NEWSPAPERS OF NEW ENGLAND, INC. vs. CLERK-MAGISTRATE OF THE WARE DIVISION OF THE DISTRICT COURT DEPARTMENT & others.
Supreme Judicial Court of Massachusetts
September 13, 1988. - December 22, 1988.
403 Mass. 628
HENNESSEY, C.J., WILKINS, ABRAMS, NOLAN, & LYNCH, JJ.
Hampshire.
An affidavit in support of a search warrant when filed upon the return of the warrant is a public document. [631] WILKINS, J., concurring.
In a murder case, a District Court judge appropriately on her own motion impounded an affidavit in support of a search warrant filed with the court where good cause, i.e., the government‘s interest in the defendant‘s right to a fair trial, existed for the order. [631-634] WILKINS, J., expressed his view on the standards governing impoundmеnt of judicial documents.
Discussion of cases addressing claims under the First Amendment to the Constitution of the United States of a right of access to judicial proceedings and judicial documents. [634-637]
There was no constitutionally guaranteed right of public access to an affidavit in support of a search warrant filed in the District Court, where the request for the document was made at such an early stage in the criminal proceedings that disclosure of the document might have deprived the dеfendant of his right to a fair trial unimpaired by prejudicial pretrial publicity. [637]
No basis existed after a defendant‘s trial and conviction for continuing in effect an order impounding an affidavit in support of a search warrant, properly entered at an early stage of criminal proceedings to protect the defendant‘s right to a fair trial. [637-638]
CIVIL ACTION commenced in the Ware Division of the District Court Department on July 14, 1987.
The case was heard by Ann M. Gibbons, J.
District Attorney for the Northwestern District, and Kenneth Phoenix. Neither the district attоrney nor Phoenix is a party to this appeal.
Raymond R. Randall for the plaintiff.
H. Reed Witherby, Assistant Attorney General, for the Clerk-Magistrate of the Ware Division of the District Court Department.
James C. Heigham, for Massachusetts Newspaper Publishers Association, amicus curiae, submitted a brief.
LYNCH, J. The plaintiff, Newspapers of New England, Inc., filed an action in the Ware Division of the District Court Department, challenging a judge‘s order impounding an affidavit in support of a search warrant issued in the course of an investigation which ultimately led to the indictment and conviction of Kenneth Phoenix for murder in the first degree.2 The judge had impounded the affidavit during the pendency of the criminal proceedings against Phoenix. The judge who impounded the affidavit reported this action to the Appellate Division of the District Court,3 which upheld the impoundment order. The plaintiff appealed, and we transferred the case to this court on our own motion. Wе conclude that, at the time the order was issued, the judge did not abuse her discretion in impounding the affidavit.4
There is no material dispute concerning the facts. On July 3, 1987, police arrested Kenneth Phoenix for the August 4, 1986, murder of Raymond Green, and Phoenix was arraigned in the District Court on July 6, 1987. Prior to the arrest, a
On the day the warrant was returned, a reporter for the Holyoke Transcript-Tеlegram, a newspaper published by the plaintiff, requested access to both the search warrant and the affidavit. The clerk-magistrate allowed the reporter to see the search warrant, but denied access to the affidavit. After another request on July 10, 1987, a judge held an open hearing at which the plaintiff‘s counsel requested access to the affidavit claiming it was a public record. Neither the Commonwealth nor Phoenix had filed a motion to impound. The District Court judge ruled that, even if the newspaper had a legal right of access to the affidavit, that right must be balanced against Phoenix‘s right to a fair trial in a pending case. After reviewing the affidavit and balancing these competing rights, the judge, sua sponte, ordered the affidavit impounded. Although Phoenix had been arrested and arraigned in the District Court, neither he nor his counsel was present at the July 10, 1987, impoundment hearing.
On July 14, 1987, the plaintiff commenced the present action challenging the judge‘s July 10, 1987, impoundment order. A heаring was held on July 21, 1987, at which the judge upheld her earlier decision to impound the affidavit. Although the judge ruled that the affidavit was not a public record and the newspaper did not have a present legal right of access, she further ruled that, even if there were such a right, after balancing the right of access against Phoenix‘s fair trial rights and considering corrective alternatives, justice required impoundment. Phoenix was represented at this hearing and opposed the plaintiff‘s request thаt the order of impoundment be vacated.5 The Appellate Division ruled that, although the newspaper had a right of access under the First Amendment to the United States
The plaintiff maintains its right to immediate access to the affidavit upon its return to and filing with the court. We first decide whether the impoundment order was correct under our statutory or common law and only then, if necessary, do we decide if any cоnstitutional principles are affected.
