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Kelly A. Aviles (SBN 257168) LAW OFFICES OF KELLY AVILES 1502 Foothill Blvd., #103-140 La Verne, California 91750 Telephone: (909) 991-7560 Facsimile: (909) 991-7594 Email: [email protected] Attorneys for CBS 8 San Diego; KNSD San Diego; KGTV ABC 10; FOX 5 San Diego; KCBS/KCAL; KNBC-TV; KTLA Los Angeles; Fox Television Stations, Inc., on behalf of its station KTTV; ABC Holding Co. Inc. dba KABC-TV; NBC News/Dateline; Cable News Network, Inc. (CNN); CBS Broadcasting, Inc./48 hours; ABC News, Inc.; The Associated Press; San Bernardino Sun; Los Angeles News Group; The San Diego Union-Tribune LLC; and Victorville Daily Press
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN THE COUNTY OF SAN DIEGO
IN RE SEARCH WARRANT NUMBERS 104-10, 113-10, 114-10, AND 115-10
) ) ) ) ) ) ) ) ) ) ) ) ) )
Matter No.: 10018139 NOTICE OF MOTION AND MOTION TO UNSEAL SEARCH WARRANTS, AFFIDAVITS, STATEMENTS OF PROBABLE CAUSE, AND RETURNS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Date: January 23, 2015 Time: 11:30 a.m. Dept.: 23 Judge: Hon. Runston G. Maino
NOTICE OF MOTION AND MOTION TO UNSEAL;
MEMORANDUM OF POINTS AND AUTHORITIES
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MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION & FACTUAL SUMMARY
This motion seeks access to search warrant numbers 104-10, 113-10, 114-10, and
115-10, along with the related affidavits, statements of probable cause, and returns
(collectively the “Warrants.”) The Media is informed by the San Diego County Sheriff’s
Department that the Warrants are related to the investigation of the murder of the
McStay family, which has been a story of overwhelming public interest. The disclosure of
the search warrants and related records is specifically mandated by California law. These
court records are subject to the presumption of public access established by the First
Amendment, California law, and the California Rules of Court.
The McStay family, went missing in February 2010. In November 2013, their
bodies were discovered in shallow graves in the desert, near Victorville. Approximately
one year later, on November 5, 2014, Charles Ray Merritt was arrested and charged with
the murder of the McStay family. The case is pending in San Bernardino Superior Court,
criminal court case no. FVI1404194.1 Merritt is currently being held in custody, without
bail. Merritt pled not guilty at arraignment on November 12. San Bernardino County
Sheriff John McMahon held a press conference on, November 7, 2014, to announce
Merritt’s arrest. During the press conference, Sheriff McMahon confirmed that “there’s
no information to suggest there were any other suspects involved in this crime.”2
At the time the search warrants were sealed, the homicide investigation was on-
going. Sealing was presumably requested and ordered so as to not jeopardize the on-
going investigation. The circumstances which supported the sealing of the above-
described warrants, and any other sealed warrants related to this action, have now
1 The Media will simultaneously be filing a similar motion to unseal warrants connected with the investigation, which were issued in the San Bernardino Superior Court. The Motion is set to be heard by the Honorable Michael A. Smith, Department S21 on January 30, 2015 at 8:30 a.m.
2 The video of the press conference can be viewed on the Sheriff’s YouTube channel, located at <https://www.youtube.com/watch?v=bpmssQ6hrSU&feature=youtu.be>
-1- MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION TO UNSEAL
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changed with the arrest of Charles Ray Merritt and transformed the nature of the
proceedings from an investigation to a prosecution. Therefore, the Media request that
this Court, following in camera review, issue an order unsealing the Warrants for
immediate public access.
The Media have been informed by the Jan Caldwell, Public Affairs Director of the
San Diego County Sheriff’s Department, that the Department does not oppose the
unsealing of the Warrants. Further, the Media contacted Steve Walker, Communications
Director of the San Diego County District Attorney’s Office to determine if they had any
opposition to the motion. In response, Mr. Walker stated that because the case is not
pending in San Diego, the San Diego County District Attorney’s Office “does not have
standing to agree or object.”
Society has a keen interest in the administration and operation of the criminal
justice system, including how courts authorize search warrants, and in how law
enforcement investigate deaths and criminal activity. Those interests are especially
prevalent here, where an arrest was not made for nearly five years after the McStay family
disappeared. The warrants and related information are critical to the public's
understanding of this case and the criminal process, in general.
