Probable Cause Affidavits Open in Kansas, 0515 KSBJ, 84 J. Kan. Bar Assn 5, 21 (2015)

AuthorMax Kautsch and Mike Kautsch, J.

Probable Cause Affidavits Open in Kansas

Vol. 84 J. Kan. Bar Assn 5, 21 (2015)

Kansas Bar Journal

May, 2015

Max Kautsch and Mike Kautsch, J.

For 35 years, Kansas law enforcement officers made arrests and conducted searches on the basis of probable cause affidavits that generally were closed to public view.[1] In 2014, however, the Kansas Legislature opted for openness and made the affidavits a matter of public record. The Legislature accomplished the change by amending K.S.A. 22-2302 and K.S.A. 22-2502, which relate to arrests and searches, respectively. The amendments established a presumption that the probable cause information contained in affidavits executed after July 1, 2014, is accessible to members of the public upon request.2

The Legislature imposed on courts a somewhat complicated process for responding to requests for affidavits3 -a process that was destined to result in controversy and litigation.4 Nevertheless, when the amendments were enacted, the news media hailed them as a major victory for open government. Indeed, the Legislature's action brought Kansas law generally into line with a presumption in other states that probable cause affidavits should not be secret.5 The purpose of opening such records is to increase accountability of officials and public confidence in government.6

However, the change in Kansas law came as something of a surprise. For many years, Kansas media had called upon the Legislature to allow public inspection of probable cause affidavits.7 Still the call for openness had little impact until 2012, when a Leawood couple publicly disputed how and why Johnson County sheriffs deputies searched their home for illegal drugs in 2012.8The couple made headlines when they complained that the search was groundless, fruitless, and alarmingly aggressive, as in "some sort of police state."9 They further complained that, under Kansas law, they could not gain access to the probable cause affidavit filed in support of the search.[10] They wanted the warrant to learn why they had been targeted and, after litigating, eventually gained access to it.11A state legislator took interest in their cause and introduced a bill to open probable cause affidavits.12 It was examined at legislative hearings before the House and Senate Judiciary committees13 and was opposed by prosecutors, criminal defense attorneys and members of law enforcement.14 The bill nearly died in committee15 but, following 11th hour negotiations, the Legislature passed it by a vote of 123-1 in the House and 40-0 in the Senate.16

The resulting amendments to K.S.A. 22-2302 and 22-2502 reverse statutory language that had been in effect since 1979 and that presumed closure of probable cause information. The 1979 language required a court order for anyone to obtain an affidavit, other than the defendant in the criminal case to which the arrest or search was related.17

The purpose of this article is to analyze the intent behind the newly amended statutes and their provisions, as well as to shed light on the reasons for controversy over their implementation. It is hoped that the analysis will be helpful to prosecutors, defense counsel, and judges when notified that members of the public, including journalists, seek access to affidavits. The analysis will focus on considerations that, under the statutes, must be taken into account when a member of the public requests access to an affidavit.

I. The Presumption of Openness

Under K.S.A. 22-2302 and 22-2502 as amended, when a member of the public requests an affidavit, prosecution and defense attorneys may oppose the request. However, they bear the burden to show a judge why the affidavit should be withheld altogether or released only with redactions.

The presumption that an affidavit is open can be overcome, and probable cause information can be either sealed or redacted before disclosure, but only if the defense or prosecution provides "reasons" for sealing or redaction, and if the judge finds it "necessary to prevent public disclosure of information that would" cause at least one of nine harms enumerated in the statutes as amended."18 The enumerated harms include, for example, disclosure of an affidavit that would "interfere with any prospective law enforcement action, criminal investigation or prosecution."[19]Thus, under the newly amended statutes, disclosure of affidavits will occur, unless opponents meet the statutory requirement to submit reasons for no-disclosure and if the judge finds that disclosure "would" cause a harm listed in the statutes and that sealing or redaction is "necessary" to prevent the harm. Proper application of the newly a mended statutes balances the public's interest in open government with the interests of others, including the prosecution, defendant, and law enforcement.