1. Public record. The judge ruled that an affidavit in support of a search warrant is not a public record, and, therefore, the plaintiff had no present right of access. However,
The affidavit‘s status as a “public” document does not rest entirely on
2. Impoundment authority. The fact that search warrant affidavits are “public records” does not mean that a court lacks impoundment authority. As we have said recently: “It is within the discretion of a court to impound its files in a case and to
In H.S. Gere & Sons, supra, the plaintiff sought relief from an impoundment order sealing the entire file, including the settlement agreement, in a civil case. There we stated that the judge must balance the parties’ privacy concerns against the “general principle of publicity.” Id. at 329. Through this balancing process, “a judge must determine whether ‘good cause’ to order impoundment exists and must tailor the scope of the impoundment order so that it does not exceed the need for impoundment.” Id., citing Ottaway Newspapers, Inc. v. Appeals Court, supra at 550 n.17 (the scope of an impoundment order should not exceed the need). See Rule 8 of the Rules of the Trial Court; Rule 7 (“good cause” requirement) and Rule 8 (order must specify material to be impounded and duration) of the Uniform Rules of Impoundment Procedure. It should be noted, however, that in this case the judge was not balancing the competing interests of publicity agаinst privacy but rather balancing publicity against a defendant‘s right guaranteed by the Sixth Amendment to the United States Constitution to a fair trial.
Protecting a defendant‘s right to a fair trial is undeniably a substantial government interest. Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508 (1984) (Press-Enterprise I) (“No right ranks higher than the right of the accused to a fair trial“). In Gannett Co. v. DePasquale, 443 U.S. 368 (1979), the Supreme Court emphasized the importance of a defendant‘s fair trial right when considering a claim of access to a pretrial suppression hearing. The Supreme Court stated,
Here, the plaintiff asserts its right of access to the affidavit immediately upon its filing in court, prior to Phoenix‘s being indicted, prior to any suppression hearings, and presumably prior to the defendant or his attorney‘s having an opportunity to read it. Furthermore, it is to be noted that the murder took place in a small rural community where the murder, the year-long investigation, and the arrest of Phoenix received extensive news media coverage. See Columbia Broadcasting Sys. v. United States Dist. Court, 729 F.2d 1174, 1181 (9th Cir. 1983) (“Almost all the cases in which the Supreme Court has found that press coverage deprived the defendant of a fair trial have been tried in small rural communities“). See also Sheppard v. Maxwell, 384 U.S. 333, 361 (1966) (“Given the pervasiveness of modern communications and the difficulty of effaсing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused“). The judge‘s findings demonstrate that she relied on the nature of the community; the prearrest, investigatory nature of the information contained in the sixteen-page affidavit; the multiplicity of sources for the information contained in the affidavit; that some of the information may be suppressible or inadmissible at trial and that a warrant need only be supported by a showing of probable cause.
3. First Amendment right of access. In challenging the impoundment order the plaintiff argues that the First Amendment, applicable to the States through the Fourteenth Amendment to the United States Constitution, provides a qualified constitutional right of access to the affidavit that can be denied only on a shоwing of a compelling governmental interest. The plaintiff relies on a quartet of recent Supreme Court decisions articulating a First Amendment right to open criminal proceedings. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982). Press-Enterprise I, supra. Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986). (Press-Enterprise II). See note 7, supra.
