N.C. Court of Appeals Affirms Order Sealing Search Warrant

In a decision released today, the North Carolina Court of Appeals affirmed a trial court order sealing three search warrants and related materials in a high-profile murder case in Cary, North Carolina. The decision, In re Cooper, represents the first instance in which a North Carolina appellate court has squarely addressed the standards applicable to orders sealing search warrant materials, and it resulted in a set back for press interests in North Carolina.

The case arose out of the investigation into the death of Nancy Cooper.  In July 2008, the Cary Police Department and the State of North Carolina submitted three applications for search warrants in connection with the investigation into Nancy Cooper's murder.  With respect to each of the three search warrants, the trial court entered orders sealing the applications, the search warrants themselves, and the returns for a period of 30 days.  Each of the search warrants related to Nancy Cooper's husband, who was ultimately arrested in October 2008 and charged with her murder.  He has maintained his innocence, and the charges remain pending.

In sealing the search warrant materials, the trial court found that the materials fell within the scope of N.C. Gen. Stat. s. 132-1.4(c), which outlines certain information that is a matter of public record, as well as N.C. Gen. Stat. s. 132-1.4(k), which specifically provides that;

The following court records are public records and may be withheld only when sealed by court order: arrest and search warrants that have been returned by law enforcement agencies, indictments, criminal summons, and nontestimonial identification orders.

However, the trial court concluded that N.C. Gen. Stat. s. 132-1.4(e) authorized sealing the material because release would jeopardize the right of the State to prosecute a defendant or the right of a defendant to a fair trial or would undermine an on-going investigation.  The trial court also referenced an administrative order in place in Wake County, North Carolina since May 2008 relating to the sealing of search warrant materials, which allowed motions to seal to be made ex parte.

Upon learning of the sealing orders, WRAL-TV and The News and Observer moved to unseal all the materials covered by the three sealing orders.  The trial court denied the media's motion to unseal.  In August 2008, the trial court extended the period in which the search warrants and related materials would remained sealed.  An appeal then ensued.

Even though the search warrant materials were eventually released during the pendency of the appeal, the Court of Appeals addressed the merits of the media's appeal under the familiar exception to the mootness doctrine for cases "capable of repetition, yet evading review."  Challenges to sealing orders, like challenges to gag orders, public records and open meetings disputes, and other access issues, often run their course on a time frame too short to permit full litigation and appeal.

The Court of Appeals analyzed the case under the federal appellate decision of Baltimore Sun Co. v. Goetz.  The court agreed with the media that the search warrant materials "are ordinarily considered public records and are open for the public's review."  The court also rejected the trial court's conclusion that N.C. Gen. Stat. s. 132-1.4(e) supported sealing the materials.  As the court  pointed out,  that provision refers only to public records listed in N.C. Gen. Stat. s. 132-1.4(c)(1)  through (c)(5), which do not expressly refer to search warrants.

However, the court also concluded that the sealing of the search warrant materials was not an abuse of discretion because a trial court "may, in the proper circumstances, shield portions of court proceedings and records from the public."  The court found the considerations cited by the trial court -- the right to prosecute a defendant, fair trial, and preserving the integrity of an on-going investigation -- were sufficient to support the sealing orders under N.C. Gen. Stat. s. 132-1.4(k).

The Court of Appeals also rejected the media's argument that the public enjoyed a common-law right of access to the search warrant materials under Goetz.  It gave little consideration to this argument, concluding that the passage of legislation concerning access to search warrants (i.e., N.C. Gen. Stat. s. 132-1.4(k)) supplanted any common-law right of access.  The court  did not address the fact that the statute provides no standards by which orders sealing search warrants are to be measured.

Finally, the Court of Appeals rejected the media's constitutional arguments as well.  In Goetz, the Fourth Circuit held that the test for determining whether there exists a First Amendment right of access to judicial records such as search warrant materials is as follows:

The test for determining whether a first amendment right of access is available is: 1) "whether the place and process have historically been open to the press and general public," and 2) "whether public access plays a significant positive role in the functioning of the particular process in question."