II. THE MEDIA HAS STANDING TO MOVE TO UNSEAL COURT RECORDS
The Supreme Court first established the media’s standing under the First
Amendment with respect to access to court proceedings decades ago. (See Globe
Newspaper Co. v. Superior Court (1982) 457 U.S. 596, 609, fn. 25 (“Globe Newspaper”)
[“Of course, for a case-by-base approach to be meaningful, representatives of the press
and general public ‘must be given an opportunity to be heard on the question of their
exclusion.’”]; Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555, 580
(“Richmond”); Press-Enterprise Co. v. Superior Court (1984) 464 U.S. 501, 508-510
(“Press-Enterprise I”); Press-Enterprise Co. v. Superior Court ( 1986) 478 U.S. 1, 7
(“Press-Enterprise II”).) The First Amendment also gives the press and the public
standing to seek access to court records. (See, e.g., Phoenix Newspapers, Inc. v. United
-2- MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION TO UNSEAL
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States Dist. Court (9th Cir. 1998) 156 F.3d 940, 949 ["if a court contemplates sealing a
document or transcript, it must provide sufficient notice to the public and press to afford
them the opportunity to object or offer alternatives"]; Associated Press v. United States
Dist. Court (9th Cir. 1983) 705 F.2d 1143, 1147 (“Associated Press”).)
Like the First Amendment, the California Constitution provides a right of access to
court records, which the press and the public have standing to assert. (See Cal. Const.,
Art. I, § 2, subd. (a); NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20
Cal.4th 1178, 1216-1218, and fn. 36 (“NBC Subsidiary”); Copley Press, Inc. v. Superior
Court (1992) 6 Cal.App.4th 106, 113 (“Copley II”); Copley Press, Inc. v. Superior Court
(1998) 63 Cal.App.4th 367, 373 (“Copley III”) ["both the federal (U.S. Const., 1st Amend.)
and the state (Cal. Const., art. I,§ 2, subd. (a)) Constitutions provide broad access rights
to judicial records in criminal and civil cases."].) Indeed, as the result of the passage of
Proposition 59, there is now an express constitutional right of public access to all
"information concerning the conduct of the people's business." (See Cal. Const., Art. I, §
3, subd. (b).) Thus, "the writings of public officials and agencies shall be open to
public scrutiny." (Cal. Const., Art. I, § 3, subd. (b).) The right of access created by
Proposition 59 applies to court records. (Savaglio v. Wal-Mart Stores, Inc. (2007) 149
Cal.App.4th 588, 597 [recognizing constitutional right of access to civil court records
under Proposition 59].)3
Finally, California Rules of Court 2.550 and 2.551 apply to all court records, and
specifically give the public standing to seek the unsealing of court records: "A party or
member of the public may move, apply, or petition, or the court on its own motion may
move, to unseal a record." (Cal. Rules of Ct., rule 2.551, subd. (h)(2).)
3 The Media also has standing under common law to seek access to court records. (Nixon v. Warner Communications (1978) 435 U.S. 589, 597; Estate of Hearst (1977) 67 Cal.App.3d 777, 782.)
-3- MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION TO UNSEAL
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III. CALIFORNIA AND FEDERAL LAW PROVIDE FOR PUBLIC ACCESS TO SEARCH WARRANTS
California law provides that a search warrant may only issue upon a showing of
probable cause supported by an affidavit. (Cal. Pen. Code § 1525.) California law also
expressly requires that search warrants and related records be made public after
execution.
The documents and records of the court relating to the warrant need not be open to the public until the execution and return of the warrant or the expiration of the 10-day period after issuance. Thereafter, if the warrant has been executed, the documents and records shall be open to the public as a judicial record.
(Cal. Pen. Code § 1534(a) (emphasis added).)
Additionally, many of the federal circuits have expressly recognized a right of
public access to materials filed in support of search warrants, either under the First
Amendment or under common law. (See, e.g., In re Search Warrant (Gunn), supra, 855
F.2d at p. 573 [First Amendment right of access]; In re Baltimore Sun Co. (4th Cir. 1989)
886 F.2d 60, 65-66 [common law right of access]; Vermont v. Schaefer (1991) 157 Vt.
339, 599 A.2d 337, 348 [First Amendment right of access].) As one court recognized in
upholding the unsealing of a search warrant affidavit:
Society has an understandable interest not only in the administration of criminal trials, but also in law enforcement systems and how well they work. The public has legitimate concerns about methods and techniques of police investigation: for example, whether they are outmoded or effective, and whether they are unnecessarily brutal or instead cognizant of suspects' rights.