None of the four Supreme Court decisions dealt with the right of access to pretrial, prearrest investigative documents but rather the First Amendment claim in those cases was based on a right of access to the actual criminal proceeding in question. In Richmond Newspapers, Inc., supra at 580, the Court held that the First Amendment guaranteed the public the right to attend criminal trials. In Globe Newspaper Co., supra at 611 & n.27, the Court struck down a rule of automatic mandatory closure of the courtroom during the testimony of minor victims in a sexual offense trial. The Court then concluded that the First Amendment right of access to a criminal trial included a voir dire hearing in the course of trial. Press-Enterprise I, supra at 505-510. Finally, in Press-Enterprise II, supra
These cases articulate a two-part test for determining whether a First Amendment right of access applies to any particular proceeding. First, the proceeding must have an historic tradition of openness, and second the public‘s access must play “a significant positive role in the functioning of the particular process in question.” Press-Enterprise II, supra at 8. In applying this test to claims of a constitutional right of access to judicial documents, some courts have looked to the proceeding to which the documents relate.9 See, e.g., Press-Enterprise II, supra at 10-13 (right to transcript of preliminary hearing based on right of access to hearing itself); Press-Enterprise I, supra at 513 (right to transcript of voir dire based on right of access to voir dire itself); Matter of the New York Times Co., 828 F.2d 110, 114 (2d Cir. 1987) (access to documents filed in connection with pretrial suppression motion based on access to hearing); In re Washington Post Co., 807 F.2d 383, 389-390 (4th Cir. 1986) (First Amendment right of access to plea and sentencing hearings carries with it right to documents filed in connection with the hearing); Associated Press v. United States Dist. Court, 705 F.2d 1143, 1145 (9th Cir. 1983) (access to pretrial proceedings carries with it right to pretrial documents). The affidavit in question has no integral relationship with any particular pretrial proceeding to which the public enjoys a First Amendment right of access.
Two courts have addressed the issue of а First Amendment right of access to search warrant affidavits, and have come to opposite conclusions. In Seattle Times Co. v. Eberharter, 105 Wash. 2d 144 (1986), the plaintiff sought access to a search warrant affidavit filed with the court. The Supreme Court of Washington held that a common law and not a First Amendment standard governed the sealing of a search warrant affidavit in a case where a criminal complaint had yet to be filed. Id. at 147. Applying the two-part test to determine whether a First Amendment right of access exists, thе court ruled: (1) “Unlike trials, the historical record reveals no English or American tradition of public access to search warrants,” and (2) “review will occur when the prosecution attempts to introduce, at trial, evidence obtained as a result of this probable cause determination . . . [and] immediate public access is not required for the effective functioning of the process itself.”11 Id. at 152-153.
Furthermore it is not to be forgotten that, in the present case, Phoenix‘s Sixth Amendment right to a fair trial is being invaded by disclosure and that, when the plaintiff first asserted its right of access to the search warrant affidavit, Phoenix had yet to be indicted or subject to any criminal proceeding where the affidavit was in issue. There can be no doubt that in appropriate circumstances a defendant can require the closure of a pretrial suppression hearing and the impoundment of the documents involved in that hearing. Press-Enterprise II, supra at 14-15. It would therefore appear to be contrary to a defendant‘s inchoate rights to conclude that First Amendment rights of public access attach to documents inculpating a defendant at such an early stage in the proceeding so as to deprive or seriously impair a defendant‘s ability to assert those rights.
We, therefore, conclude that no constitutionally guaranteed right of access to the affidavit existed at the time the plaintiff
So ordered.
WILKINS, J. (concurring). This case deals with a claim of access to an affidavit asserted after a search warrant had been executed and returned to court and after criminal proceedings had been commenced. The newspaper makes no claim undеr the State Constitution. By statute and common law, the affidavit was public. In my view the judge‘s duties with respect to impoundment do not depend on whether there is a First Amendment right of access to such a document.
In many instances, there are clear governmental interests in the nondisclosure of the contents of such a filed affidavit, particularly prior to the completion of an investigation. It seems important in this respect that the prosecutor did not initially seek impoundment of the аffidavit. In the face of a statute that made the affidavit public, I question whether a clerk-magistrate had any right to deny access to it. Although perhaps a judge could make an impoundment order on her own motion, in general the question of impoundment is one that a prosecutor should raise in protection of the government‘s interest and that a defendant (or target of the search) could raise in protection of his interests.
A judge confronted with a motion to impound or to lift an impoundment order must consider and decide the case on its particular facts. See Uniform Rules of Impoundment Procedure (1988); Rules 7 and 8 of the Rules of the Trial Court (1988). Cf. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 609 (1982) (mandatory rule closing trial is unconstitutional).
The adverse consequences of disclosure of the contents of the affidavit would seem likely to have paled in comparison with the consequences of the disclosure, already made, that the criminal defendant had been charged with murder in the first degree. Could the affidavit have been redacted? Would not careful jury selection procedures at the time of trial, months later, eliminate any possible prejudice to the criminal defendant‘s right to a fair trial?
The question is now moot. We all agree the order should be dissolved. Thus there is no reason to seek new findings made on a proper standard. It would seem that an impoundment order such as was issued here should include a provision that it will automatically be dissolved at least as early as the conclusion of the criminal proceedings.