If these two prongs are met, then a qualified right of access exists, which may be overcome only through proof that a sealing order is narrowly tailored to serve a compelling government interest.

The Court of Appeals concluded that search warrants fail the first prong of the Goetz test, citing Goetz. Although Goetz indeed found no First Amendment right of access to search warrant affidavits, that case did not address access to search warrants themselves or to their returns.  In fact, in Goetz, the magistrate did not seal the warrant, the return, or the inventory, which the Goetz court noted in describing the procedural requirement that trial courts consider alternatives to sealing documents.

The Court of Appeals in Cooper went on to find that the procedural requirements set out in Goetz had been satisfied.  According to the Fourth Circuit in Goetz, any order "closing trial proceedings must 'be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.'"  In addition, the court must consider alternatives.  The Fourth Circuit in Goetz vacated the order sealing the search warrant affidavit for failure to abide by these procedural requirements.  In Cooper, however, the Court of Appeals found these procedures met through the trial court's finding that the considerations outlined in N.C. Gen. Stat. s. 132-1.4(e) would be implicated by release of the search warrant materials.

As to the fact that the trial court, unlike in Goetz, sealed all the search warrant materials and not just the affidavits, the court explained that revealing portions of these materials would have been impractical and would have frustrated the purpose of sealing the affidavits, given that all of the materials related to Nancy Cooper's husband and to their marital relationship.  The court also noted that the sealing order was of limited duration, which it found indicated the trial court  considered the least restrictive means of keeping the information secret.

Finally, the Court of Appeals rejected the media's argument that the "open courts" provision of the North Carolina Constitution, Article I, Section 18, required access to the search warrant materials.  It found that while the open courts provision creates a qualified right of access to criminal records and documents, that qualified right was overcome in this case by the considerations recited in the trial court's sealing order.

D.C. Court Unseals Search Warrant Materials Related to 2001 Anthrax Attacks

A few months ago, we reported about access to search warrant materials and the Eve Carson case in North Carolina.  In the Carson case, the trial court released the search warrant materials under the common-law right of access once the police investigation of Carson’s death had been completed. 

In November 2008, the U.S. District Court for the District of Columbia recognized a qualified First Amendment right of access to search warrant materials related to the completed 2001 anthrax attack investigations.  Specifically, the district court ordered search warrants materials related to Dr. Stephen J. Hatfill and Ms. Peck Chegne (Hatfill’s girlfriend at the time of the searches) to be unsealed.

As has been well reported by the news media, the federal government in 2002 identified Dr. Hatfill as a “person of interest” in the anthrax mailings.  Investigators conducted a search of his residence in August 2002, and the search garnered significant media attention.  The investigation of Hatfill went on for some time, but ultimately the government determined Hatfill was not the anthrax mailer.  Then, in July 2008, the government announced that it believed Dr. Bruce Ivins was responsible for the anthrax attacks after Dr. Ivins committed suicide.  Following this announcement, several media organizations filed papers with the court to unseal the search warrant materials related to Hatfill, Chegne, and Ivins—the Ivins materials were unsealed by the court in September 2008, but the Hatfill and Chegne materials remained under seal.

The question before the district court in this case was whether the public has a common-law right of access to post-investigation search warrant materials (a right the government conceded in the case) or a qualified First Amendment right of access. The court recognized the distinction between a right of access based on the common law or on the First Amendment as significant because different legal standards apply to each.

The common law right of access test is a multi-factor balancing test. If the First Amendment qualified right of access applies, however, the government has the burden of demonstrating that a compelling interest is advanced by denying access to the documents and that the denial of access is narrowly tailored to serve that interest.

In other words, it would be much more difficult to justify keeping the search warrants sealed under a First Amendment analysis than a common-law analysis.

To decide this matter of first impression in the D.C. Circuit, the district court applied a well established two-part test to determine whether a First Amendment right of access should apply to search warrant materials related to investigations that have concluded.  Under the “‘experience’ and ‘logic’ test,” the court analyzes two factors:

(1) whether the place and process have historically been open to the press and general public, and (2) whether ‘public access plays a significant positive role in the functioning of the particular process in question.’

