by this Court militates in favor of review, as well. See Schaefer, 157 Vt. at 345, 599 A.2d at 341 (finding that the appeal raised unresolved legal questions about the proper standard to apply in balancing the right to a fair trial against the right to access, while cautioning that as legal issues are resolved cases "will become more fact specific" and the legal issues less likely to recur or evade review in the future); cf. State v. Rooney, 2008 VT 102, ¶ 15, 184 Vt. 620, 965 A.2d 481 (mem.) (declining to address a moot order where "the applicable standard has already been decided in previous cases, and our analysis, were we to reach the merits, would be wholly factual"). As the following discussion and vigorous dissent make clear, the question of how the Sealed Documents decision governs disclosure of warrant documents vis-a-vis PACR Rules 6(b)(15) and 7(a) presents an issue of first impression not already decided. Accordingly, we conclude that this appeal satisfies the criteria for review under Tallman.
¶ 13. The State preliminarily asserts that there is neither a First Amendment nor a common law right of access to search warrant materials when, as here, an investigation is active and no arrests have been made. Sealed Documents declined to address these issues, 179 Vt. at 156, 772 A.2d at 523, and we need not reach them here because the State did not raise them below. See In re Shenandoah LLC, 2011 VT 68, ¶ 18, 190 Vt. 149, 27 A.3d 1078 (explaining that issues not argued below are not reviewable on appeal). For the same reason, we also decline to consider the State's argument that Sealed Documents should not apply in active, pre-arrest investigations.*fn4 See id. Rather, our decision today is limited to whether the Sealed Documents standard for sealing was satisfied under these facts.*fn5
¶ 14. We review the court's decision on the motion to seal for abuse of discretion. See Sealed Documents, 152 Vt. at 163-64; 772 A.2d at 528 (explaining that on remand "[t]he court shall determine in its discretion whether and to what extent the contents of each document shall be protected under seal"). "[A]n abuse of discretion is the failure to exercise discretion or its exercise on reasons clearly untenable or to an extent clearly unreasonable." State v. Amler, 2008 VT 1, ¶ 5, 183 Vt. 552, 944 A.2d 270 (mem.) (quotation omitted). "When a trial court commits an error of law, it is an abuse of discretion." Spooner v. Town of Topsham, 2010 VT 71, ¶ 7, 188 Vt. 293, 9 A.3d 672.
¶ 15. Reiterating points made below, the State maintains that sealing or redaction is justified under the Sealed Documents standard. It argues that disclosure of the search warrant materials would substantially threaten the Currier investigation by depriving police of the use of non-public information to, among other things, identify possible suspects, corroborate new information, and recognize false confessions. The Lawton affidavit, the State continues, identifies with requisite specificity the non-public information which, if disclosed, would threaten these law enforcement interests. These interests are not unimportant, and we hold that the trial court abused its discretion in concluding that the State's proffer and argument failed to meet the specificity requirements of Sealed Documents to authorize sealing certain search warrant records in this ongoing investigation.
¶ 16. We start with the PACR Rules and Sealed Documents. Rule 6 governs public access to "case records" and Rule 6(a) provides for access to "all case records," subject to the exceptions enumerated in Rule 6(b).*fn6 Rule 6(b)(15) excludes from public access "[r]ecords of the issuance of a search warrant, until the date of the return of the warrant, unless sealed by order of the court." This exception covers not only the record of the issuance of a search warrant, but also related materials, such as the application, supporting affidavit and inventory. See Sealed Documents, 172 Vt. at 158, 772 A.2d at 524 (explaining scope of Rule 6(b)(15) based on Court's decision in Tallman); see also Tallman, 148 Vt. at 472-73, 537 A.2d at 426-27 (holding search warrant affidavit is subject to disclosure under statute providing for public access to "records of the court"). Sealed Documents spelled out four conditions precedent to sealing a search warrant and related material, requiring that an order to seal must "determine specifically what information should be sealed and why." 172 Vt. at 162, 772 A.2d at 527.
¶ 17. Assuming, without deciding, the dissent is correct in its claim that Rule 7(a) is "the governing rule" in this case, post, ¶ 49,*fn7 we do not read it to establish a standard more demanding than Sealed Documents. To begin with, nothing suggests that the criteria of Sealed Documents are inadequate to serve and protect public access to court records. Indeed, Notes to Rule 7(a) repeatedly hold up Sealed Documents as a dissertation on a court's "authority to grant access to a closed record, to deny access to or seal an open record" and of "the standards and process necessary to exercise that authority." Reporter's Notes, Rule 7(a). Under Sealed Documents, and as more particularly reviewed below, warrant records may not be sealed unless the State can show a "substantial threat exists to the interests of effective law enforcement," with the "requisite showing of harm . . . demonstrated with specificity as to each document; general allegations of harm are insufficient." 172 Vt. at 161, 772 A.2d at 527 (emphasis and quotation omitted).
¶ 18. The import of these terms is further informed by the rationale summarized in our reversal of the trial court's decision to seal warrant records in Sealed Documents absent
any evidence that it clearly placed the burden of demonstrating a compelling need for confidentiality upon the State; that it analyzed each document separately in light of the State's arguments; that it considered alternatives short of a blanket order of nondisclosure; or that it made any fact-specific findings determining precisely what information contained in the disputed materials would result in the kinds of harm advanced by the State.
Id. at 163, 772 A.2d at 528 (emphasis added). Rule 7(a) authorizes an order to seal "only upon a finding of good cause specific to the case before the judge and exceptional circumstances." The dissent apparently understands the rule to require more than the Sealed Documents standard.
¶ 19. We disagree. The rule's test of "good cause specific to the case" and "exceptional circumstances" are practically indistinguishable from the "specificity" of harm presented by disclosure of particular documents, and that harm's "substantial threat . . . to . . . effective law enforcement" amounting to a "compelling need for confidentiality" demanded by Sealed Documents as a precondition to an order to seal. Compare V.R.P.A.C.R. 7(a), with Sealed Documents, 172 Vt. at 161, 163, 772 A.2d at 527-28. That the terms are synonymous is supported by the "policies behind this rule," V.R.P.A.C.R. 7(a), which, suggest the Notes, are reflected in "[t]he standards in In re Sealed Documents [that] will be particularly relevant in deciding whether to exercise the authority under this section." Reporter's Notes, V.R.P.A.C.R. 7(a). Nor can it be reasonably said that the State's proffer in this case failed to specify actual risk of false leads, distractions and resulting interference with its ongoing investigation into the Curriers' disappearance, or that such impediments and ...