The local statewide newspaper sought search warrant materials involving a 2019 search warrant and four follow-up warrants in 2020. There was no showing by the issuing court to keep the information sealed under state statute. The person implicated in the investigation can’t keep it sealed. In re Appeal by an Implicated Individual, 2021 SD 61, 2021 S.D. LEXIS 113 (Oct. 27, 2021):
[*P18] The plain language of the statute provides an unmistakable expression of legislative intent. A court may seal the contents of an affidavit in support of a search warrant upon a showing of reasonable cause, but only until the investigation is terminated or an indictment or information is filed. The statute’s text is equally clear in its command that the court “may not prohibit” the public disclosure of other specific records, namely, the contents of the warrant, the return of the warrant, and the inventory. Nor may the court prohibit public disclosure of the fact that a search warrant affidavit has been filed. The Press, for its part, has not sought review of the portion of the circuit court’s amended orders sustaining its decision to seal the search warrant affidavits for the time being, and it would seem, from all appearances, that an elementary application of SDCL 23A-35-4.1 disposes of the disclosure issue before us.
[*P19] The Implicated Individual feels differently. The contrary argument posits that the judiciary possesses preeminent inherent authority to regulate its records. Accompanying this assertion is the corollary that our rules represent the exclusive means by which records may be sealed. As these claims relate to the particular circumstances here, neither is sustainable.
[*P20] To begin, we do not believe that this case implicates the judiciary’s inherent authority. It is true, as the Implicated Individual asserts, that we have promulgated rules governing access to court records. Our 2005 adoption of Rule 05-05 represents such an effort. See SDCL ch. 15-15A (reprinting Supreme Court Rule 05-05). However, we had no need to act under an imprecise concept of inherent authority. Instead, Rule 05-05 can be directly sourced to our “general superintending powers over all courts” expressly granted under the provisions of the South Dakota Constitution. See S.D. Const. art V § 12. Acting pursuant to this explicit grant of authority, we may adopt rules on, among other topics, “practice and procedure and … the administration of all courts.”
[*P21] Beyond this, our rules governing public access to court records, as drafted, do not support the Implicated Individual’s theory of unrivaled court authority. Though the Implicated Individual claims that the procedure set out in SDCL 15-15A-13 recognizes a court’s discretion to “prohibit public access to information in a court record[,]” the argument cannot withstand a more complete reading of the rule that requires a court to consider relevant statutory authority:
A request to prohibit public access to information in a court record may be made by any party to a case, the individual about whom information is present in the court record, or on the court’s own motion . . . . The court must decide whether there are sufficient grounds to prohibit access according to applicable constitutional, statutory and common law.
SDCL 15-15A-13 (emphasis added).
. . .
[*P28] In the end, the application of SDCL 23A-35-4.1 is unavoidable, and it means what it says—a court “may not prohibit disclosure that a supporting affidavit was filed, the contents of the warrant, the return of the warrant, nor the inventory.” Under the circumstances presented here, there is no constitutional collision course between coordinate branches of state government and no tension between our court rules and a plain and unambiguous statute. See Associated Press v. State, 153 N.H. 120, 888 A.2d 1236, 1256-57 (N.H. 2005) (holding that court rules regulating court records and statutes concerning public access to certain records can “coexist”). The provisions of SDCL chapter 15-15A and SDCL 23A-35-4.1, at least as far as they relate to the issue here, are easily reconciled using the cardinal rule of statutory interpretation—simply read the text and apply it.
"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, Let it Bleed (album, 1969)
"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]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"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)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
