In Re Search Warrants ( 2011 )

¶ 1. The State appeals a decision of the superior court’s criminal division denying its motion to seal executed search warrants and accompanying documents associated with an investigation involving a missing couple. The criminal division denied the motion based on its conclusion that the State had failed to make the kind of particularized showing of harm required by our holding in In re Sealed Documents, 172 Vt. 152, 153, 772 A.2d 518, 521 (2001) (holding that public had presumptive right to search warrant documents “which may be overcome only through a specific showing of substantial harm to public or private interests”). The court also denied the State’s motion for a stay of its order pending appeal, reiterating that the State had presented only generalized claims of harm that could be made in any investigation.

¶ 2. The standard for reviewing a request for a stay pending appeal is well-settled:

To prevail on a motion for stay, the moving party must demonstrate: (1) a strong likelihood of success on the merits; (2) irreparable injury if the stay is not granted; (3) the stay will not substantially harm other parties; and (4) the stay will serve the best interests of the public.

Gilbert v. Gilbert, 163 Vt. 549, 560, 664 A.2d 239, 245 (1995). Regarding the likelihood of the State prevailing on the merits of its challenge to the criminal division’s refusal to seal the requested documents, we note that the instant matter involves circumstances not present in In re Sealed Documents that militate in favor of a more cautionary approach to releasing the search warrant documents. In In re Sealed Documents, the victims of the crime were deceased and the suspects in custody. Here, in contrast, the putative victims are missing and no suspects are in custody. Under these circumstances, both the State and the public have a heightened interest in not undermining the criminal investigation through the revelation of facts not generally known to the public. Although the public and the press generally have a presumptive right to court documents, that right may be trumped by the State’s, as well as the public’s, interest in preserving the investigation of a potentially serious crime, especially when the right to access does not serve as a cheek against an unjust conviction, excessive punishment, or the unwarranted taint of criminality.

¶ 3. Accompanying the motion to seal, the State submitted affidavits describing particular facts not known to the general public that were discovered during the search of the putative victims’ home and property. The State alleged that the release of those facts to the public could undermine its criminal investigation, which is still in its early stages with the putative victims still missing and no suspects in custody. If we were to deny the State’s request for a stay, it would effectively preclude the State from appealing the criminal division’s decision and potentially hamper its investigation. Under these circumstances, it is appropriate to stay the matter until the underlying legal issue is resolved. See In re Sealed Documents, 172 Vt. at 164-65, 772 A.2d at 528-29 (“In the event of an appeal from the court’s decision, no access to the documents or sealed order and record shall be granted until the matter has been finally resolved.”); cf. 1 V.S.A. § 317(c)(5) (making exempt from public inspection “records dealing with the detection and investigation of crime, including those maintained on any individual or complied in the course of a criminal or disciplinary investigation by any police or professional licensing agent”).

¶ 4. The dissent notes that the State is seeking to seal all of the search warrant documents when it could have simply redacted any information that posed a threat to its investigation. As the dissent acknowledges, however, in its motion to seal the State offered the possibility of redacting certain information or documents, but the court nonetheless denied the motion outright without providing the State any opportunity to redact. That is the decision that has been appealed •— the only question before us at this particular juncture is whether we should stay pending appeal the wholesale denial of the motion to seal.

The criminal division’s order denying the State’s motion to seal the search warrant documents and pleadings is stayed, and public access to those documents — apart■ from the paragraphs quoted in Justice Dooley’s dissent — is denied, pending this Court’s resolution of the State’s appeal of the order.