The district court found that factor one of the test weighed in favor of a First Amendment qualified right because, according to the court, the post-investigation search warrant materials sought in the case are of a kind that have historically been available to the public.  Warrant applications and returns are routinely filed with the clerk of court without seal.  Moreover, federal courts have recognized a common-law right of access to judicial records and documents for well over 100 years, clearly establishing a tradition of access.

Factor two of the test likewise supported a First Amendment based right of access. In considering the second factor, the court first stated that it would start with the “proposition” (not explicitly a “presumption”) that the press and the public have a right of access to court proceedings and documents unless there is some compelling justification for closure.  According to the court, such openness ensures that established procedures are followed or, if not, that irregularities are corrected.  It also boosts the public’s confidence in the judicial process.

Regarding search warrant materials, in particular, the court stated:

[W]ith respect to warrants, openness plays a significant positive role in the functioning of the criminal justice system, at least at the post-investigation stage. As noted by the Times, warrant materials are often used to adjudicate important constitutional rights such as the Fourth Amendment protection against unreasonable searches and seizures. Public access to warrant materials serves as a check on the judiciary because the public can ensure that judges are not merely serving as a rubber stamp for the police.

With both factors of the “‘experience’ and ‘logic’ test” met, the court found that the public has a qualified First Amendment right of access to post-investigation search warrant materials.  Because the First Amendment right of access is qualified and not absolute, the search warrant materials at issue in the anthrax case would remain sealed if the government was able to show a “compelling interest” in keeping the materials from public view.  Of course, demonstrating a compelling interest favoring closure after an investigation has been completed is generally more difficult than when an investigation is still under way. 

In the case of the anthrax investigation, the government first attempted to justify keeping the search warrant materials secret to protect Hatfill’s privacy, but the court did not find this interest sufficient to justify keeping the materials sealed.  According to the court, Hatfill’s association with the anthrax case was already well known, so there was no risk that the identify of some “innocent third person” would be disclosed to the media for the first time.  Also, as the court noted, Hatfill filed a lawsuit against the Department of Justice (now settled) and, therefore, “placed some details of the searches in the public eye.”

The government also argued that there was a compelling interest in keeping the search warrant materials secret to protect the identities of confidential informants.  The court agreed that protecting confidential informants constitutes a compelling interest; but, according to the court, there are less restrictive means to protect the identifies of informants than outright denying access to the materials.  The court wrote:

Under the First Amendment qualified right of access test, the government must demonstrate that total restriction of the right of access is narrowly tailored to accomplish its compelling interests. In this case, the Court agrees that the government has demonstrated a compelling interest—promoting effective law enforcement—in keeping the identity of informants secret. However, that interest can be accomplished by simply redacting the identity and personal identifiers of the informants, which the Court will direct the government to do in this case.

The court ordered that the search warrant materials concerning Hatfill and Chegne should both be disclosed, subject to limited redactions to protect the identities of confidential informants.  Even though Chegne was “an innocent party and [had] not put any of the details regarding the searches in the public eye,” her identity and the fact that her residence was searched during the anthrax investigation had already been reported by the media and disclosed by Hatfill in his lawsuit.

Although the court found that the media applicants prevailed on the basis of the First Amendment qualified right of access, the court also analyzed the case under the common law and found that media would prevail under the common law.

This case is a definite victory for media organizations, but it should be noted that the court was careful to point out that its ruling was narrow.  The court clarified that it did not recognize a First Amendment right “as robust” as that recognized in the Eighth Circuit, which recognizes a right of access to search warrant materials while an investigation is still open.  The court also stated that its holding did not conflict with decisions of the Fourth and Ninth Circuits, which have both declined to recognize a First Amendment qualified right of access to warrant materials while an investigation is still ongoing—neither the Fourth or the Ninth Circuits have decided whether there is such a right once an investigation has concluded.