The presumption that affidavits are open is in keeping with a long line of U.S. Supreme Court decisions reflecting the widely recognized public right to know about judicial matters.20 A presumption of openness for court records and proceedings was specifically established in Kansas in Kansas City Star v. Fossey in 1981 and reaffirmed in Wichita Eagle-Beacon Co. v. Owens 20 years later.21 The Kansas Supreme Court held that "a trial court . . . may seal the record of. . . proceedings. However, such closure is permitted only if the dissemination of information from the pretrial proceeding and its record would create a clear and present danger to the fairness of the trial, and the prejudicial effect of such information on trial fairness cannot be avoided by any reasonable alternative means."22 Moreover, "[t]he burden of proof is on the party making the motion" to seal.23

II. Legislative History

In 2014, the Legislature's enactment of a presumption of openness for affidavits reversed a limit on access that had lasted for 35 years. During that period, because the public's access to affidavits had depended on convincing a judge to order disclosure, affidavits generally remained inaccessible.

A. Thirty-five years of presumed closure

Before 1979, probable cause information was more or less freely available to courthouse reporters for newspapers.24 However, in that year, the Legislature amended the statutes that governed access to probable cause affidavits. The amended statues provided that the probable cause information was not "made available for examination without a written order of the court."25 As a result, the statutory amendments presumptively precluded anyone from obtaining affidavits other than the defendant in the criminal case to which the arrest or search was related. Their enactment followed a controversy involving a murder case in Douglas County that the Topeka Daily Capital was covering. A reporter for that newspaper "obtained the names of the two persons for whom warrants were issued by going into the office of the clerk of the district court.The criminal appearance docket was on a table in the back of the room. The room was divided by a counter and a swinging gate. It was the general practice for reporters from the news media to go through the gate, proceed to the table where the criminal appearance docket was kept and look through its pages. It is a public document or record which is kept by the clerk of the district court."26 The paper published the names of two suspects in the murder case prior to their apprehension on the warrants.27 Although one was tried and convicted, the other was never apprehended.[28]

For disclosing the arrest warrants, the newspaper suffered a backlash, particularly from the law enforcement community. Stauffer Communications Inc., owner of the Daily Capital, was convicted of violating a statute that prohibited disclosure of warrants before they were executed and returned, and the company successfully appealed the conviction.[29] In the context of the controversy over disclosure of the arrest warrants, a fateful development occurred in the form of a letter from the Sedgwick County District Attorney's Office to the chairman of the state Senate Judiciary Committee.30 The letter called the committee's attention to a ruling in Wilbanks v. State, 224 Kan. 66 (1978), in which the Kansas Supreme Court said that establishing probable cause for an arrest required more than generalizations couched in the language of a criminal statute."31 Instead, "sufficient factual information must be presented to enable the magistrate to make an independent finding of probable cause before a warrant is issued.[32] The letter from the Sedgwick County prosecutor expressed disappointment in the ruling because it "of course overrules 100 years of case law whereby, a verified complaint charging an offense which stems from the language of an [sic] statute was sufficient to support a warrant for arrest."33 Although the author of the letter said that his office would not "argue" with the new probable cause requirement, he said that he was aware of instances where "names of witnesses and victims have been published in the paper, and are available to friends of the defendant or defendant's [sic] themselves prior to arrest."34

Like those who had criticized the Daily Capital for publicizing arrest warrants not yet executed, the author voiced concern related to dissemination of information about alleged perpetrators before they were apprehended.[35] However, the author did not simply propose preventing premature disclosure of probable cause affidavits. Instead, he proposed that affidavits not be disclosed at all, except by written court order.36 The wording of the author's proposal was essentially the same as the legislative amendments that, later in 1979, established a presumption of closure of affidavits regardless of whether they had been executed or not.

The amendments allowed the presumption of closure to be overcome only if one who requested an affidavit could convince a judge that its disclosure would be in the public interest.37 Because...

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