FL1: Def didn’t show grounds for access to unredacted SW affidavit

Defendant did not make a sufficient showing to get access to the sealed portion of the affidavit for search warrant by simply saying that the information in the affidavit was likely stale. He needed to avail himself of the discovery process to make a record for appeal. Hill v. State, 2020 Fla. App. LEXIS 13354 (Fla. 1st DCA Sept. 24, 2020):

Hill insists that he did not need to make such a showing because he was not seeking information about a confidential informant. But Hill misses the point. The State claimed that the sealed affidavit concealed so much sensitive information that redaction of the information about the confidential informant would leave a document containing only boilerplate language. So, based on the State’s assertion, whether or not Hill was actively seeking the identity of the confidential informant, unsealing the search warrant affidavit could reveal the identity of a confidential informant. And because the State asserted that the sealed affidavit included information exempt from disclosure, the burden shifted to Hill to show a specific reason why disclosure was still warranted. See Treverrow v. State, 194 So. 2d 250, 252 (Fla. 1967) (“[S]ince it is the State which has the privilege of nondisclosure, the burden is upon the defendant claiming an exception to the rule to show why an exception should be invoked.”); Chamblin, 418 So. 2d at 1154 (“The general rule is that the State has the privilege of nondisclosure of the identity of a confidential informant, and the burden is on the defendant to show why disclosure should be compelled.”). A bare allegation that defense counsel is unable to prepare a defense without the requested information is not enough. See Thomas v. State, 28 So. 3d 240, 244 (Fla. 4th DCA 2010). And so, defense counsel’s general argument in the trial court that he needed the affidavit to prepare Hill’s defense was not sufficient to compel the trial court to unseal the affidavit.

Hill’s counsel’s specific reason for seeking disclosure also falls short of making the showing required to unseal the affidavit. At the hearing on the motion to unseal the affidavit, Hill’s counsel argued that he believed the affidavit stemmed from stale information as no sales or distribution took place at the residence in the thirty days before the officers executed the search warrant.

The State countered that the lack of drug activity at Hill’s home before the execution of the warrant was immaterial because the State charged Hill with possession, not sale. And Hill did not testify that he did not possess drugs at the residence. After the State challenged the basis for Hill’s motion to unseal the affidavit, Hill advanced no other reason why the information in the affidavit was necessary to prepare his defense. Because Hill did not meet his burden to show a specific reason why he needed access to the sealed affidavit that the State asserted contained information on a confidential informant, the trial court did not abuse its discretion by denying the motion without conducting an in camera review of affidavit. See State v. Carter, 29 So. 3d 1217, 1219 (Fla. 2d DCA 2010) (holding that a trial court need not conduct an in camera review when a defendant does not make an initial showing of necessity for the confidential information to support a specific defense).

Even so, if Hill still believed that there was information in the affidavit to which he was entitled and wanted to challenge the State’s asserted reason for nondisclosure, he should have availed himself of the procedures outlined in Florida Rule of Criminal Procedure 3.220(m) and made a record for appellate review. See Damren v. State, 838 So. 2d 513, 519 (Fla. 2003) (“[W]here doubt existed as to whether the State must disclose a particular document, the proper procedure is to have a trial judge conduct an in camera review of the documents.” (quoting Rose v. State, 774 So. 2d 629, 636 (Fla. 2000))). Rule 3.220(m) provides that a trial court may consider sensitive matters in camera to determine whether sensitive matters should be disclosed. And when a trial court grants relief to a party seeking to restrict disclosure of sensitive matters, the rule requires “the entire record of the proceeding … be sealed and preserved and be made available to the appellate court in the event of an appeal.” Fla. R. Crim. P. 3.220(m)(3).

When the government invades a home by a search warrant, the homeowner has no right to know exactly why? I just don’t get this. Why doesn’t the Fourth Amendment entitle anyone the right to know why and how it happened?