A sealed warrant is a warrant that is based on secret sworn statements made to a magistrate in closed proceedings and never disclosed to the defendant.
The Fourth Amendment provides that searches and seizures must be authorized by a judicially issued warrant and that the warrant must be based on probable cause to believe that specified items will be found in the place to be searched. Probable cause is based on sworn statements in what is called the warrant's "supporting affidavit". Ever alert to enhance government's prerogatives, the Supreme Court has riddled the Amendment with "limited exceptions". Nevertheless, particularly where residences are concerned, the Warrant Requirement remains the rule.
A police search based on a duly issued warrant presumptively satisfies the Fourth Amendment. However, the key word is "duly". Where the person seeking the warrant makes false or inaccurate statements in his affidavit, the warrant only has the "colour" of law but in actuality fails to comply with the Constitution. In such cases, a defendant is entitled to traverse (i.e. "to attack") the warrant. (Franks v. Delaware (1978) 438 U.S. 154, 155-156.) If, on traversal, the affidavit is shown to contain material misstatements impacting the existence of probable cause then the warrant is quashed. Once the warrant is quashed, the evidence seized is suppressed unless there is some very rare exception that saves the search.
However, where a warrant is "sealed" it is impossible to traverse it, for the simple reason that a defendant has no way of knowing what was or was not alleged in the supporting affidavit. In such cases, a defendant is entitled to an in camera hearing before a magistrate, during which the magistrate evaluates (1) whether the affidavit contains materially false statements; and (2) whether there is a reasonable probability that those false statements would undermine the existence of probable cause. If the answers to these questions are "yes" then the the court gives the prosecution the choice of (1) agreeing to "unseal" the affidavit and allowing the defendant to proceed with his motion to suppress or (2) keeping the affidavit sealed but automatically loosing on the motion to suppress. (People v. Hobbs (1994) 7 Cal.4th 948)
A very common variant of the sealed warrant is a warrant in which the affidavit is open but the identity of a "confidential informant" is withheld; i.e. what is kept under seal is just the name or identifying data of the informant. In these cases a similar procedure is followed. On motion, the magistrate evaluates whether the informant's identity is a fact which would bear on the existence or reliability of probable cause and should therefore be disclosed to the defendant. If so, then the prosecution has the same to choices as before: (1) disclose and proceed to argument or (2) refuse to disclose and accept the sanction. (People v. Luttenberger (1990) 50 Cal.3d 1.)
In all three types of cases -- Franks affidavit traversals, Luttenberger informant-disclosures and Hobbs unsealings (followed by traversals) -- the defendant must make some preliminary showing that there is reason to believe material misstatements were made or that there is a reasonable likelihood that the informant's identity bears on the veracity or existence of probable cause.
The entire concept of sealed warrants has been described as Kafkaesque and as inimicable to the principles of open courts and public trials. Under the sealed warrant procedure a defendant is always left stumbling in the dark and, just as bad, dependent on the good offices of a magistrate. It has been a maxim of jurisprudence since Roman times that nemo judex in propria causa -- but the Hobbs/Luttenberger procedures allow the courts to be the judge their own actions.
Of course, ultimately, a judge must determine whether another judge or magistrate has acted properly; but he typically does so after the defendant has marshalled his adversarial evidence and arguments. In the sealed warrant cases the courts retain prior control over what evidence (and hence arguments) the defendant is able to make. The opportunity for under-cover abuse is obvious.
It is certainly the case, as a practical matter, that law enforcement must at times preserve confidentiality of their sources and secrecy of their investigations. No one has ever succesfully claimed that a defendant is entitled to monitor his own investigation. However, to say that police have a need for secrecy during an investigation does not necessarily imply an ongoing need for secrecy after the investigation has successfully resulted in the bringing of criminal charges.
The concept of an open and public trial mandates that once charges have been brought, the cards are put on the table so that the issue may be adversarial tested and tried. " But.. but... " the police whine, "if we have to disclose our sources we can't re-use them." Tough. This is like a soldier claiming he has a right to reuse the cannon ball or bullet he has just fired. "But.. but..." comes the protest, "we have to protect our sources." It is true that informants always are exposed to a risk of retaliation. But whatever reasonable steps are taken to protect a person, the ultimate fact remains that if "secret" persons are allowed to incriminate others under perpetual shield then they have been given an opportunity to lie and hurt others with impunity. That is a greater evil to all than the risk of retaliation against an individual.