(In the Matter of Application and Affidavit for a Search Warrant (4th Cir. 1991) 923
F.2d 324, 331. Accord In re Search Warrant (Gunn), supra, 855 F.2d at p. 573 ["even
though a search warrant is not part of the criminal trial itself. . . a search warrant is
certainly an integral part of a criminal prosecution."].) Accordingly, federal law also
supports public access to search warrants and supporting records, as well as all other
court records and proceedings.
-4- MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION TO UNSEAL
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IV. PUBLIC AND MEDIA ACCESS TO JUDICIAL RECORDS IS GUARANTEED UNDER THE FIRST AMENDMENT AND CALIFORNIA LAW, AND CAN ONLY BE OVERCOME BY PROOF THAT SEALING IS “STRICTLY AND INESCAPABLY NECESSARY” TO OVERCOME A COMPELLING INTEREST
The First Amendment gives the press and the public the right to attend criminal
trials and proceedings, including access to records of these proceedings. (See, e.g., Waller
v. Georgia (1984) 467 U.S. 39 (Waller) [motions to suppress evidence]; Associated Press,
705 F.2d at 1146 [pretrial motions]; United States v. Brooklier (9th Cir. 1982) 685 F.2d
1162, 1172 (Brooklier) (motions to exclude evidence].)
The California courts have also long recognized a public right of access to court
records under both the free speech clause of the California Constitution and under
California common law. (Cal. Const., Art. I, § 2, subd. (a); NBC Subsidiary, supra, 20
Cal.4th at 1216-1218, and fn. 36; Copley III, supra, 63 Cal.App.4th at 373 ["both the
federal (U.S. Const., 1st Amend.) and the state (Cal. Const., art. I, § 2, subd. (a))
Constitutions provide broad access rights to judicial records in criminal and civil cases."];
Estate of Hearst (1977) 67 Cal. App. 3d at 782-784; Pantos v. San Francisco (1984) 151
Cal.App. 3d 258, 262-63.) Additionally, as the result of passage of Proposition 59, there
is an express constitutional right of public access to all "information concerning the
conduct of the people's business." (See Cal. Const. Art. I, § 3, subd. (b ).) This
constitutional right of access applies to court records. (Savaglio v. Mart Stores, Inc.,
supra, 149 Cal. App. 4th at 597 [recognizing constitutional right of access to civil court
records under Proposition 59].)
While the right of access is not absolute, both California and federal authorities
place a heavy burden squarely on the party seeking to maintain secrecy in order to justify
denial of the public's First Amendment rights. Secrecy must be '"strictly and inescapably
necessary"' to protect a compelling government interest. (Associated Press, 705 F.2d at
1146 [italics added]; Brooklier, supra, 685 F.2d at 1165-66; Copley III, 63 Cal.App.4th
at 374 [compelling reasons must establish why and to what extent records should be
made private].) The burden rests on the party seeking to deny public access to establish
-5- MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION TO UNSEAL
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compelling reasons why and to what extent those records should be made private. Mary
R. v. B. & R. Corp. (1983) 149 Cal.App.3d 308, 317.
An order denying access to court records must satisfy both the procedural and
substantive requirements of the First Amendment. (See United States v. Haller (2d Cir.
1988) 837 F.2d 84, 86; Copley III, 63 Cal. App. 4th at 374.) The presumption of openness
may be overcome only by evidence showing an overriding interest. (Press-Enterprise v.
Superior Court, 464 U.S. 501, 509-10 (1982) [closed proceedings, although not absolutely
precluded, must be rare and only for cause shown that outweighs the value of openness];
Oregonian Publ. Co. v. Dist. Ct. (9th Cir. 1990) 920 F.2d 1462, 1467 [vacating trial court’s
sealing order entered with “no evidentiary support”].)
A proponent of closure and/or sealing must also satisfy all of the following three-
part test to seal any portion of a court record, showing that: (1) sealing the records serves
a compelling interest; (2) there is a substantial probability that, in the absence of sealing,
this compelling interest would be harmed; and (3) there are no alternatives to sealing that
would adequately protect the compelling interest at issue. (Phoenix Newspapers, supra,)
156 F.3d at 949; Cal. Penal Code § 1534(a).)
In addition, public access to court proceedings and records cannot be denied
"unless specific, on the record findings are made demonstrating that 'closure is essential
to preserve higher values and is narrowly tailored to serve that interest."' (Press-
Enterprise II, 478 U.S. at 13-14; Copley I, supra, 228 Cal.App.3d at 84-85.) Thus, before
sealing may occur, the trial court must provide notice to the public and media, affording
afford them an opportunity to object, hold a prompt hearing on any objections to closure,
and make specific findings of fact in support of its determination that the proceedings
should be closed. (Brooklier, 685 F.2d at 1167-68; see also Press-Enterprise I, 464 U.S. at
509 [requiring findings specific enough for a reviewing court to determine if the closure
order was properly entered]; CBS, Inc. v. United States Dist. Court (9th Cir. 1985) 765
F.2d 823, 825; Oregonian Publishing Co. v. U.S. Dist. Court (9th Cir. 1990) 920 F.2d
1462, 1466, cert denied; Wolsky v. Oregonian Publishing Co. (1991) 501 U.S. 1210.)
