OH5: Trial court’s denial of defendant’s right of access to search warrant materials was error

The trial court erred in not ordering unsealing the search warrant materials in this case because the state did not show that the CI needed to be protected. The defendant was not seeking disclosure of the CI, just the basis for the search warrant, which he was entitled to know. State v. Lewis, 2011 Ohio 199, 2011 Ohio App. LEXIS 176 (5th Dist. January 18, 2011):

[*P21] “The Court believes that the Fourth Amendment right to be free of unreasonable searches and seizures includes the right to examine the affidavit that supports a warrant after the search has been conducted and a return has been filed with the Clerk of Court pursuant to Fed.R.Crim.P. 41. It is not, however, an unqualified right. As is true with other constitutional rights it may be overridden when it is shown that precluding access is ‘essential to preserve higher values and is narrowly tailored to serve that interest.’ Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510, 104 S.Ct. 819, 824, 78 L.Ed.2d 629 (1984). Thus, the right of access may be denied only where the government shows (1) that a compelling governmental interest requires the materials be kept under seal and (2) there is no less restrictive means, such as redaction, available. Clearly, the fact that there is an on-going criminal investigation could provide a compelling governmental interest. Cf. Baltimore Sun, 886 F.2d at 64. Other examples of compelling governmental interests which might, in an appropriate case, justify the extraordinary act of sealing warrant materials after the underlying search has been conducted include the presence of information in a supporting affidavit gleaned from a court ordered wire-tap that has yet to be terminated, or information that could reveal the identity of confidential informants whose lives would be endangered. Sealing may be appropriate under such circumstances if redaction is not feasible.” In re Search Warrants Issued August 29, 1994 (S.D. Ohio 1995), 889 F. Supp. 296, 299. Accord, In re Search Warrants Issued on April, 26, 2004 (D. Maryland 2004), 353 F. Supp.2d 584; United States v. Oliver (4th Cir. 2000), 208 F.3d 211.

[*P22] In the instant case, the trial court did not consider whether the state had a compelling governmental interest in protecting the identity of the CI sufficient to override appellant’s right to the affidavit. Further, the trial court did not consider less restrictive means, such as redacting the name of the CI, despite the state’s representation at the hearing that redaction was a possibility: …

[*P24] The trial court erred in denying the motion to unseal the affidavit on the basis that appellant had not demonstrated a need for the identity of the CI rather than determining whether the State had shown a compelling interest in protecting the identity of the CI. We cannot find as a matter of law that the State has shown a compelling interest in protecting the identity of the CI, as the record reflects merely a general statement that police are concerned about the safety of the CI without any specific details underlying that concern from which we can determine whether such concern rises to the level of a compelling state interest. Further, without the affidavit we cannot determine if redaction of information which could lead to disclosure of the identity of the CI is possible.