The whole concept of sealed warrants is rife with mischief and is subversive of constitutional government, as we had understood it.
©Justin Law, 2009
A police search based on a duly issued warrant presumptively satisfies the Fourth Amendment. However, the key word is "duly". Where the person seeking the warrant makes false or inaccurate statements in his affidavit, the warrant only has the "colour" of law but in actuality fails to comply with the Constitution. In such cases, a defendant is entitled to traverse (i.e. "to attack") the warrant. (Franks v. Delaware (1978) 438 U.S. 154, 155-156.) If, on traversal, the affidavit is shown to contain material misstatements impacting the existence of probable cause then the warrant is quashed. Once the warrant is quashed, the evidence seized is suppressed unless there is some very rare exception that saves the search.
However, where a warrant is "sealed" it is impossible to traverse it, for the simple reason that a defendant has no way of knowing what was or was not alleged in the supporting affidavit. In such cases, a defendant is entitled to an in camera hearing before a magistrate, during which the magistrate evaluates (1) whether the affidavit contains materially false statements; and (2) whether there is a reasonable probability that those false statements would undermine the existence of probable cause. If the answers to these questions are "yes" then the the court gives the prosecution the choice of (1) agreeing to "unseal" the affidavit and allowing the defendant to proceed with his motion to suppress or (2) keeping the affidavit sealed but automatically loosing on the motion to suppress. (People v. Hobbs (1994) 7 Cal.4th 948)
A very common variant of the sealed warrant is a warrant in which the affidavit is open but the identity of a "confidential informant" is withheld; i.e. what is kept under seal is just the name or identifying data of the informant. In these cases a similar procedure is followed. On motion, the magistrate evaluates whether the informant's identity is a fact which would bear on the existence or reliability of probable cause and should therefore be disclosed to the defendant. If so, then the prosecution has the same to choices as before: (1) disclose and proceed to argument or (2) refuse to disclose and accept the sanction. (People v. Luttenberger (1990) 50 Cal.3d 1.)
In all three types of cases -- Franks affidavit traversals, Luttenberger informant-disclosures and Hobbs unsealings (followed by traversals) -- the defendant must make some preliminary showing that there is reason to believe material misstatements were made or that there is a reasonable likelihood that the informant's identity bears on the veracity or existence of probable cause.
The entire concept of sealed warrants has been described as Kafkaesque and as inimicable to the principles of open courts and public trials. Under the sealed warrant procedure a defendant is always left stumbling in the dark and, just as bad, dependent on the good offices of a magistrate. It has been a maxim of jurisprudence since Roman times that nemo judex in propria causa -- but the Hobbs/Luttenberger procedures allow the courts to be the judge their own actions.
Of course, ultimately, a judge must determine whether another judge or magistrate has acted properly; but he typically does so after the defendant has marshalled his adversarial evidence and arguments. In the sealed warrant cases the courts retain prior control over what evidence (and hence arguments) the defendant is able to make. The opportunity for under-cover abuse is obvious.
It is certainly the case, as a practical matter, that law enforcement must at times preserve confidentiality of their sources and secrecy of their investigations. No one has ever succesfully claimed that a defendant is entitled to monitor his own investigation. However, to say that police have a need for secrecy during an investigation does not necessarily imply an ongoing need for secrecy after the investigation has successfully resulted in the bringing of criminal charges.
The concept of an open and public trial mandates that once charges have been brought, the cards are put on the table so that the issue may be adversarial tested and tried. " But.. but... " the police whine, "if we have to disclose our sources we can't re-use them." Tough. This is like a soldier claiming he has a right to reuse the cannon ball or bullet he has just fired. "But.. but..." comes the protest, "we have to protect our sources." It is true that informants always are exposed to a risk of retaliation. But whatever reasonable steps are taken to protect a person, the ultimate fact remains that if "secret" persons are allowed to incriminate others under perpetual shield then they have been given an opportunity to lie and hurt others with impunity. That is a greater evil to all than the risk of retaliation against an individual.
The whole concept of sealed warrants is rife with mischief and is subversive of constitutional government, as we had understood it.
©Justin Law, 2009
No comments:
Post a Comment