-6- MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION TO UNSEAL
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California’s legislature and courts have equally guaranteed the public’s right of
access to court proceedings and records absent strict compliance with the compelling
interest test. (NBC Subsidiary, supra, 20 Cal.4th 1178, 1216-1218, and fn. 36; Copley II,
supra, 6 Cal.App.4th at 111; Cal. R. Court 243.1 and 243.2.) In NBC Subsidiary,
California’s Supreme Court specifically found that CCP section 124 requires that “the
sittings of every court shall be public,” and ruled that a trial court’s failure to provide
advance notice to the public of contemplated closures or sealing orders, or to make
findings required by the “compelling interest test,” violates section 124, as well as
California’s constitutional principles. (20 Cal.4th at 1200, citing Richmond Newspapers,
supra, 448 U.S. at 580-581) The Court in NBC Subsidiary concluded the trial court’s
failure to consider less restrictive alternatives, and its generalized “conjecture” that harm
might occur, was constitutionally impermissible, requiring reversal of all closure and
sealing orders. (Id. at pp. 1217-1218, 1225.) In Copley III, 63 Cal. App. 4th 367, the
Fourth District expressly held that sealed court records—even where they involve minors
and sensitive matters— must be rare and tolerated only where a more compelling interest
than the constitutional right of public access is shown. (Accord Globe Newspaper, supra,
457 U.S. at 606-607.)
In the wake of NBC Subsidiary, supra, 20 Cal. 4th 1178, California Rules of Court
regarding closed court proceedings and records were adopted mandating the compelling
interest test be followed for sealing any court records. Under those rules, court records
are presumed to be open. (See Rules 2.400, 2.550 and 2.551.) A record must not be filed
under seal without a court order. (Cal. R. Court 2.550.) Moreover, a party, member of
the public, or the court on its own motion, may move to unseal records. Ibid.
The court may order that a record be filed under seal only if it expressly finds that:
(1) There exists an overriding interest that overcomes the right of public access to the record;
(2) The overriding interest supports sealing the record;
(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;
-7- MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION TO UNSEAL
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(4) The proposed sealing is narrowly tailored; and
(5) No less restrictive means exist to achieve the overriding interest.
(Cal. R. Court 2.550, subd. (d).) These prerequisites to sealing of court records apply to
all civil and criminal cases. (Cal. R. Court 2.550 (Advisory Committee Comment).)
The Media is unaware of any compelling interest that has been demonstrated by
anyone to support the continued secrecy of the search warrants and related records in
this case. Further, the Media does not believe that any such showing could be made
because a defendant has been identified, and is currently being prosecuted. For instance,
courts have routinely rejected the conclusory or speculative assertions that pretrial
publicity will have a detrimental effect on a defendant's right to a fair trial are insufficient
to justify sealing. "The First Amendment right of access cannot be overcome by the
conclusory assertion that publicity might deprive the defendant of [the right to a fair
trial]." (Press-Enterprise II, 478 U.S. at 15; NBC Subsidiary, 20 Cal.4th at 1225. See also
Waller, supra, 467 U.S. at 46-48 [speculation that some harm or prejudice might occur
cannot meet the compelling interest test]; Globe Newspaper, supra, 457 U.S. at 609-10
[speculative claims do not justify closure].)
Additionally, although courts have recognized a need to protect the identity of
confidential informants, there is no evidence that these warrants were based on any
information obtained from confidential informants. Yet, even if that were the case, which
is unlikely for all sixty warrants at issue, this Court must review those documents in
camera and redact only the identities or confidential information from the informant.
(See, e.g., People v. Hobbs (1994) 7 Cal.4th 948, 962-964.)
Even if either interest could be sufficiently demonstrated, the proponents of
sealing must still show why alternatives to sealing, such as redaction of confidential
sources or information, careful voir dire (with individual and sequestered voir dire, if
necessary), peremptory challenges (increasing the number of peremptory challenges if
appropriate), assembling a larger than normal jury pool, instructions and admonitions to
the jury, postponement of trial, and/or change of venue would not sufficiently protect any
-8- MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF MOTION TO UNSEAL
