Sample request letter to unseal a search warrant and affidavits

Sample letter to a judge requesting that a search warrant, return on the warrant and the affidavits be unsealed.
This courtesy of Therese Bottomly, managing editor/news, of The Oregonian

The Hon. Julie Frantz
Multnomah County Courthouse
1021 S.W. Fourth Ave., Suite 312
Portland, OR 97204

FOR THE COUNTY OF MULTNOMAH/ Case No. 04-01-30321 .

IN RE STATE OF OREGON, Plaintiff, v. Deniz Aydiner, Defendant.

Feb. 2, 2004

Dear Judge Frantz:

I, Therese Bottomly, managing editor/news for The Oregonian, a daily newspaper in Portland, respectfully request access to the search warrant affidavits, search warrant returns and arrest warrant affidavits in the above case. I understand those documents have been placed under seal, but no copy of the sealing order is public.

Although the Oregon Supreme Court has not ruled directly on the procedural issue of intervention by a member of the public or press in a judicial proceeding, it has held, in Oregonian Publishing Co. v. O’Leary, 303 Or 297, 301-02, 736 P2d 173 (1987), that “[m]embers of the media and public may *** assert in their own behalf ***” the open courts requirement of the Oregon Constitution.

Several circuit court judges in Oregon have therefore allowed intervention to the news media in similar circumstances. See, e.g., State v. Davey, Multnomah County Circuit Court No. C8811-37609 (Order dated November 6, 1989, per Judge Frankel); State v. Hurwitz, Multnomah County Circuit Court No. C98-1139654 (plea agreement unsealed by Judge Redding, pursuant to Oregonian motion, August 21, 2000).

Based on these authorities, I respectfully ask the court to treat this letter as a request to have certain court records unsealed. Specifically, I seek an order releasing for public inspection the affidavit or affidavits filed in support of the warrant that was issued for the arrest of defendant Aydiner and any search warrant affidavits and search warrant returns in the case.

Neither the Oregon Supreme Court nor the United States Supreme Court has decided whether there is a right of access to materials filed in connection with an arrest warrant application, either under the common law or under the First Amendment or other state or federal constitutional provisions. However, a right of access to search warrant materials has been recognized by several lower courts, both at common law and under the First Amendment. Thus, the Washington Supreme Court has held that there is a “presumption of openness” as a matter of common law that applies to a search warrant, affidavits filed in support of an application for a warrant, “and the records pertaining thereto.” Seattle Times Co. v. Eberharter, 713 P2d 710, 711 (Wash 1986). The U.S. Court of Appeals for the Fourth Circuit has agreed: “a newspaper has a common law right of access to affidavits supporting search warrants ***.” Matter of Application & Aff. For a Search Warrant, 923 F2d 324, 326 (4th Cir 1991).

Other courts have held that there is a right of access to such documents grounded in the First Amendment. “We are persuaded that the first amendment right of public access does extend to the documents filed in support of search warrant applications.” In re Search Warrant for Secretarial Area — Gunn, 855 F2d 569, 573 (8th Cir 1988).

Furthermore, whether the right is grounded in common law or in the First Amendment, ” *** [T]he party seeking access is entitled to a presumption of entitlement to disclosure. It is the burden of the party seeking closure *** to present facts supporting closure and to demonstrate that available alternatives will not protect his rights. ***.” Oregonian Pub. v. U.S. Dist. Court for Dist. of Or., 920 F2d 1462, 1467 (9th Cir 1990), cert denied sub nom Wolsky v. Oregonian Pub. Co., 501 US 1210, 111 S Ct 2809, 115 L Ed 2d 982 (1991).

And if a court decides that denial of public access is appropriate, it must state the reasons for its conclusions: “[t]he court must not base its decision on conclusory assertions alone, but must make specific factual findings.” Id. at 1466.

Here, there is no compelling reason for sealing the affidavits that were submitted in support of the arrest warrant for the defendant in this case. He is in custody, and there is no risk of flight. Sealing the warrants is not justified on the theory that it is necessary to avoid “tainting” the jury pool, for the fact of the defendant’s arrest in connection with the death of Kate Johnson is already public knowledge, and it is unlikely that public disclosure of the arrest warrant materials will widen the universe of people who are aware of the arrest and the pendency of the charges against the defendant.

In these circumstances, the affidavit or affidavits filed in support of the arrest warrant for Aydiner should be made available immediately for public inspection. The order sealing these documents should be vacated. If the sealing order is not vacated, the court should make specific findings of fact that justify the sealing.

Please do not hesitate to contact me if you have any questions about this request.

Respectfully submitted,

Therese Bottomly
Managing editor/news

Don Rees
Multnomah County District Attorney’s Office
1021 SW Fourth Avenue, Room 600
Portland, OR 97204

Attorney for the defendant:
Marc Sussman
1906 SW Madison
Portland , OR 97205


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