Media Access to Search Warrants

High-profile criminal investigations and trials frequently set the stage for conflict between the news media, law enforcement agencies, and criminal defendants.  While law enforcement reasonably wishes to preserve its ability to successfully investigate and prosecute the case, the media reasonably desires to engage in constitutionally protected newsgathering activities and inform the community about those activities.  Of course, the criminally accused want to protect their constitutional right to a fair trial by an impartial jury.  One of the issues over which the media, law enforcement, and criminal defendants may disagree is access to search warrants materials—when access should be granted, how much access should be granted, and the procedures that must be followed if access is denied.  Indeed, there have been a number of conflicts involving search warrants over the past few months—the Eve Carson investigation is just one recent highly publicized example.

Access to search warrant applications, returns, and supporting materials (such as affidavits) implicates the First Amendment as well as state law.  The United States Supreme Court held in Globe Newspaper Co. v. Superior Court and Richmond Newspapers, Inc. v. Virginia that the First Amendment grants the public and the press a qualified First Amendment right to attend criminal trials.  And, in Press-Enterprise Co. v. Superior Court, the Court held that this First Amendment right also applies to pretrial proceedings in criminal cases.  However, there is some disagreement among jurisdictions about whether there is a First Amendment-based right of access to search warrant materials. 


The Eighth Circuit recognized a First Amendment right of access to search warrants in In re Search Warrant for Secretarial Area Outside Office of Thomas Gunn (Gunn I).  In Gunn I, the Eighth Circuit framed the test for overcoming the First Amendment right and the procedures to be followed in this way:

The party seeking closure or sealing must show that such a restriction of the first amendment right of public access is necessitated by a compelling government interest. If the district court decides to close a proceeding or seal certain documents, it must explain why closure or sealing was necessary and why less restrictive alternatives were not appropriate. The district court’s findings must be specific enough to enable the appellate court to determine whether its decision was proper; if the district court decides that a restriction of the first amendment right of public access is warranted, the district court can even file its statement of reasons and specific findings under seal. (Citations omitted.)

Other jurisdictions, including the Fourth Circuit, have not recognized a constitutional right.  But even in these jurisdictions, some right of access generally does exist. For example, the Fourth Circuit in Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir. 1989), recognized a qualified common law right of access, holding that a judicial officer may only deny access to search warrant materials “when sealing is ‘essential to preserve higher values and is narrowly tailored to serve that interest.'”  The standard for sealing search warrants under the common law in the Fourth Circuit is very nearly the same as the First Amendment standard articulated in Gunn I.


As the Eighth Circuit did in Gunn I, the Fourth Circuit in Baltimore Sun imposed procedural requirements on judges issuing orders to seal search warrant materials.  The public has a right to notice of a sealing order and an opportunity to voice objections.  Moreover, the court must make findings of fact and conclusions of law regarding the public interest in openness versus closure and the tailoring of the sealing order sufficient to allow for appellate review of the sealing order—“conclusory assertions are insufficient; specificity is required.”


The struggle between the public right to know, law enforcement’s interest in preserving its investigation, and the criminally accused’s right to a fair trial played out recently in the Eve Carson case, which gained national attention when the UNC student body president was killed in March 2008.  Law enforcement requested orders sealing search warrant applications, returns, and other supporting documents in order to protect their ongoing investigation and to protect the safety of confidential informants.  When law enforcement would not release the search warrant materials two weeks after two people had been indicted for Carson’s murder, the Durham Herald-Sun newspaper initiated proceedings to obtain access.  In evaluating the Herald-Sun’s motion to intervene and unseal the search warrants, the judge in the case applied the Baltimore Sun test and initially denied access in order to allow law enforcement additional time to complete the investigation.  The judge’s orders are provided here and here.


When the matter came up for hearing a second time, nearly two months later, the court granted the Herald-Sun’s motion to unseal the search warrant materials over the objections of one of the defendants who raised concerns about alleged dangerous pre-trial publicity.  The unsealing orders are provided here and here.

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