Search and seizure records are public records under the state FOIA. The records of what are seized from the subject of the search are still the public’s business. Comm’r of Emergency Servs. & Pub. Prot. v. Freedom of Info. Comm’n, 2018 Conn. LEXIS 355 (Oct. 24, 2018):
The department asserts that the documents do not relate “to the conduct of the public’s business” as that term is used in § 1-200 (5) because they were created by a private individual and not the department. The commission found that the documents related to the public’s business for the following reasons: (1) “there was heightened public interest generally in the shootings and, specifically, in knowing how and why the shootings occurred”; (2) “the requested documents informed the investigation”; (3) “significant public resources were expended in conducting a massive, [yearlong] investigation, and in examining gun control measures and mental health issues arising out of the shootings”; and (4) “there will be no criminal prosecution through which the public otherwise would have any access to the requested documents ….” (Emphasis omitted.)
The trial court disagreed with this analysis, rejecting the notion that the question of whether a document was a public record for purposes of the act would depend on the public’s interest in a particular criminal investigation. Instead, the trial court concluded that, “although documents may be privately created and perhaps do not ‘[relate] to [the conduct of] the public’s business’ at the time of their creation, the fact that they were lawfully seized by the police means that there was probable cause to believe that, at a minimum, they constitute ‘evidence of an offense, or … evidence that a particular person participated in the commission of an offense ….’ [General Statutes § 54-33a (b) (3)]. At that point, they do relate to the public’s business. For these reasons, the court concludes that documents seized pursuant to a search warrant ‘[relate] to the conduct of the public’s business’ and therefore constitute public records under the act.” (Footnote omitted.)
In determining whether documents seized during the investigation of a crime are public records under the act, we are mindful that the purpose of the act is “to balance the public’s right to know what its agencies are doing, with the governmental and private needs for confidentiality. … [I]t is this balance of the governmental and private needs for confidentiality with the public right to know that must govern the interpretation and application of the [act].” (Internal quotation marks omitted.) Dept. of Public Safety v. Freedom of Information Commission, supra, 298 Conn. 726. With this in mind, we agree with the trial court that documents that are not created by an agency, but come into its possession because there was probable cause to believe that they constitute “evidence of an offense, or … evidence that a particular person participated in the commission of an offense,” relate to the conduct of the public’s business. General Statutes § 54-33a (b) (3).
Moreover, our interpretation that documents seized by the police are public records under the act is consistent with other provisions of the act. For instance, as discussed previously in this opinion, § 1-215 (b) provides in relevant part that “[a]ny personal possessions or effects found on a person at the time of such person’s arrest shall not be disclosed unless such possessions or effects are relevant to the crime for which such person was arrested.” See footnote 8 of this opinion. If we were to accept the department’s claim that items, more specifically documents, seized by the police in the investigation of a crime do not constitute a public record, this provision exempting some seized items from the act would be meaningless. As we have explained, we must interpret statutes so as not to render any term meaningless. See, e.g., Connecticut Podiatric Medical Ass’n v. Health Net of Connecticut, Inc., supra, 302 Conn. at 474. Accordingly, we reject the department’s claim that documents seized by law enforcement in the present case are not public records.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)